Miami Herald
October 27, 2003
Antiterrorism Campaign Facing Series Of Challenges
In considering legal challenges to the U.S. war on terrorism, the Supreme Court may tackle issues surrounding detainees at Guantánamo Bay.
By Gina Holland, Associated Press
WASHINGTON - The Supreme Court has stayed out of judging the Bush administration's terrorism-fighting strategy, but that soon could change.
Lower courts have kept busy with challenges to the imprisonment of ''enemy combatants'' in the United States, government spying, secrecy about immigrants arrested after the Sept. 11 attacks and the detention of terrorism suspects in Cuba.
Several justices have said they expect eventually to take cases related to the fight against terrorism.
''It's going to get harder and harder, I think, for the Supreme Court to stay out of these,'' American Civil Liberties Union legal director Steven Shapiro said.
The justices' next chance comes early in November when the court is expected to announce whether it will review cases involving the detention of foreigners at Guantánamo Bay, Cuba.
About 660 men from some 40 countries, mostly said to be al Qaeda and Taliban foot soldiers, have been held for as long as two years without access to lawyers.
Dozens of heavy-hitters -- former ambassadors and judges, retired military officers, ex-prisoners of war, human rights groups, foreign leaders -- want the court to hear appeals filed on the prisoners' behalf.
Three terrorism-related appeals were rejected by justices last spring without explanation, but the cases were not as sweeping as those now at or near the high court's doorstep.
The court is warned in filings that America's international reputation is at stake, as well as the safety of U.S. soldiers who might find themselves detained by another country.
The court has selected most of the cases it will hear this term but could add at least one terrorism appeal to its docket.
When the Supreme Court does agree to hear a terror case, it walks into a murky area of court oversight of executive branch decision-making.
The Bush administration has successfully maintained in most lower courts that judges lack the power to second-guess the government's wartime decisions.
Even more difficult, the court would be forced to revisit precedent set in a series of World War II-era cases that gave the executive branch broad power to do what it wants in such a crisis. For example, a 1944 ruling upheld holding 100,000 Japanese Americans in camps during World War II.
The administration's Supreme Court lawyer, Theodore Olson, told justices in a filing that the Guantánamo appeal ``challenges the president's military detentions while American soldiers and their allies are still engaged in armed conflict overseas against an unprincipled, unconventional and savage foe.''
The detainees have been classified enemy combatants and are being interrogated for information about terrorism. Critics argue that without court oversight, they could be held forever.
''The war on terror may go on for decades, and we will not know, at the time, when it is finally over. This war will not end with a surrender ceremony,'' Chicago lawyer James Schroeder wrote in a filing on behalf of three retired military leaders. They are two former Navy judge advocates general -- Rear Adms. Donald Guter and John Hutson -- and Marine Brig. Gen. David Brahms, who was a legal advisor on prisoner-of-war matters.
Most Supreme Court watchers say the question is when, not if, the court will step in.
Scott Silliman, director of Duke University's Center on Law, Ethics and National Security, predicts the court will bypass the Guantánamo appeals, viewing them as more political than legal.
But he said justices may be inclined to consider an after-the-fact challenge to a military trial of an enemy combatant, which so far has not happened, or review the government's treatment of José Padilla, a former Chicago gang member accused of plotting to detonate a radioactive bomb.
Among the cases that have not reached the court yet are those attacking the USA Patriot Act.
The law gives the government wide-ranging search and seizure powers, allowing the FBI to secretly obtain records from organizations including libraries.
October 27, 2003
Antiterrorism Campaign Facing Series Of Challenges
In considering legal challenges to the U.S. war on terrorism, the Supreme Court may tackle issues surrounding detainees at Guantánamo Bay.
By Gina Holland, Associated Press
WASHINGTON - The Supreme Court has stayed out of judging the Bush administration's terrorism-fighting strategy, but that soon could change.
Lower courts have kept busy with challenges to the imprisonment of ''enemy combatants'' in the United States, government spying, secrecy about immigrants arrested after the Sept. 11 attacks and the detention of terrorism suspects in Cuba.
Several justices have said they expect eventually to take cases related to the fight against terrorism.
''It's going to get harder and harder, I think, for the Supreme Court to stay out of these,'' American Civil Liberties Union legal director Steven Shapiro said.
The justices' next chance comes early in November when the court is expected to announce whether it will review cases involving the detention of foreigners at Guantánamo Bay, Cuba.
About 660 men from some 40 countries, mostly said to be al Qaeda and Taliban foot soldiers, have been held for as long as two years without access to lawyers.
Dozens of heavy-hitters -- former ambassadors and judges, retired military officers, ex-prisoners of war, human rights groups, foreign leaders -- want the court to hear appeals filed on the prisoners' behalf.
Three terrorism-related appeals were rejected by justices last spring without explanation, but the cases were not as sweeping as those now at or near the high court's doorstep.
The court is warned in filings that America's international reputation is at stake, as well as the safety of U.S. soldiers who might find themselves detained by another country.
The court has selected most of the cases it will hear this term but could add at least one terrorism appeal to its docket.
When the Supreme Court does agree to hear a terror case, it walks into a murky area of court oversight of executive branch decision-making.
The Bush administration has successfully maintained in most lower courts that judges lack the power to second-guess the government's wartime decisions.
Even more difficult, the court would be forced to revisit precedent set in a series of World War II-era cases that gave the executive branch broad power to do what it wants in such a crisis. For example, a 1944 ruling upheld holding 100,000 Japanese Americans in camps during World War II.
The administration's Supreme Court lawyer, Theodore Olson, told justices in a filing that the Guantánamo appeal ``challenges the president's military detentions while American soldiers and their allies are still engaged in armed conflict overseas against an unprincipled, unconventional and savage foe.''
The detainees have been classified enemy combatants and are being interrogated for information about terrorism. Critics argue that without court oversight, they could be held forever.
''The war on terror may go on for decades, and we will not know, at the time, when it is finally over. This war will not end with a surrender ceremony,'' Chicago lawyer James Schroeder wrote in a filing on behalf of three retired military leaders. They are two former Navy judge advocates general -- Rear Adms. Donald Guter and John Hutson -- and Marine Brig. Gen. David Brahms, who was a legal advisor on prisoner-of-war matters.
Most Supreme Court watchers say the question is when, not if, the court will step in.
Scott Silliman, director of Duke University's Center on Law, Ethics and National Security, predicts the court will bypass the Guantánamo appeals, viewing them as more political than legal.
But he said justices may be inclined to consider an after-the-fact challenge to a military trial of an enemy combatant, which so far has not happened, or review the government's treatment of José Padilla, a former Chicago gang member accused of plotting to detonate a radioactive bomb.
Among the cases that have not reached the court yet are those attacking the USA Patriot Act.
The law gives the government wide-ranging search and seizure powers, allowing the FBI to secretly obtain records from organizations including libraries.