News - A supreme opportunity

High court’s new term to settle major war on terror’ issues

This Supreme Court is the longest-serving since the 1820s. It’s also one of the oldest. The average age of its nine members exceeds 70 years. You’ve got to wonder if the justices aren’t getting annoyed at having to see the same faces, in the same robes, over and over and over.

In the term that convened last week, however, they’ll have plenty of cases to keep things interesting.

One of those is Doe vs. Tenet. Yep, that’s George former CIA chief Tenet. The case involves a husband and wife team of spies who came in from the Soviet cold a while ago, hoping to make good on a CIA promise to finance their golden years here in the United States. According to their claim, the CIA helped establish them in the U.S. Everything proceeded swimmingly for John and Jane Doe, until the Seattle bank that employed Mr. Doe merged with another bank, leaving him unemployed. The Does allege the CIA then left them high and dry, breaking an earlier promise to provide for them financially if Mr. Doe lost his job.

Despite the case’s movie-script drama, the question posed by Doe vs. Tenet holds far-reaching legal ramifications. To answer the threshold question of whether former spies are even entitled to their day in federal court, the justices must turn all the way back to the Civil War era. An agent recruited by President Lincoln to spy on the Confederacy died after the war but didn’t leave a will. The fellow handling his affairs sued the government for what amounted to back pay. But the high court held that an alleged breach of contract between the government and a spy can never be challenged, because the interests of national security outweigh all others.

If the Supreme Court wishes to make as few waves as possible — generally its preferred course — it simply will rely on the old case, summarily dispense with the Does’ claim and avoid discussion of the underlying issues. But the justices could strike out on a bolder path; they might take the case as an opportunity to set new limits on executive branch power.

Doe vs. Tenet is one of several cases in which the court is being asked to identify constitutional boundaries that could help shape the so-called “war on terror.” The issues at stake include the limits within which an administration may prosecute an undeclared war and to what extent the president and the attorney general must heed the Bill of Rights.

While the Bush administration continues to assert near absolute power to wage its efforts largely unfettered by the Bill of Rights, there are signs that federal courts, including the Supremes, are breaking precedents and finding at least some limits on the government’s power to restrict civil liberties.

Last term, for example, in a significant rebuke of the administration’s efforts to ignore even rudimentary due process, the court found that terror suspects detained at Guantanamo Bay couldn’t indefinitely be denied access to the courts to determine if they were being held unlawfully.

Then, just last month — despite Vice President Cheney’s recent claim that criticism of the USA PATRIOT Act is purely politically motivated — a District Court in New York declared unconstitutional a statute expanded by the PATRIOT Act that permitted the government to seize, without a court’s assent, records held by any organization that provides Internet access.

The Doe case presents the court with yet another opportunity to define the war on terror’s limits. If the court takes on the former spy benefits case, even if merely to allow a lower federal court to hear the case, a significant precedent will have been established to open the door for aggrieved individuals to question executive branch actions that were previously classified under the broad rubric of “national security.”

For the intelligence community, the case represents a possible setback in its efforts to recruit foreign spies: How can we maintain an intelligence infrastructure if we’re stiffing our assets on the back end? Won’t future spies look at this case and conclude our government can’t be trusted?

For those of us in America concerned about the loss of civil liberties already suffered in the “war on terror,” the questions are both timely and critically important. If the court fully reaffirms executive immunity from sunlight, what does that suggest for the future — especially given the likelihood that Congress soon will create an all-powerful “intelligence czar.” The prospects are truly frightening.

As the dissent to the Circuit Court’s decision to hear the case cogently argues, “Joshua needed spies, Lincoln needed spies, we needed spies to deal with the Soviet empire, and spies will be needed as long as there are men on earth.” And, for America to have spies, they need, by definition, to be kept in the shadows of secrecy.

These are hard questions, obscured partly by the quirky facts of the Doe-Tenet case. Whatever the court decides, I hope it takes the opportunity to flesh out in more detail how we should go about checking and balancing the powers of government in an age of terrorism. At the very least, the high court shouldn’t backslide into the government’s oft-stated view that it should be entitled to absolute deference in all matters of national security.

bob.barr@creativeloafing.com


Bob Barr was U.S. attorney for the district including Atlanta before serving in Congress, 1995-2003.






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