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High Court Debate: Terror Powers

For the first time since the Twin Towers fell, the Supreme Court of the United States Tuesday will bore in on a terror-law case of serious consequence. The Justices have been asked whether men captured abroad during the war on terror -- men now being kept and questioned at a military base at Guantanamo Bay in Cuba -- may challenge their detentions using the federal courts of the United States.

Like the vital "enemy combatant" cases the Court will hear next week, the two detainee cases set for oral argument on this third Tuesday in April highlight the growing tensions between liberty and security in our society in this age of terror. They also represent the first opportunity the Justices have taken to give us all a sense of what they think and how they feel about the extraordinary war powers the President has assumed and exercised since September 11, 2001.

As it has in other areas of the global conflict, the executive branch argues in Rasul v. Bush and Odah v. United States that it must have virtually unfettered power to wage war. Government attorneys contend that the military's effort to detain and interrogate the prisoners at Guantanamo Bay will be impermissibly hindered if those prisoners can ask the courts for help. They contend that U.S. courts have no jurisdiction to hear the case of any foreign detainee because the prisoners are not U.S. citizens, they were not captured in America, and are not now being held on U.S. soil.

The detainees, meanwhile, through their attorneys, argue first that they are not "enemies" of the United States (because they are of British and Australian descent) and that, even if they are, they should be able to get into federal court to adjudicate their claims because Guantanamo Bay is within the jurisdiction of those courts. They say they are entitled to some form of due process; some form of opportunity to present their claims of innocence (or at least non-involvement in terror acts) to a neutral arbiter.

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So far, however, those arguments have failed miserably in the lower courts. The first judge that heard the case was so convinced that the petitioners never could succeed that she dismissed the case entirely. And the D.C. Circuit Court of Appeals last year also dismissed the cases with a fairly curt analysis. "If the Constitution does not entitle the detainees to due process, and it does not," the appellate judges wrote, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty."

Regardless of how the oral argument goes today it's a safe bet that the Court will uphold the lower court rulings and dismiss the cases. Over the centuries, the Supreme Court has been very reluctant to limit the President's powers during times of war and there is nothing in these two cases to suggest that precedent won't apply now. If the detainees want help, they are going to have to get it from their own governments. And if they want to be released, it is going to be through political and diplomatic efforts, not legal ones. The Constitution is a deep document but it is not necessarily a broad one; it simply does not and cannot protect the rights of every person who comes into contact with the United States in its multitude of forms.

So the result really isn't in play. What is in doubt is what the Justices will think and say about the claims by the White House and the military that the courts ought to entirely butt out from these sorts of disputes. Will the Court take advantage of the opportunity it gave itself by accepting these cases to stake out a little more turf for itself on behalf of the judicial branch? Will it give the President what he wants in this case but reserve for itself the right to enter and resolve future disputes that will come up as the war on terror rolls on toward infinity?

Still looking for a way to understand what's about to happen and what these two cases mean in the context of the government's response to terrorism? Try this. The executive branch had its say when the President went to war in Afghanistan and Iraq. Congress had its say when it passed the sweeping USA Patriot Act, a hastily-enacted piece of legislation that has dramatically increased the power of law enforcement officials at the expense of individual freedom and privacy. And now, beginning with these two cases and ending with the Padilla and Hamdi cases next week, the judicial branch finally will have its say. The silent branch will be silent no longer.

by Andrew Cohen

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