The first cases in the queue on the court’s docket are appeals filed on behalf of two groups of detainees at the United States naval base at Guantánamo Bay, Cuba. These appeals frame an issue that at some level all the cases, despite their considerable differences, have in common: the degree of deference owed by the judicial branch to the executive for actions taken in the name of national security in a crisis.
In these cases, two British citizens, two Australians and 12 Kuwaitis, all seized in Pakistan or Afghanistan during operations led by the United States against the Taliban, are challenging a ruling by the federal appeals court here in March. That court ruled that no federal court has jurisdiction to consider the legality of an open-ended detention that has now lasted more than 18 months without charges and without review by any impartial military or civilian tribunal. A wide array of groups, including former senior military officers, retired American diplomats and prisoners of war from World War II, are urging the justices to hear the appeals, which the administration opposes.
Later this year, probably before its winter recess, the court will decide whether to hear a United States citizen’s challenge to his open-ended detention as an “enemy combatant.” The man, Yasser Esam Hamdi, an American-born Saudi who was apparently captured on the battlefield in Afghanistan, has been held without access to a lawyer in military brigs, first in Virginia and now in South Carolina, since April 2002. The federal appeals court in Richmond, Va., ruled in January that he was not entitled to a lawyer and had no right to challenge the basis for his continued detention.
The justices have also been asked to hear a Freedom of Information Act case challenging the Bush administration’s refusal to release information, including their names, about the hundreds of people, nearly all of them Muslim immigrants, who were arrested in the weeks following the terrorist attacks. Overturning a ruling by a federal district judge, the appeals court here ruled in June that the information, even concerning those found to have no connection to terrorism, was exempt from disclosure.