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In late January, the media reported a serious setback for the Bush administration when U.S. District Judge Joyce Hens Green declared that the government was violating both the U.S. Constitution and international law in its military tribunal proceedings at Guantanamo Bay, Cuba. The court ruled that the hearings given accused enemy combatants, held for more than three years in some cases, were woefully lacking in fundamental due process and amounted to little more than kangaroo courts. She also found shocking examples of torture used to extract confessions abroad and hearings in which officers openly laughed at the absurdity of an attempt of a detainee to defend against hidden evidence. This decision followed a recent conflicting ruling by a judge in the very same courthouse that dismissed claims of detainees at Guantanamo Bay. Dueling judges makes for good news copy, but what was entirely missed in the coverage were some shocking admissions made by the government that were buried in the long opinion of Green. Since Sept. 11, 2001, President Bush has asserted that he is a wartime president. Under the Constitution, a president at war is afforded heightened deference and authority by the courts. Thus, Bush has claimed sweeping powers, including the right to unilaterally declare citizens to be enemy combatants and to strip them of their constitutional rights. While some of the most extreme claims were recently rejected by the U.S. Supreme Court, Bush continues to invoke wartime powers in dozens of courts around the country to trump civil liberties objections. Green was faced with such an assertion in her courtroom-a claim that the president in wartime can hold enemy combatants indefinitely and deprive them of any substantive rights in federal courts. Green long served on the ultra-secret Foreign Intelligence Surveillance Court and is widely respected for her national security knowledge. Faced with such sweeping authority, Green asked a simple question: How long do you believe the president will claim the maximum authority of a president at war? Dangerous assertion of power For years, various academics, including myself, have warned that this president’s assertion of wartime power is different and far more dangerous than any in history. Congress never declared war on a particular nation in this “war,” and we are not facing a nation-state with territory to conquer. Instead, the president unilaterally declared war on a category of crime: terrorism. Since terrorism can never be truly defeated (a concession Bush once made himself in an unguarded moment), we will be in a condition of permanent war with a perpetual wartime president. This is something the framers never anticipated in carefully balancing the rights and powers in our government. After years of dodging this question, the government now faced a direct inquiry from a federal judge. Its answer was both frank and frightening: The government “conceded that the war could last several generations.” Thus, the president for generations will remain at maximum authority with (according to the administration) largely unbridled authority to dispense justice to anyone he or she deems to be an enemy combatant. Obviously, if generations of Americans will now be ruled by wartime presidents exercising maximum authority, their rights (and those of foreign nationals) will turn on how “enemy combatant” is defined. Green, however, found that this term appeared to be defined as anything that the president says it is at a given moment. (That would certainly explain why Zacarias Moussaoui, an admitted al-Queda member and foreign national arrested in the United States, is declared to be a criminal defendant and given a federal trial, while Jose Padilla, a suspected al-Queda member and U.S. citizen, is declared to be an enemy combatant and denied a trial-and, until recently, any access to either a lawyer or the courts.) Unwilling simply to accept a wink and a nod, Green decided to give the government hypothetical descriptions of individuals to determine if they would fit the current definition of enemy combatant. Here are three of the individuals that, the administration argued, “the [president] has the authority to detain . . . until the conclusion of the war on terrorism” (and thus conceivably their natural lives): “A little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities.” “A person who teaches English to the son of an al-Qaeda member.” “A journalist who knows the location of Osama bin Laden but refuses to disclose it to protect her source.” Notably missing from these questions was how the administration would define tyranny. Here is a standard dictionary definition: “a government in which a ruler is vested with absolute power.” It is worth noting that a tyranny is defined by the assertion of absolute power and not its motivation. The fact is that all authoritarian regimes claim the best intentions. This is not to say that Bush is a tyrant, but rather that his administration has coveted such absolute power in this and other recent cases. Of course, the Constitution did not vest this president with the power to hold an old lady for her natural life after making a mistake in a charity donation or a journalist protecting a long-recognized privilege. This is a power claimed at a moment of national trauma and is now held by presidential fiat. Buried in this federal case is the very meaning of authoritarianism-a power that is equally arbitrary and absolute. Yet also found in these pages is the very symbol of courage in the form of a single judge, who stands virtually alone in demanding answers from a wartime president. In the twilight of her career, this semi-retired jurist probably has few illusions about re-establishing the rule of law in national security cases. However, she now stands as a shining and solitary example of the principles and promise of our constitutional system. Jonathan Turley is a professor of law at George Washington University Law School.

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