The Court's Conscience
Friday, October 10, 2003;
Page A26
THE NAME Fred Korematsu first appeared at the U.S. Supreme
Court during one of the darker chapters of its history. Mr.
Korematsu, then a 22-year-old American citizen of Japanese descent,
refused to be interned as part of the World War II detention of
Japanese Americans living on the West Coast. Prosecuted and
convicted, he challenged the internment order, and the high court --
in the now-infamous case that bears Mr. Korematsu's name -- upheld
it, citing the deference courts owe to military authorities in a
time of war. Decades later, Mr. Korematsu's conviction was thrown
out and he was awarded the Presidential Medal of Freedom.
Now, reportedly in frail health, Mr. Korematsu has once
again filed a brief with the Supreme Court -- this time in support
of military detainees being held without charge or access to
counsel. There is no moral equivalency between the steps and
oversteps taken since Sept. 11 and the wholesale detention of people
based on their ethnicity. But Mr. Korematsu's brief is an important
reminder that "we tend too quickly to sacrifice . . . liberties in
the face of overbroad claims of military necessity" and that courts
"have too often deferred to exaggerated claims of military necessity
and failed to insist that measures curtailing constitutional rights
be carefully justified and narrowly tailored."
Mr. Korematsu filed his brief in support of separate
petitions for Supreme Court review in the cases of Yaser Esam Hamdi
-- a likely American citizen captured in Afghanistan and being held
in a military brig in Virginia -- and detainees at the Guantanamo
Bay facility in Cuba. The legal merits of these cases differ. Mr.
Hamdi's case raises the crucial question of whether the president
can designate an American citizen as an "enemy combatant" and
thereby place him beyond the protections of the Bill of Rights. A
federal appeals court approved not merely Mr. Hamdi's detention but
his detention without any access to a lawyer as well. The ruling was
based on the pretext that his capture in a war zone abroad was
"undisputed" -- though, having not heard from him, the courts have
no basis to know what facts he actually contests. Why did the courts
not hear from Mr. Hamdi? Because of precisely the timidity, in the
face of claimed military necessity, of which Mr. Korematsu warns:
Letting Mr. Hamdi talk to a lawyer, the government argues, would
interrupt his isolation and interrogation and thereby threaten the
government's ability to glean intelligence from him. The Supreme
Court ought not let this stand. It is beyond dangerous for the
courts to allow potentially indefinite detentions without even
hearing both sides of the story.
The Guantanamo detainees present a less compelling case for
Supreme Court review; they are beyond the jurisdiction of the
federal courts. But the indefinite detention without accountability
of prisoners in Guantanamo nonetheless is legally and ethically
objectionable. The apparent absence of legal standards -- other than
the government's convenience -- concerning who gets held where,
under what authority and with what access to legal process threatens
the essence of law as a predictable scheme of ordered liberty. Some
alleged al Qaeda operatives and Taliban captives are charged. Some
are not. And for those unlucky enough to be placed in the legal
black hole of detention abroad, there exists no publicly defined
process for handling them. In most wars, foreign combatants can be
held during hostilities and then returned home. But this is not an
ordinary war, with enemy states and the likelihood of a fixed date
when hostilities can be declared over. Somehow, the law needs to
adapt to ensure that people are not being held arbitrarily, that
government's power to deprive people of liberty -- at home and
abroad -- is kept in check. Somehow, as Mr. Korematsu's brief puts
it, this country must "respect the principle that individuals may
not be deprived of their liberty except for appropriate
justifications that are demonstrated in fair hearings."
© 2003 The Washington Post
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