The Eastern New Mexico News - Serving Clovis, Portales and the Surrounding Communities

U.S. government must have checks and balances


Freedom Newspapers of New Mexico

Liberty includes freedom from arbitrary action by government. That’s why the U.S. Constitution established a judicial branch as a check on the powers of the executive and legislative branches.

For that reason it’s commendable that the U.S. Supreme Court on Monday decided to take up the question of whether those being detained on the U.S. Navy base at Guantanamo Bay, Cuba, can appeal to civilian courts.

“The court said it would resolve only the jurisdictional question of whether the federal courts can hear such a challenge and not, at this stage, whether these detentions are in fact unconstitutional,” reported The New York Times.

“The two appeals the court accepted were filed on behalf of 16 detainees ... all seized in Afghanistan and Pakistan during United States-led operations against the Taliban in late 2001 and early 2002. They have all been held for more than 18 months without formal charges or access to any forum in which they can contest the validity of their detention.”

Solicitor General Theodore Olson argued before the court that only the executive branch has authority over “aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantanamo Bay Naval Base, Cuba.”

But power exercised without checks and balances is arbitrary and open to abuse.

“The entire process is beyond the jurisdiction of the court system,” said Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice. “The purpose of the judiciary is to see if something is legal or illegal. If it’s illegal, the courts can intervene. That’s the principle at stake.”

The Bush administration is citing a 1950 Supreme Court case, Johnson vs. Eisentrager, in which a previous Supreme Court ruled that aliens do not have constitutional rights outside U.S. territory. “We agree with the dissenters on the court (in the 1950 case) that there needs to be a judicial review of the acts of the executive branch,” Lynch said.

If the executive branch can simply do whatever it wants, without judicial review, then at worst it could nab people anywhere — even U.S. citizens, who could be mislabeled as foreigners — and hold them incommunicado indefinitely in foreign territories.

That’s the sort of thing that happens in tyrannies, not free countries.

Even in the midst of the struggle against terrorism, Americans need to make sure their system of government, with its sometimes cumbersome but still essential checks and balances, is not subverted.

As Ben Franklin said, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

The Supreme Court is right to take up this issue. We hope it resolves it in favor of courts overseeing the implementation of laws — in every case.


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