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Expert: High Court the Arbiter in Terror War

May 24, 2007 By:
Ryan Teitman, JE Feature
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Professor Robert Langran
Torture and warrantless wiretapping have been methods used to fight the war on terror -- and they've also become hot-button political issues in recent months, especially since the power shift in the U.S. Congress following the last election. Still, the likely venue for the final verdict on these methodologies -- and the burgeoning controversies that swirl around them -- will be the U.S. Supreme Court, according to Villanova University Professor Robert Langran.

But to understand how these battles will play out in the highest court in the land, he suggested that it's best to look backward, not forward.

"I don't think you can understand the present court, if you don't know what's happened in the past," said the scholar.

Langran is a professor of political science, and on May 17 at Temple Sholom in Broomall, he delivered a lecture titled "The U.S. Supreme Court in Times of Crisis," to members of the congregation's seniors group, the Hilltoppers' Club. He guided the group through a dense history of crucial cases from the Civil War to the present day, and delved into the high court's shifting relationship with the government's executive branch.

The trend, said Langran, is for the court to demure to the federal government in times of conflict. "In wartime, as you'll see, the court looks the other way -- some of the time."

The professor traced this deferential pattern back to some of President Abraham Lincoln's wartime decisions, which he described as being of "dubious constitutionality." When, for example, the president ordered the blockade of Confederate ports during the Civil War, the Supreme Court, in a 5-4 decision, upheld his actions.

"And that's going to set the tone for a lot of the things that happened since then," stated Langran. Lincoln also suspended habeas corpus -- the right of a prisoner to be brought before a court to determine if he's being lawfully imprisoned -- a right that has come to the forefront in recent cases dealing with prisoners detained by the United States at Guantánamo Bay, Cuba.

"The court isn't too brave in times of crisis," noted the scholar. "Lincoln and the government pretty much did as it pleased."

The laissez-faire trend in government decision-making continued in regard to 20th-century wars. The court remained hands-off in World War I, noted Langran, even as the 1917 Espionage Act and Sedition Act "really stifled free speech in this country."

Then, during World War II, the court actually upheld the internment of Japanese-American citizens by the government.

The court finally reasserted itself when President Harry S. Truman seized control of the steel industry in 1952 to stop a nationwide strike in the midst of the Korean war, explained Langran. The Supreme Court overruled the action -- 6-3 -- he noted, because there were legal avenues in place that the president could have resorted to, such as the Taft-Hartley Act.

Langran likened Truman's situation to President George W. Bush's current legal debate over warrantless wiretapping. He noted that the president can legally obtain wiretaps through the Foreign Intelligence Surveillance Court, which grants nearly all of the requests asked of it. Instead, Bush is bypassing legal channels and pursuing the wiretaps as he sees fit, without authorization.

Major issues still linger that have not yet reached the high court, but will have dramatic ramifications when they do, such as certain troubling interrogation techniques, according to Langran. He added that he is unsure of what the results will be when these cases finally make their way to the court.

Still, he did acknowledge that while some freedoms take a back seat during times of conflict, the law always manages to spring back to its proper place.

 

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