Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, was quoted in the following article in The New York Times Upfront, an educational magazine.
This fall, The Supreme Court will hear cases that could have a major impact on American life. Here’s a look at key constitutional issues they’re likely to consider.
By Adam Liptak in Washington, D.C.
Presidential Power & National Security
Since the nation’s founding, the U.S. has debated how much power a President should have, and how to balance national security with individual liberty, especially in a time of war. But the terrorist attacks on Sept. 11, 2001, transformed that debate as the U.S. found itself at war not with another nation, but with a stateless organization.
In general, the courts have not been eager to second-guess presidential actions taken in the name of protecting the nation. In 1944, for example, in a decision now widely discredited, the Supreme Court upheld President Franklin D. Roosevelt’s executive order during World War II to put 120,000 Japanese-Americans in internment camps.
Today, the big issue is the prison at Guantánamo Bay, Cuba, which President Obama has promised to close by January. Guantánamo holds about 200 men who were captured all over the world, including some of the alleged ringleaders of the 9/11 attacks.
“In inheriting Guantánamo, the administration is inheriting something like the Japanese internment camps,” says Eric M. Freedman, a law professor at Hofstra University.
Last year, the Court said the Guantánamo detainees are entitled to at least some of the constitutional protections generally accorded to the accused. And the Obama administration says that some of them should be released, but the process of closing the prison and deciding where the more dangerous prisoners should go is moving slowly. If no other country will take them, the Court has been asked to decide whether they must be released into the United States.
Legal experts say the Court may look to history in considering how much power President Obama should have in the ongoing fight against terrorism. To do that, the Justices may have to decide whether the terrorist threat will be handled by the criminal courts or the military justice system.
“It is a hybrid warrior we’re fighting in a hybrid war,” says Glenn M. Sulmasy, a national-security law expert at the Coast Guard Academy, “and it doesn’t fit neatly in the criminal justice structure or in the law-of-war structure.”