Court helps America find itself

RALEIGH -- A U.S. Supreme Court ruling Thursday upholding the right of terrorism detainees at Guantanamo Bay to challenge their detention is in the spirit of a long line of court decisions close to the hearts of North Carolinians who revere the rule of law and who believe the Constitution means what it says.

The court ruled 5-4 that even in wartime, our system of checks and balances, including a right to habeas corpus petitions in civilian courts, to provide judicial review of the executive branch, must stay intact.

More than 200 years ago, even before North Carolina had a state Supreme Court, the judiciary here established the principle of judicial review in a case that considered whether a statute was constitutional. Bayard v. Singleton was one of the first judicial opinions in the young nation that upheld the power of judicial review of government actions, including that of legislative bodies.

But questions of judicial review and the rule of law have been particularly difficult during wartime. Not long after Pearl Harbor, when eight Nazi saboteurs rowed ashore on Long Island with orders to commit mayhem, the Roosevelt administration planned to try them fast in secret military tribunals and execute them quickly.

The president appointed Col. Kenneth Royall of Goldsboro, a former president of the N.C. Bar Association and former state senator, to defend the Nazis -- and ordered him to stay away from civilian courts. Royall, who had been an artillery officer in World War I and returned to duty in Washington when World War II broke out, thought the president didn't have the authority to convene a secret tribunal to try and sentence the prisoners to death. He asked FDR to change his mind.

Roosevelt declined, and Royall appealed to a U.S. District Court judge, arguing that secret trials are unconstitutional in America. He lost but took the case all the way to the Supreme Court, which upheld the Roosevelt administration's plans. But in the fundamental act of even considering Royall's arguments, the court extended a measure of judicial review to the administration's actions. "Constitutional safeguards for the protection of all who are charged with offense are not to be disregarded," the court said later.

Six of the Nazis were executed and two were sent to prison. Royall later became secretary of war and secretary of the Army, and his portrait still hangs in the Pentagon. Bucking the president over the issue of civilian review of questions about military prisoners didn't harm his career.

SEVERAL YEARS AGO, FRANKLIN NATIVE AND NAVAL OFFICER LT. CMDR. CHARLES SWIFT brought up related questions, arguing that President Bush overstepped his authority in setting up military tribunals to try Guantanamo Bay detainees. The Supreme Court agreed, ruling 5-3 in June 2006 that the tribunal plan was constitutionally flawed.

Swift believed the rule of law sets us apart from our enemies, even though it means extending rights to a group of adversaries who would not extend those rights to us. As he later told a television interviewer, "It's not whether they deserve it or not. It's how we conduct ourselves. It has to do where if we say that our opponent can cause us not to follow the rules anymore, then we've lost who we are."

Last week's ruling by a split court struck down a limited right of habeas corpus petitions for detainees that Congress had offered as an alternative. While some analysts bemoaned the ruling, I think Justice Anthony Kennedy had it right: "Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint," he wrote.

And he said: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

These are not easy questions. We're in a war against enemies who don't like us or anything about the system we revere, including our personal freedoms and our individual rights. Limiting or denying those rights to enemies in our custody makes us more like them and less like the Americans who hold freedom and individual rights so dear.

This is not about them. This is about us. In the long run, the Constitution is what makes us different.

(Jack Betts is a Raleigh-based associate editor and columnist for The Charlotte Observer.)