The Balance of Justice Amid a War

By David Ignatius

The Washington Post

Friday, July 2, 2004; Page A15

The world had some powerful reminders this week of what the phrase "rule of law" really means. Judicial actions in the United States, Israel and Iraq should reassure those who feared that the anything-goes logic of the war against terrorism was devouring civil liberties.

America's commitment to the rule of law was reaffirmed eloquently by the Supreme Court on Monday in two decisions limiting the Bush administration's powers in holding "enemy combatants." As Justice Sandra Day O'Connor bluntly wrote for the court: "[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

The first case involved an American named Yaser Esam Hamdi. Born in Louisiana in 1980 and raised in Saudi Arabia, he was captured during the war in Afghanistan by members of the Northern Alliance and turned over to U.S. troops there. After interrogating Hamdi, the U.S. military concluded he was an "enemy combatant" who had supported the Taliban. He was held without charges at Guantanamo Bay, Cuba, and then, when officials realized he was a U.S. citizen, sent to a naval brig in Norfolk.

Hamdi's father petitioned a federal court for the most basic of American civil liberties -- a citizen's right to know what he's accused of, and to receive a fair trial, before the government puts him in jail. The court embraced that basic right to due process and rejected the administration's claim that its warmaking powers override constitutional liberties. "An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker," O'Connor wrote.

The court's ruling in the Hamdi case helped restore the balance that the United States lost after the destabilizing shock of Sept. 11, 2001. Reacting to that horrific event, the Bush administration, with the support of many angry and frightened Americans, embraced the logic of total war. O'Connor's opinion firmly reasserted the primacy of law: "It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

In a second opinion, the court held that foreign nationals being held at Guantanamo Bay also have legal rights. Justice John Paul Stevens put the matter plainly in describing the plight of these petitioners: "They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing." The Guantanamo prisoners, like American citizens, can challenge their detention, the court held.

The rule of law prevails even amid Israel's bloody war against suicide bombers. That was the thrust of a ruling Wednesday by Israel's Supreme Court rejecting an anything-goes approach to combating terrorism. A three-judge panel held that by separating thousands of Palestinian farmers from their lands in some places, the security fence being constructed by the government of Prime Minister Ariel Sharon "injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law." Cutting off the Palestinian farmers from their land would be "a veritable chokehold, which will severely stifle daily life," the court said.

Last year I visited Palestinian farmers who were separated from their vineyards by Israeli security barriers. They were from the town of Halhul, which residents say has never sent a suicide bomber into Israel. The Israeli Supreme Court sent these Palestinians a message this week that there are universal legal standards that transcend even this most bitter conflict.

The final assertion of the primacy of law was the appearance in an Iraqi court yesterday by former leader Saddam Hussein to face charges for crimes against his country and humanity. The importance was not the fact of the trial -- many countries, after all, hold show trials to denounce former rulers -- but in the announcement that Hussein and his associates will be able to choose their own legal counsel and won't be forced to testify against themselves. That trial should teach Iraqis, and the world, something about what the rule of law means.

The world went wobbly after Sept. 11. Even in the shadow of the Statue of Liberty, leaders asserted that traditional civil rights were too cumbersome for a nation at war. Thanks to wise judges, the United States and the world may finally be returning to solid ground.

davidignatius@washpost.com