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Wednesday, January 21, 2004 - Page updated at 12:00 A.M.

Guest columnist
9-11 is no reason to suspend the Constitution

By Floyd J. McKay
Special to The Times

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The American system of separation of powers and checks and balances gives us unique standing among the world's governments.

No parliamentary system, and certainly no authoritarian system, has the elaborate controls of the Constitution of the United States. Those controls were put there because the Founders feared concentrated power.

Each branch of government plays a role in the checks and balances. Added to the executive, legislative and judicial is the role of a nongovernmental force, the news media. But the news media have only the power to expose, not to correct.

We are about to see, in a series of cases being heard by the Supreme Court, whether the judicial branch will assert its role in checking the extraordinary powers exerted by President Bush in the wake of 9-11.

It's not surprising that news organizations are very much an active part of these cases. All involve unprecedented secrecy.

The Supreme Court has already, by refusing to hear the appeal, given tacit approval to an administration "sweep" of Arabs and Muslims shortly after 9-11. But this is not the most serious event to go before the court.

More serious is the case of an American citizen accused of plotting a "dirty bomb" but held since June 2002 without access to a lawyer or his family. No charges have been filed. A second case involves an American-born man captured in Afghanistan and held without charges or access to a lawyer (his appeal has been handled by an attorney who has never met his client).

Already being held indefinitely are hundreds of men picked up in the sweep of Taliban suspects in Afghanistan. Nearly 600 are sealed up in Guantánamo without any chance to prove their innocence in a court proceeding.

While it is likely that some of these men were Taliban combatants, it is also likely that many were only sympathizers or caught up in the wrong place at the wrong time. Sooner or later, most will be returned to their homes; a civilized nation cannot hold people forever without charge and without rights, even if they are foreigners.

What is frightening about the Guantánamo cases is not just the lack of legal protections — they are, after all, not American citizens — but the attitude of the Justice Department. Solicitor General Theodore Olson, Justice's point man before the court, contends that "The courts have no jurisdiction to evaluate or second-guess the conduct of the president and the military."

That language, even discounting for legal hyperbole, should concern every American who cares about checks and balances.

Essentially, the government is saying in these cases and others that 9-11 suspended the Constitution, and did so for all time, not just the immediate future.

The nub of the Justice argument is that this is wartime, and the president has unusual powers in wartime. Granted, that has always been the case. But even a genuine declared war (the last time Congress declared a war was Dec. 8, 1941) still leaves a role for checks on presidential power.

Bush has used 9-11 to set himself above the law. Unlike World War II or other declared wars, this is a "war" without end. What president is going to declare "Mission Accomplished" on the deck of the USS Lincoln, only to have some loony set off a bomb in the subway? Not likely — we will be fighting a war on terrorism for the rest of our natural lives.

What does this mean for the Constitution, then? Does it mean more secret arrests and detentions, the sealing of court records and closing of trials? If so, we have lost a whole lot more than most people realize. When people can be jailed indefinitely and secretly, whether citizens or aliens, basic human rights are at stake.

Already, the 11th Circuit Court of Appeals, based in Miami, maintains two separate dockets, one public and one secret, to deal not only with terrorist cases but also with narcotics cases. This unprecedented secrecy is being challenged by more than 20 news organizations.

In one of these cases, M.K.B. vs. Warden, attorneys argue that the media should be given standing as actual parties to the lawsuit in order to represent the interests of the public as well as assert a First Amendment right to view public records.

The news media are about more than O.J. and Kobe and Monica; in these cases, they are about protecting Americans' right to know, and reining in an alarming concentration of power.

Floyd J. McKay, a journalism professor at Western Washington University, is a regular contributor to Times editorial pages. E-mail him at floydmckay@yahoo.com

Copyright © 2004 The Seattle Times Company

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