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.
Lawyers challenging the Bush administration's approach to the war on terror argue that all detainees are entitled to some measure of due process. And they say US citizens are entitled to the full protections of the US judicial system regardless of any presidential designation as an enemy combatant.
Government lawyers say that because the Guantánamo prison camp is outside the sovereign control of the United States, US courts lack jurisdiction over any claims by Guantánamo prisoners.
A federal appeals court in Washington agreed with the government's position in a March 2003 ruling. But last month, a federal appeals court in California reached the opposite conclusion. In a 2-to-1 decision, the court ruled that because the US exercises territorial jurisdiction over Guantánamo (if not outright sovereignty), the prisoners have a right to challenge their confinement.
In the Hamdi case, a federal appeals court in Richmond, Va., has upheld the president's power to hold indefinitely US citizens he determines to be enemy combatants. But last month, a federal appeals court in New York ruled 2-to-1 in the Padilla case that the president lacked the authority to order the open-ended detention of American citizens on American soil.
A potential key difference between the Hamdi and Padilla cases is where each man was taken into custody. The appeals court that upheld Hamdi's detention noted that he was captured on a foreign battlefield in possession of an assault rifle, while the appeals court in the Padilla case pointed out that he was arrested at a US airport and "away from a zone of combat."
In the Padilla case, government lawyers dispute that the president is acting without authority - including congressional authorization. They say Congress passed a joint resolution a week after the Sept. 11 attacks authorizing all the actions the president has taken in the war on terror. The resolution directs the president to "use all necessary and appropriate force" against any person he determines is involved in efforts to conduct further acts of terrorism against the US.
Bush administration lawyers say Padilla is just such a person.
The New York appeals court disagreed. It said the congressional action authorized the war in Afghanistan but not the actions taken within the US. "As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," the judges wrote in their Dec. 18 decision. "But presidential authority does not exist in a vacuum."
In effect, the appeals court said the president must rely on his law-enforcement powers rather than his powers as commander in chief to wage the war on terror whenever it implicates a US citizen within the States.
Solicitor General Olson says the Padilla case involves "issues of extraordinary national significance."
"The court of appeals' conclusion that the president categorically lacks the authority to detain Padilla as an enemy combatant is fundamentally at odds with this court's decisions," Olson says in his brief to the justices. "And it undermines the president's vital authority as commander in chief to protect the United States against additional attacks launched within the nation's borders."
The solicitor general says the president is better able than appeals court judges to decide how best to deal with Padilla. "The president's decision to detain Padilla as an enemy combatant in lieu of detaining him in the criminal justice system reflects a sensitive determination at the core of the president's Article II powers concerning the best interests of the nation in wartime," Olson says. "Judges have little or no background in the delicate business of intelligence gathering."