The dispute, set for oral argument before the high court Tuesday, isn’t just about whether military detainees held overseas should get a hearing to justify their detention.
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Rather, the case is forcing the justices to confront far more fundamental questions about the powers of the president as commander in chief in wartime, and the authority of the court to act as a check on executive power when presidential action allegedly violates human rights.
The same theme is present in two major cases set for oral argument next week, which involve two US citizens being held in indefinite military detention within the US. The Guantánamo detainees, by contrast, are all foreign nationals being held overseas.
In resolving the Guantánamo dispute, the justices will consider whether federal judges are constitutionally authorized to second-guess the White House, even when the president says his actions are crucial to safeguarding national security.
“There is no real middle ground,” says John Yoo, a constitutional law professor at the University of California at Berkeley School of Law and a scholar at the American Enterprise Institute. He says the choice is stark: “Is there going to be judicial review over this subject, or not.”
If the high court rules there is no judicial review, it would give a green light to an administration that views preemptive military action as a cornerstone of US security. If, on the other hand, the court determines that judicial review extends to foreign nationals detained overseas, it would empower federal judges to police US government operations abroad and would internationalize US constitutional protections. Some judges may defer to executive authority in such situations, but the power of judicial oversight would nonetheless be established.
The case arrives at the court amid the continued confinement of 595 foreign nationals at Guantánamo. Lawyers acting on behalf of 14 of the detainees are challenging the legality of their confinement, arguing that federal law, the US Constitution, and international human rights agreements mandate that there be a lawful process to determine whether the detainees are enemy combatants. No such process has been established, they say, and they are asking the US courts to order the government to create such a process.
“Our basic claim is we want a sorting process,” says Michael Ratner, president of the Center for Constitutional Rights, which is representing some of the detainees.
The Bush administration maintains that American courts have no jurisdiction over detainees at Guantánamo, just as they have no authority over battlefield prisoners taken in Afghanistan or Iraq.