Scope of Executive Power

This is a partial transcript of "Special Report with Brit Hume", Feb. 20, that has been edited for clarity.

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JIM ANGLE, GUEST-HOST: The Supreme Court (search) has stepped into what could be a landmark case over how far the president's powers extend. It has agreed to pass judgment on whether the president can declare someone an enemy combatant and hold them indefinitely without access to attorneys or the courts. There is also another constitutional issue on the horizon, the move for a constitutional amendment against gay marriage.

To talk about these questions, we turn to Paul Rothstein constitutional law professor at Georgetown University Law School.

Paul, thanks for joining us again.


ANGLE: The first thing I mentioned is the case in question is Jose Padilla (search), who is accused of preparing to set off a dirty bomb and is an accused member or associate of al Qaeda.

Now, the administration argued that it could hold him indefinitely without access to lawyers. And I believe, argued that the courts really had no right to review this decision.

ROTHSTEIN: This is the hardest case for the government to defend because he is an American citizen, and he was caught here on American soil, and there's no actual war field, battlefield abroad that he was caught on. It's not...

ANGLE: Unlike the people at Guantanamo Bay?

ROTHSTEIN: That's right. It's not like any of the historical cases where it's been clear. A guy has been carrying a uniform, he has been carrying a gun, there's a declared enemy, a particular country.

ANGLE: He was a German soldier or German saboteur.

ROTHSTEIN: That's right. So this is like an uncharted area. And it's hard because it's an American caught here, not even American citizen caught abroad. So the Supreme Court is going to fill in.

By filling in this area, we will know pretty much the parameters and contours of this government's power to fight this new war on terror. I'm not suggesting, when I say it's a hard case for the government to defend, that they won't be given this power to hold this guy this way. They may well be. But it's like one end of the continuum. It's the most difficult end.

ANGLE: Now, an appeals court said the president overstepped his authority because not only did he claim an enemy combatant, but wouldn't let a court review the matter and would not let his attorneys talk to him.

ROTHSTEIN: Well, what I think is likely -- I'll go out on a limb here, it's not absolutely certain. The courts hate and particularly the Supreme Court, hates to be told you can't even look at something. So I think they will affirm the power of the courts to look at it.

But then when they decide what standard applies to it, what ultimate decision to make, there will be great deference to the executive, to the president, to the military. In other words, it will be just a cursory look-see to make sure some gross error isn't being made here.

ANGLE: Well, in fact, that is the argument. I want to look at a quote here from Attorney General John Ashcroft today, who talked about that very thing. He says, "The president's authority to designate individuals as enemy combatants is a vital part of the war on terrorism. The Court's action today provides an opportunity to reaffirm this critical authority."

So your sense is that this case, however it turns out, will essentially define the rules of the game as far as the war on terror is concern and the president's powers?

ROTHSTEIN: That's right. In this new kind of war, yes, it will do that. Now, it may be the attorney general is just putting a good face on it, saying I'm glad they took it.

And he is right; it will be good to get some clarity. But I think they would much have preferred that the court say we're staying out of it altogether. It's all up to the president and the military what they want to do.

ANGLE: Right.

ROTHSTEIN: That would have been better for them.

ANGLE: Let's move on to the other issue. Obviously gay marriage has become quite an issue in this country after a court decision in Massachusetts, now in California. We've had several days of gays lining up to get married, and now a conflict between the city of San Francisco and the state. I mean a lot of legal wrangling over this.

And the president and others say if necessary, they would support a constitutional amendment. In fact, there's legislation on the Hill to that affect.

This would -- why is it necessary to consider a constitutional amendment before this issue has worked its way up through the courts?

ROTHSTEIN: Well, that's one view to let it work its way up threw the courts, let all the states decide what they want to do. And then see how it ultimately works out. But if you really want to stop the idea of gay marriage and make that uniform around the country, so that there's not some states that have certain marriages valid, and then when they move to another state they find out they don't have a valid marriage. If you want that uniformity and you don't want gay marriage, you would have to have a constitutional amendment to unify it.

Legislation won't do that 100 percent because it is possible that the Supreme Court might say the Constitution, which is superior to legislation from Congress, that the Constitution regards it as a discrimination to prevent gay marriage to allow opposite sex marriage but not gay marriage. I don't think that's likely, but that's a possibility.

ANGLE: Now, if we proceed -- we have got a little less than a minute left. If we proceed down the avenue toward a constitutional amendment, this can be a lengthy process? It can take up to seven years.

ROTHSTEIN: That's right. It requires three-quarters of each house of Congress, and then -- I'm sorry, two-thirds of each House of Congress and then three-fourths of the states to approve it. That could take years.

ANGLE: What happens in the meantime? People -- gays can continue to get married, or not?

ROTHSTEIN: Well, in those states where they permit it or those renegade cities that are allowed by their states to do it, there will be gay marriage. In many other states that prohibit it, there will not be. And then there will be the question of what happens if a couple married in one state moves to another state, what would be their rights of inheritance and to children and all of that? It would be one complex...

ANGLE: OK. Paul Rothstein, thank you very much.

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