Three US Supreme Court cases generated by the Bush administration's detention of those it deems "enemy combatants" will be ar-gued over the coming days, framing a debate of historic dimension not only about the rights of citi-zens and noncitizens alike, but also -- or perhaps principally -- about the boundaries of presidential power.
It was long evident that these cases would invite the justices to re-examine the balance between individual liberty and national security, and perhaps to recalibrate that always-delicate balance for the modern age of terrorism. But the full extent to which the arguments hinge on competing visions of presidential authority became clear only after the dozens of briefs filed in the three cases began to arrive at the court after the first of the year.
In each of its three main briefs, the administration's lawyers argue for a muscular view of executive authority that leaves no room for "second-guessing" or "micromanaging" by the federal courts.
In its argument that courts have no jurisdiction to hear challenges to the open-ended detention of hun-dreds of men from Afghanistan and Pakistan at the US naval base at Guantanamo Bay, Cuba, the admin-istration says judicial review "would place the federal courts in the unprecedented position of micromanaging the executive's handling of captured enemy combatants from a distant combat zone" and of "superintending the executive's conduct of an armed conflict." That would "raise grave constitutional concerns" under the separation of powers, the brief says.
The Guantanamo case was scheduled to be argued yesterday. Appeals in two lawsuits filed on behalf of separate groups of detainees, Rasul versus Bush, No. 03-334, and Al Odah versus United States, No. 03-343, were consolidated for a single argument.
No right to lawyers
In its brief appealing a lower court's ruling that President George W. Bush lacked authority to order the military detention of an American citizen, Jose Padilla, the administration argues that the decision to transfer Padilla from the civilian courts to a military prison was made under the president's inherent authority as commander in chief. "The authority of the commander in chief to engage and defeat the enemy encompasses the capture and detention of enemy combatants wherever found, including within the nation's borders," the brief asserts.
Padilla was stopped two years ago at Chicago's international airport on suspicion of participating in a plot by al-Qaida to detonate a radioactive device, but he has never been charged with a crime. This case, Rumsfeld versus Padilla, No. 03-1027, will be argued April 28 along with an appeal by a second citizen detainee, Yaser Esam Hamdi.
Hamdi, born in Louisiana to Saudi parents, was taken into custody more than two years ago in Afghanistan, where government lawyers say he was fighting with the Taliban. He and Padilla are being held in the same navy brig in Charleston, South Carolina. For two years, neither man was permitted to see a lawyer. The government recently permitted them limited access to their lawyers, maintaining that this was a matter of "discre-tion" rather than entitlement.
The federal appeals court in Richmond, Virginia, ruled last year that a nine-paragraph description by a Pentagon official of the circumstances of Hamdi's seizure was sufficient to validate his continued detention. Dismissing Hamdi's petition for a writ of habeas corpus that sought to challenge his classification as an enemy combatant, the appeals court said that once the government explained itself, there was no further role for the federal courts.
In its brief in Hamdi versus Rumsfeld, No. 03-6696, urging the justices to uphold that decision, the Bush administration asserts that the determination of enemy combatant status is a military judgment "representing a core exercise of the commander-in-chief authority" and "entitled to the utmost deference by a court."
These arguments in turn have galvanized a broad swath of the legal community to express alarm about the sweep and implications of the claims of executive author-ity. Liberal and civil rights organizations are not the only groups to have filed briefs on the detainees' behalf. One of the most pointed is from the Cato Institute, a libertarian research organization influential in conservative circles.
The institute's brief in the Hamdi case describes the government's argument that the courts cannot meaningfully review a determination of enemy combatant status as a "shocking assertion" that "strikes at the heart of habeas corpus."
Tracing the habeas corpus procedure to its roots in ancient English law, the brief continues, "The right to habeas corpus is, in essence, a right to judicial protection against lawless incarceration by executive authorities."
Arbitrary hypocrisy
Global Rights, an international human rights legal group, maintains in its brief that "enemy combatant" is an "invented classification" that is not recognized in international law. Its use has the effect of "stripping Mr. Hamdi of any recognized status under international law," the brief says, adding that "the government is engaging in the very practice of arbitrary detention that it has condemned worldwide for decades."
In the Guantanamo case, which has received great attention in Britain because British subjects are among the detainees, 175 members of the British Parliament have filed a brief arguing that "the exercise of executive power without possibility of judicial review jeopardizes the keystone of our existence as nations -- namely, the rule of law."
Like a number of other briefs in all three cases, the Parliament members' brief argues that the administration's actions violate both the binding obligations and the norms of international law. "Indefinite executive detention without judicial review is inimical to the United States' commitment to the rule of law and its international obligations," the brief says.
While the international-law arguments will undoubtedly appeal to some justices, they may well alienate others. In cases on subjects ranging from gay rights to the death penalty to the legal liabilities of multinational businesses, the Supreme Court is engaged in a vigorous debate over the extent to which US courts should take account of foreign legal developments. In some respects, this debate represents the latest front in the legal culture wars that have been raging, sometimes beneath the public radar, since the battle over Robert Bork's nomination to the court in 1987.
Bork and 23 other conservative lawyers and legal scholars, including several recent veterans of the White House counsel's office and the Justice Depart-ment, have filed a brief in the Guantanamo case that is likely to draw more than passing attention within the court.
National interest
Organized as Citizens for the Common Defence, this group, which includes a number of the current justices' former law clerks, focuses sharply on international-law arguments in maintaining that the detainees and their lawyers "rely upon and seek to have this court endorse an essentially political position that is adverse to the interests of this nation as asserted by the executive."
Referring to Article II of the Constitution, which defines the president's office, the brief says that "this case can be viewed as one battle between those who invoke `international norms' and multilateralism to constrain the United States and those who be-lieve that Article II empowers the executive to defend the nation subject only to legal constraints applicable and deemed relevant by US law, in-cluding the Constitution and those international legal obligations that US law incorporates."
In the courtroom itself, the arguments may well proceed as rhetorical duels over the relevance and proper interpretation of formerly obscure Supreme Court precedents, dusted off for the first time since they were issued during or soon after World War II.
In the Guantanamo case, the Bush administration quotes Johnson versus Eisentrager, a 1950 decision rejecting a right of habeas corpus on behalf of 21 German civilians caught spying for Japan in wartime China.
The lesson, the administration says, is that noncitizens held outside the US do not have access to the federal courts.
The Guantanamo detainees' lawyers say the precedent does not apply, either because the Guantanamo Bay naval base is effectively, if not formally, US territory or because the Germans, in contrast to current detainees, had already had lawyers and trials before a military commission and were thus "adjudicated" rather than simply labeled enemy aliens.
One precedent of which the justices need no reminder is Kore-matsu versus United States, the 1944 Supreme Court decision that upheld, to the country's lasting regret and eventual formal apology, the wartime detention of 110,000 Americans of Japanese descent, most of them citizens.
Fred Korematsu, the plaintiff in that case, is now 84. He received the Presidential Medal of Freedom in 1998. His brief on behalf of the Guantanamo detainees is a catalog of government overreactions to foreign and domestic threats, from the Alien and Sedition Acts of 1798 through the McCarthy period of the 1950s.
"Our history merits attention," Korematsu's brief says. "Only by understanding the errors of the past can we do better in the present."
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