Supreme Court to hear 3 terror cases

WASHINGTON -- The Supreme Court begins an examination this week of constitutional issues raised in the war on terrorism, taking up three cases that together could clarify the state of civil liberties in a new era.

The terrorism cases -- testing the rights of long-term detainees -- are the first to be heard by the justices from a still-rising tide of lawsuits that flooded the courts after the attacks on Sept. 11, 2001. By stepping in now, the court makes a sharp break with its earlier refusal to hear a variety of other challenges to the government's actions after the attacks.

"This is probably the most significant term of court, for the war on terrorism, that we'll ever witness," suggests Scott Silliman, director of Duke Law School's Center for Law, Ethics, and National Security. "I view it as the court saying, 'We're unwilling to sit on the sidelines any longer.' "

The court will decide whether the laws of war govern the battle against terrorism, and specifically whether a handful of World War II precedents limit the role that courts can play in monitoring the president's management of the campaign against terrorism.

The first case to be heard involves a group of foreign nationals among the nearly 650 captives being detained at the US naval base at Guantanamo Bay, Cuba. The other two cases involve Jose Padilla and Yaser Esam Hamdi, US citizens who are being held indefinitely in a military brig under President Bush's orders naming them "enemy combatants." Padilla, suspected of plotting to detonate a radioactive "dirty bomb," was arrested in Chicago in 2002, while Hamdi was captured in Afghanistan in late 2001.

The Guantanamo detainees' case is to be heard tomorrow, and the enemy combatant cases in back-to-back hearings on April 28 -- the last day of hearings during the court's current term. Because of the high visibility of the cases, the justices will immediately release audiotapes of the three hearings.

The cases are almost certain to be among the last few to be decided before the court recesses for the summer, probably late in June. That timetable means the rulings could impact the presidential election campaign by raising new issues about presidential leadership in the war on terror.

Predictions by court observers of how the cases will come out are tentative.

"This is an entirely different kind of war," says Carl W. Tobias, professor of law at the University of Richmond who has written on terrorism issues. "The court may not break along the usual lines of conservative and liberal." In recent years, Tobias said, the court has shown "a discernible willingness to stand up to the executive branch and to Congress." The question now, he said, is whether it would challenge the president in his role as commander in chief during wartime.

The Bush administration, in its filings in the Supreme Court, does not debate whether the nation actually is at war in a legal sense. But most of the administration's arguments depend upon the court accepting that a state of war does exist. "In our constitutional system, the responsibility for waging war is committed to the political branches," the administration says in its brief in the Hamdi case.

But some groups supporting the administration urge the justices to find that the United States being at war is a constitutional basis for upholding Bush's right to exercise sweeping presidential powers.

Citizens for the Common Defence, a group of lawyers and law professors, says it supports "robust executive branch authority to meet national security threats." The group contends that the court must analyze the issues "under the legal framework applicable to war. . . . The current global war against radical Islamist terrorist networks unquestionably qualifies as an armed conflict and triggers the full range of powers the president is authorized to employ when confronting threats to national survival."

"The legal issues are historic, the legal stakes are extremely high," said the America Civil Liberties Union's legal director, Steven R. Shapiro. "Too often in the past, claims of executive power have been allowed to trump the Constitution. History has judged those decisions harshly."

In those decisions, mainly rulings by the Supreme Court connected to World War II, broadly upheld presidential authority to detain enemy belligerents and limited court review of such wartime acts. Those precedents may be very much in play in the three cases, especially if the court treats the antiterrorism campaign as the legal equivalent of war.

Silliman, the Duke professor, said the court cannot decide the cases "without giving us some clarity as to how the court sees this conflict; there is no way they can skirt that issue in this discussion. If this is a traditional armed conflict, then all the earlier precedents may apply," he said. "If it is something else, the court needs to say what it is, and what tools are available" to the president.

In agreeing to hear the cases, "the court recognizes that it alone should be the one" that decides whether "you can take the cases of 50 years ago and make them equally translatable to the war on terrorism," Silliman said.

The court has technically agreed to review these questions:

Does the president, acting on his own as commander in chief, have the authority to order the capture, here or abroad, of US citizens, to designate them enemy combatants, and to hold them indefinitely without legal rights?

If the president needs congressional approval to take such action, did Congress give it in the post-Sept. 11 resolution supporting a US response to terrorism?

Or is a 1971 law banning detentions of US citizens without explicit congressional approval still binding?

Are US courts barred from hearing challenges by foreign nationals to their detention overseas by the US military if they were captured abroad in a war zone?

Whether the court responds to those issues in broad or narrow terms, its conclusions very likely will begin to answer a core question, as phrased by Silliman: "Should there be a terrorism exception to the Bill of Rights?"