by Stuart Taylor Jr.
President Bush seems likely to lose the first big war-on-terrorism battle that has come before the Supreme Court. He richly deserves to lose, for he has claimed absolute, unaccountable power to lock up more than 600 foreigners as “enemy combatants” in his prison camp at Guantanamo Bay, potentially forever, with no semblance of a fair hearing for those who claim to be innocent civilians.
I base my prediction—which some would dispute—on the justices’ questions and comments during the April 20 oral argument in the two consolidated Guantanamo cases, Rasul v. Bush and Al Odah v. U.S. In those cases, the families of 16 Kuwaiti, British, and Australian citizens detained at the naval base claim that their relatives are noncombatant civilians seized by mistake.
It also appears quite possible that the Court will rebuff the president’s denial of due process to two U.S. citizens, Jose Padilla and Yaser Esam Hamdi, whom he has also labeled “enemy combatants” and has kept locked up in a South Carolina naval brig for two years without criminal charges. The Court has set the Padilla and Hamdi cases for argument on April 28. It will probably decide all of these cases by late June. Karl Rove might want to do some contingency planning: A succession of Supreme Court spankings for unnecessarily trashing civil liberties would not do his candidate much good.
During the Guantanamo argument, Chief Justice William Rehnquist and Justice Antonin Scalia predictably embraced the administration’s view that no court in the world can inquire into the president’s dubious claim that all of the more than 600 prisoners at Guantanamo, from 40-some countries, are Qaeda or Taliban fighters. But Justice Stephen Breyer seemed to speak for his three liberal colleagues when he asserted, “It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want—whatever they want—without a check.”
Instead, Breyer suggested, courts should open their doors to petitions for habeas corpus on behalf of aliens detained overseas by the U.S., while working out “practical” legal rules to avoid interference with battlefield detentions or other sensitive military operations. (Habeas corpus is the common-law writ that prisoners have been able to use for almost 800 years to challenge the legality of their confinement.) The alternative would be to put Guantanamo, over which the U.S. has exercised complete control under a perpetual lease with Cuba since 1903, completely outside the law.
Bush will lose if the four liberals pick up the vote of either Sandra Day O’Connor or Anthony Kennedy, the two centrist justices. They were harder to read. But O’Connor rejected Solicitor General Theodore Olson’s contention that a 1950 precedent, Johnson v. Eisentrager, bars federal courts from hearing habeas corpus petitions by Guantanamo detainees. (Olson, whose wife, Barbara, died in the 9/11 attacks, has reportedly pushed in internal discussions for the Pentagon to show more respect for due process.) Kennedy, while asking tough questions of both sides, also seemed unpersuaded by Olson.
This is not to suggest that the plaintiffs clearly have the better of the legal arguments. Eisentrager and other precedents offer some support for the administration’s sweeping claims that federal courts have no power to entertain habeas corpus petitions seeking release of aliens detained outside the U.S., and that such prisoners are unprotected by the Fifth Amendment right not to be “deprived of life, liberty, or property, without due process of law.” But O’Connor stressed that Eisentrager, which involved German spies convicted by a military commission and imprisoned by the Allied powers in postwar Germany, could be distinguished from the Guantanamo cases, in which there have been no trials or hearings of any kind.