[Mb-civic] OP-ED COLUMNIST Our Battered Constitution By BOB HERBERT

[Michael Butler]

 The New York Times
February 4, 2005
OP-ED COLUMNIST
Our Battered Constitution
By BOB HERBERT

The Constitution? Forget about it.

Only about half of America's high school students think newspapers should be
allowed to publish freely, without government approval of their stories. And
a third say the free speech guarantees of the First Amendment go "too far."

This has thrown a lot of noses out of joint. Hodding Carter III, president
of the John S. and James L. Knight Foundation, which financed a two-year
study of high school attitudes about First Amendment freedoms, said, "These
results are not only disturbing - they are dangerous."

But maybe we shouldn't be so hard on the youngsters. After all, they've been
set a terrible example by a presidential administration that has left no
doubt about its contempt for a number of our supposedly most cherished
constitutional guarantees.

In an important decision on Monday, a federal judge in Washington ruled that
the Bush administration cannot be allowed to defy the Constitution and an
order of the Supreme Court in its treatment of the hundreds of prisoners it
is holding at Guantánamo Bay, Cuba. The judge, Joyce Hens Green, said the
administration must permit the detainees it is holding as "enemy combatants"
to challenge their detention in federal courts.

The administration has tried mightily to establish its right to treat anyone
who it determines is an "enemy combatant" any way it chooses. It has argued
that it can hold such detainees for a lifetime - without charging them,
without giving them access to lawyers, without showing them the evidence
against them and without allowing them to challenge their detention.

Administration officials are adamant on this matter, and yesterday they were
granted a stay of Judge Green's decision, pending an appeal.

The Supreme Court ruled last June that the administration was acting
illegally in depriving the detainees of their liberty without allowing them
to challenge the cases against them. The administration responded bizarrely.
Its lawyers argued, with "Alice in Wonderland" logic, that, yes, in
accordance with the Supreme Court's ruling, the detainees can challenge
their detention. But since (in the administration's view) they don't
actually possess any rights to support the challenges, the courts must
necessarily reject the challenges.

The administration is fighting for nothing less than the death of due
process for anyone it rounds up, no matter how arbitrarily, in its enemy
combatant sweeps. Such tyrannical powers should offend anyone who cares
about such old-fashioned notions as the rule of law, checks and balances,
and constitutional guarantees.

Under the procedures set up by the administration for dealing with the
detainees, we have no way of distinguishing between a terrorist committed to
mass murder and someone who is completely innocent.

In her decision, Judge Green wrote, "Although this nation unquestionably
must take strong action under the leadership of the commander in chief to
protect itself against enormous and unprecedented threats, that necessity
cannot negate the existence of the most basic fundamental rights for which
the people of this country have fought and died for well over 200 years."

The fundamental right in the case of the Guantánamo detainees is the right
not to be deprived of liberty without due process of law. A government with
the power to spirit people away and declare that's the end of the matter is
exactly the kind of government the United States has always claimed to
oppose, and has sometimes fought. For the United States itself to become
that kind of government is spectacularly scary.

In seeking the stay of Judge Green's ruling, the administration showed
yesterday that it is committed to being that kind of government.

Barbara Olshansky, a lawyer with the Center for Constitutional Rights, which
has filed legal challenges on behalf of many detainees, said the
administration believes it has "carte blanche" when it comes to fighting
terror: "It's pretty alarming."

In one hearing that led up to Monday's decision, Judge Green attempted to
see how broadly the government viewed its power to hold detainees.
Administration lawyers told her, in response to a hypothetical question,
that they believed the president would even have the right to lock up "a
little old lady from Switzerland" for the duration of the war on terror if
she had written checks to a charity that she believed helped orphans, but
that actually was a front for Al Qaeda.

E-mail: bobherb at nytimes.com

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