The cases coming before the court involve two types of captives in the war on terrorism: foreigners who were caught on a battlefield abroad and who have been held for more than two years at the U.S. naval base at Guantanamo Bay in Cuba without being charged; and two U.S. citizens who are being confined indefinitely in a military brig in Charleston, S.C.
The Bush administration has labeled all of them “enemy combatants,” and says the detentions are necessary to stop future terrorist plots.(Related item: Prisoner’s father hopes courts find, fix ‘big mistake’)
The cases test whether the Guantanamo detainees should have access to U.S. courts to challenge their detentions, and whether the president, on his own, can order U.S. citizens locked up without charges and access to a lawyer or a hearing. Together, the cases raise fundamental questions about judges’ ability to check presidential power, and about basic legal protections for captured foreigners and for U.S. citizens accused of betraying this country.
Rulings in the cases could go a long way toward shaping the legal contours for what could be a lengthy war on terrorism. They also will help define the legacy of the court led by conservative Chief Justice William Rehnquist. (Related item: The Supreme Court docket)
The hearings at the court will feature the drama of a Sept. 11 widower, U.S. Solicitor General Theodore Olson, arguing for broad presidential authority to lock up people to protect national security.
Before Olson will be nine justices who shared in the panic that swept Washington on 9/11. Several justices have poignant, personal memories of wartime experiences. All but one — Clarence Thomas, at 55 the youngest justice — came of age during World War II or the Korean War.
An overriding question in the first review of presidential war powers in more than a half-century is how legal precedents from World War II apply to today’s anti-terrorism efforts.
The cases do not involve the controversies over the military tribunals that are being devised to try foreign terrorism suspects, or the 21/2-year-old law known as the USA Patriot Act, which increased federal agencies’ authority to conduct surveillance in this country. But the high court’s rulings later this year could establish some principles about the judiciary’s role and due process of law for future disputes over anti-terrorism initiatives.
In the case involving the Guantanamo Bay detainees who were captured in Afghanistan and elsewhere, a lower federal court ruled that U.S. judges have no jurisdiction to hear the detainees’ complaints that their imprisonment is unconstitutional. That court emphasized that although the base in Cuba has been leased to the U.S. military for more than a century, it is not part of the sovereign United States.
Lower courts have split in the cases involving two U.S. citizens who are being held as “enemy combatants”: Yaser Hamdi, who was captured with Taliban fighters in Afghanistan, and Jose Padilla, who was arrested at O’Hare Airport in Chicago and accused of plotting with al-Qaeda to explode a radioactive “dirty bomb.”
In Hamdi’s case, a federal appeals court said the administration has broad discretion to declare a U.S. citizen an enemy combatant without scrutiny by federal judges. But in Padilla’s case, another court said that the president lacks the power, without an act of Congress, to declare a citizen arrested in the USA an enemy combatant and to deprive him of access to lawyers or a hearing.