ORLANDO, Fla. – (KRT) – The Supreme Court begins a historic review of presidential power in the age of terror this week when it considers the rights of foreigners now detained by the United States at Guantanamo Bay.
Taking on for the first time President Bush’s efforts to fight terrorism, the justices will hear arguments Tuesday on whether hundreds of men held for more than two years without criminal charge or prisoner-of-war status at the U.S. Navy base in Cuba may challenge their detentions in an American court.
This week, the high court will consider the cases of two U.S. citizens – a suspected Taliban foot soldier, and the alleged “dirty-bomb” suspect – now being held without charge.
At stake are the extraordinary powers the Bush administration has assumed to combat terrorism in the aftermath of the attacks of Sept. 11, 2001.
Rulings expected later this year could restrain or endorse the administration’s prosecution of what officials have characterized as an open-ended war on terror.
“This is a defining moment,” said constitutional-law scholar Michael A. Mello, a professor at Vermont Law School. “We are living in a fundamental moment in constitutional jurisprudence in this country.
“It’s going to be interesting to see whether there’s unanimity on the court in support of the proposition that this really is a war, for purposes of defining presidential war powers with respect to civil liberties.”
Up first is the detention-and-interrogation operation at Guantanamo Bay, where the military is holding about 600 terror suspects or alleged supporters without contact with lawyers or access to courts. Critics say this leaves them in a legal limbo.
“The United States has created a prison on Guantanamo Bay that operates entirely outside the law,” wrote attorneys at the Center for Constitutional Rights in New York who are representing two Australian and two British detainees. Their case has been joined with that of 12 Kuwaitis.
The government has argued – and lower courts have agreed – that enemy combatants captured on foreign territory and held outside the United States lie beyond the reach of the federal courts.
Solicitor General Theodore Olson, whose wife died on board the airliner that slammed into the Pentagon in the Sept. 11 attacks, told the court that the Guantanamo detentions serve “vital objectives of preventing combatants from continuing to aid our enemies and gathering intelligence to further the overall war effort.”
Lawyers for the detainees had raised broad civil-liberties objections to their indefinite detention and treatment, but the justices have limited their review to the question of whether they may challenge their detentions in the federal court system.
On April 28, the court will hear the cases of Jose Padilla, accused of plotting to detonate a radiological “dirty bomb” in the United States, and Yaser Esam Hamdi, a suspected Taliban foot soldier captured on the battlefield in Afghanistan.
Both U.S. citizens, they are being held without charge in a Navy brig in South Carolina.
Susan Herman, general counsel for the American Civil Liberties Union, called the court’s decision to hear the cases “an important first step.”
“Especially in recent years, the Supreme Court has very jealously guarded the prerogative of judicial review, and they’ve been very disinclined to defer either to the president or the Congress in deciding what rights people are going to have,” she said.
“At the same time, we now have an administration, a president, who is very disinclined to have the courts review what decisions his administration is making.
“That really is the showdown right now, is who’s going to be making the decisions about whether the detainees can claim any legal rights at all.”
Mello said it is impossible to predict how the court would rule.
“The court’s decision to grant review has been cheered by civil-liberties folks, but I think way prematurely,” he said. “These cases are simply too big for the court, and too important for the court, to stay on the sidelines.”
The decision to intervene while hostilities continue is unusual.
“It is rare for the court to be involved in the midst of a war, even a conventional war,” said Douglas W. Kmiec, a former constitutional legal counsel to Presidents Reagan and George H.W. Bush. “The difficulty that the court confronts is compounded when the legal issues involve a war that we’ve never confronted before.”
He said recent escalation of violence in Iraq would add to that challenge.
“A decision that is going to in any way fetter the military and its accomplishment of its objectives today is a much harder decision to render than six months ago,” he said.
Mello called the discussion “genuinely uncharted territory.”
“The temporary nature of the wartime power of the president to limit civil liberties is based in part on the temporary nature of the event,” he said. “I’m not sure that this war will ever end.”