Detainee cases hit court

Almost 2-1/2 years after the terror attacks of Sept. 11 shook the nation, the US Supreme Court is about to enter the war on terrorism in a big way.

The justices are preparing to take up cases this spring that will test the very foundation of American government - the balance of power between the courts, Congress, and the White House. At issue is whether President Bush is acting within his constitutional authority as commander in chief in ordering the indefinite detention of those he has designated "enemy combatants."

In addition to two cases already accepted, the justices will consider Friday adding yet another megacase to a court docket that already seems destined for American history books.

If the court agrees to take the case of alleged dirty-bomb conspirator Jose Padilla, it would set the stage for the justices to hear as many as three potential landmark national-security cases in its April session, with decisions expected by the end of June.

"These are watershed cases," says Scott Silliman, a law professor and executive director of the Center on Law, Ethics, and National Security at Duke Law School.

"Historically, the court's earlier [national security] precedents have dealt with war in the traditional sense of armed conflict in a declared war [between nations]," Mr. Silliman adds. But those precedents don't speak precisely to a more open-ended, unconventional war against terrorists now being waged by the US government, he says.

Some legal analysts believe the president must treat acts of terrorism as a crime, relying exclusively on civilian courts to detain and punish suspected terrorists. Others say the US is at war and that a battlefield is no place to require Miranda warnings and probable-cause hearings.

"However the Supreme Court decides these cases, it will give us a legal bridge in trying to define the powers and authority of the president in this war on terrorism," Silliman says.

A common thread running through all three cases is a broad assertion of presidential authority by the White House combined with an active effort to sharply limit the role of federal judges in second-guessing administration tactics in the designation and treatment of "enemy combatants."

As if the drama of a constitutional showdown weren't enough, Solicitor General Theodore Olson hasn't been shy about reminding the justices that these cases arise in dangerous times.

"The al Qaeda network remains a serious threat to the national security," Mr. Olson says in his brief urging the high court to take up the Padilla case.

He says the president's actions have been both constitutional and necessary. "The detention of enemy combatants serves the vital wartime objectives of preventing captured combatants from continuing to aid the enemy and of yielding critical intelligence in advancement of the war effort," Olson says.

Two American citizens - Mr. Padilla and Yaser Hamdi - are being held indefinitely as enemy combatants in military brigs in Charleston, S.C., and Norfolk, Va., respectively. In addition, 660 foreign nationals, also designated enemy combatants, are being housed without charge or access to lawyers in a specially built prison camp at the Guantánamo Bay Naval Base in Cuba.

The justices have already agreed to decide whether US courts have jurisdiction to hear legal challenges to the open-ended detentions at the Guantánamo Bay prison camp.

In addition, the justices have accepted a case examining the indefinite, detention incommunicado of Mr. Hamdi, a suspected Taliban supporter captured in Afghanistan. Hamdi is a Saudi citizen, but he was born in the US, which automatically makes him a US citizen as well.

1 | 2

Next