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Enemies At The Gate

Attorney Andrew Cohen analyzes legal issues for CBS News and

Last week's oral argument before the Supreme Court in the Guantanamo Bay detainee cases was significant because it gave the justices their first public opportunity since Sept. 11, 2001 to resolve a contentious legal issue raised by the war on terrorism. Today's oral argument at the Court over the legal status of "enemy combatants" is significant because it raises monumental questions about the relationship between the government and the governed.

The two combatant cases, heard back-to-back by the justices, will determine whether and to what extent President Bush has the power to identify and designate U.S. citizens as "enemy combatants." In the cases of Yaser Hamdi and Jose Padilla — the otherwise unremarkable men at the center of this storm — that unilateral classification by the White House has meant being held in a military brig, indefinitely, without charges, and so far without any ability to substantively challenge the terms of their confinement.

These cases will determine how much deference the judiciary intends to give to the executive branch in this time of war and terror. They will determine, in effect, how much we must sacrifice individual liberties in the name of collective security; how far the protections of the Bill of Rights will be required to bow to the exigencies of the current crisis. Between this week and last, it's hard to remember a series of cases in which so many rights were at stake for so many based upon the actions of so few.

The White House takes the position that Hamdi and Padilla cannot be treated like ordinary criminals because they are, or they want to be, terrorists. Accordingly, the president has put them into this somewhat nebulous "enemy combatant" category (think "prisoner of war" meets "spy") and then instructed his attorneys to tell the federal courts that the detentions of the men are none of the judiciary's business. The men find themselves, therefore, in a sort of legal limbo. They are not part of the adversary process and, so far anyway, beyond the reach of an independent arbiter who would determine their fate.

In both cases, the executive branch, through the military, has offered a sparse rationale for keeping the two men away from their lawyers, their families, and their constitutional rights. We can't allow these men to see their attorneys because that would preclude us from effectively interrogating them about their purported terror plans. We can't allow these men to have contact with the outside world because they then would pass along messages to their purported terror buddies. We don't feel like trusting you with the true reasons behind this policy. So butt out, judges; don't worry your pretty little heads about it.

Today, the Court will begin to decide whether that attitude and practice is permitted or not. Today, the Court will begin to decide what our system of checks and balances really means; whether the doctrine of separation of powers permits or requires one branch (the judicial) to prevent another branch (the executive) from taking unto itself such extraordinary powers even in a time of war. Today, the justices will begin to give us some sense of whether they are going to stand behind their fellow judges or stand down to the president as part of the war effort.

That's not to say that Hamdi or Padilla are worthy of martyrdom or adulation. They aren't going to be nominated for the Rotary Club anytime soon. Padilla is, at best, a punk and, at worst, a fellow who was in the initial stages of planning a "dirty bomb" radiological attack in America. Hamdi, too, has a fairly shady past. But so far no one has publicly demonstrated that they are members of al Qaeda or otherwise inappropriate candidates for treatment under our regular criminal justice system. And, perhaps most importantly, they are both American citizens, which makes their cases distinctly different from the Supreme Court cases last week involving the foreign detainees held by the U.S. military in Cuba. Moreover, Padilla was apprehended on American soil, which makes his detention even more remarkable.

If the Court permits the president to designate citizens as "enemy combatants" without prior or subsequent justification to the courts then, as a theoretical matter, neither you nor I would be immune from such a designation in the name of fighting terrorism. And since the war on terror could last decades — there's been no Congressional Declaration of War, remember — there appears to be no sunset provision that would ultimately limit this presidential power grab. These cases are not like the others this term. They represent High Noon in the showdown between the branches. And, unlike many other cases that cry out for compromise, only one side is going to prevail.

These sorts of issues have come up before in our history. During the Civil War, for example, President Lincoln suspended the writ of habeas corpus, the legal doctrine that requires the government to turn over detainees to the courts. That dispute generated the famous 1864 Supreme Court case titled "Ex Parte Milligan" which, in turn, spawned the following language from the Court's majority opinion. "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism."

During World War II, the Supreme Court was again faced with a similar case, this time involving German spies captured in America. As detailed in Michael Dobbs' fine new book "Saboteurs, The Nazi Raid on America," the justices refused in Ex Parte Quirin to halt a military tribunal process designed to try the seven men who had come to the United States to sabotage America's war effort. The Court issued its ruling 12 weeks after five of the men had been executed, upholding both President Roosevelt's authority to have tried them the way he did and the prisoner's rights to have that trial reviewed by the civilian courts. This after the lawyer for several of the men had pleaded with the Court to remember that "the Constitution is not made for peace alone, it is made for war as well as peace. It is not merely for fair weather. The real test of its power and authority, and the real test of its strength to protect the minority, arises only when it has to be construed in times of stress."

So the Milligan case often is cited as the paradigm of the Court's protection of individual liberties. And the Quirin case often is cited as the paradigm of the Court's ability and willingness to set aside judicial niceties in the name of national emergencies. In the Hamdi and Padilla cases, the Court will have to decide upon one course or the other. Looking for clues as to which way the justices will go? Good luck. Only Chief Justice William Rehnquist is on the record on this point. According to Dobbs, the Chief Justice, talking about the nature of laws in wartime in 1999, said: "while we would not want to subscribe to the full sweep of the Latin maxim Inter Arma Silent Leges ("in a time of war the laws are silent"), perhaps we can accept the proposition that, though the laws are not silent in wartime, they speak with a muted voice."

By Andrew Cohen