The Court Joins The Terror Debate

Guard tower at Camp X-Ray, Guantanamo Bay US Naval Base, Cuba, US Navy
Attorney Andrew Cohen analyzes legal issues for CBS News and

By agreeing to hear two important appeals arising out of the government's offshore detention of foreign terror suspects, the Supreme Court has finally decided to wade into the debate over what legal limits, if any, ought to be placed upon the executive branch in its war on terror. It's about time. Nothing less than the post-9/11 balance of power between the judicial and executive branches is at stake in the cases, now consolidated into one, brought on behalf of some of the approximately 600 detainees now being held at Guantanamo Bay, Cuba.

Two things will happen when the case finally is decided, probably just before the end of the court's term next June. Either the justices will cement into place the extraordinary, mind-blowing deference that lower federal judges have so far given to the White House, Justice Department and Department of Defense on a variety of terrorism-law fronts. Or the Supreme Court will place constraints on that deference, emboldening judges across the country to more aggressively question the executive branch when it seeks to impact the rights of individuals in the name of fighting terrorism. Whatever direction the court chooses, the fragile tension between the obligations of the government and the rights of the governed will be affected.

Although it's been clear for a while that the Supreme Court would eventually have to clarify new rules for our new reality after the World Trade Center attack, it's surprising that the justices would have chosen these two cases as their apparent vehicle for doing so. Usually, the court will accept a case on appeal only if it has generated some measure of legal conflict or ambiguity at the lower court level. But that has not happened in this case; indeed, the lower courts have unanimously and strenuously sided with the government and against the detainees.

Nor can anyone really argue that the law in this area isn't all that clear. The Supreme Court itself in 1950 appeared to have ended the debate for all time with a ruling that declared with no small amount of common sense that German war prisoners held in China couldn't seek redress in our federal courts.

So what gives? Did the justices take these cases from all the potential terror-law cases headed their way because they want to overturn the lower courts and, in doing so, stand up for a strong judiciary in the most definitive way possible? Remember, after all, that if a majority on the court firmly agreed with the lower court rulings, all the justices needed to do was refuse to accept the appeal, which would have let those rulings stand as the final word on the matter. Should civil rights advocates take heart from the actions of this conservative court? Are the cases different enough factually from their predecessors to generate a different result? After all, Congress never declared war on Afghanistan (or Britain or Australia or Kuwait, the home countries of the litigating detainees).

Or did the justices accept the two Gitmo detention cases precisely because they appear to represent such an easy victory for the administration? Perhaps the court has concluded that the two cases are the smoothest, least contentious way possible for the justices to order all judges everywhere to give bended-knee deference to the Bush administration virtually every time it does something it says is part of its "war powers"? If the court wanted to curtail governmental power, this theory goes, surely there are many more logical cases it might have chosen to do so. The Zacarias Moussaoui terror witness case and the Jose Padilla and Yaser Hamdi "enemy combatant" cases immediately come to mind, for example.

These are questions that clearly will linger until the justices finally hand down their ruling next spring. For now, it's worth spending a little time on the dispute itself. None of the litigating detainees are American citizens. Some are citizens of the countries the United States is currently fighting in the war on terror; some are citizens of the countries that are helping in her fight. The men, held indefinitely, incommunicado and without charges by the U.S. since the beginning of the war in Afghanistan, claim through concerned family members that they have a right to rely upon the Constitution to challenge the conditions of their confinement, if not the confinement itself. They want the right at least to have a federal court judge somewhere evaluate whether they have a case.

The government says the men are foreign prisoners of war held beyond American borders, and thus beyond the reach of the Constitution's important protections that might allow for such challenges. The Justice Department says that the U.S. military base at Guantanamo Bay is as foreign a place for purposes of the law as was China in 1950. The government also argues that any interference by the courts in a matter like this would impermissibly intrude upon the president's nearly unfettered power to wage war under the Constitution. These detainees are fairly captured war prisoners, not criminals, the administration keeps telling the courts. The message clearly has been from that branch to its sister: "Butt out and don't worry your pretty little heads about it."

But now the nine "pretty little heads" at the Supreme Court are involved in the fight between the branches, a fight that so far has been a rout for the executive branch to the detriment of the judiciary. And so the question of the day is: Will the justices stand up for their colleagues or stand down for their president? You'll know the answer before Independence Day 2004.

By Andrew Cohen