At court: terror-war detentions

Legal challenges to the indefinite detention of Al Qaeda and Taliban suspects at Guantánamo Bay, Cuba, have placed the US Supreme Court at a constitutional crossroads, with potential historic implications for the balance of power in American government.

The dispute, set for oral argument before the high court Tuesday, isn't just about whether military detainees held overseas should get a hearing to justify their detention.

Rather, the case is forcing the justices to confront far more fundamental questions about the powers of the president as commander in chief in wartime, and the authority of the court to act as a check on executive power when presidential action allegedly violates human rights.

The same theme is present in two major cases set for oral argument next week, which involve two US citizens being held in indefinite military detention within the US. The Guantánamo detainees, by contrast, are all foreign nationals being held overseas.

In resolving the Guantánamo dispute, the justices will consider whether federal judges are constitutionally authorized to second-guess the White House, even when the president says his actions are crucial to safeguarding national security.

"There is no real middle ground," says John Yoo, a constitutional law professor at the University of California at Berkeley School of Law and a scholar at the American Enterprise Institute. He says the choice is stark: "Is there going to be judicial review over this subject, or not."

If the high court rules there is no judicial review, it would give a green light to an administration that views preemptive military action as a cornerstone of US security. If, on the other hand, the court determines that judicial review extends to foreign nationals detained overseas, it would empower federal judges to police US government operations abroad and would internationalize US constitutional protections. Some judges may defer to executive authority in such situations, but the power of judicial oversight would nonetheless be established.

The case arrives at the court amid the continued confinement of 595 foreign nationals at Guantánamo. Lawyers acting on behalf of 14 of the detainees are challenging the legality of their confinement, arguing that federal law, the US Constitution, and international human rights agreements mandate that there be a lawful process to determine whether the detainees are enemy combatants. No such process has been established, they say, and they are asking the US courts to order the government to create such a process.

"Our basic claim is we want a sorting process," says Michael Ratner, president of the Center for Constitutional Rights, which is representing some of the detainees.

The Bush administration maintains that American courts have no jurisdiction over detainees at Guantánamo, just as they have no authority over battlefield prisoners taken in Afghanistan or Iraq.

On a broader level, the case points up two perspectives on how best to deal with the threat from Al Qaeda. Some analysts support a law-enforcement approach, with the filing of criminal charges, courtroom trials, and complete judicial oversight. Others say the threat of weapons of mass destruction justifies a more robust approach. The Bush administration says the nation is at war and that the Constitution empowers the president as commander in chief to take all necessary measures to ensure the nation's survival.

"The Constitution commits to the political branches and, in particular, the president, the responsibility for conducting the nation's foreign affairs and military operations," says US Solicitor General Theodore Olson in his brief to the court.

Critics of the administration's stance say it undermines rather than upholds the rule of law. Without judicial oversight, they say, Guantánamo would operate as a rights-free zone in which the administration could do as it pleases with any foreign national labeled a security threat.

"Endorsement of the government's position would create a lawless enclave in which no inquiry can ever be conducted by a court into the most plausible complaints of the most outrageous governmental violations of basic human rights," says lawyer Thomas Wilner, in his brief to the court on behalf of the detainees. In an interview he adds, "Our Founders believed that unchecked power in the executive was the surest road to tyranny."

Solicitor General Olson says in his brief that a recognition of the jurisdictional limits of US courts by the Supreme Court would not mean detainees are without rights. Under the law of war they are afforded certain protections, but it would be up to the president, Congress, and US military authorities - not US courts - to observe and enforce those rights, he says.

To support its position that US courts have no jurisdiction over claims related to the Guantánamo detentions, the Bush administration cites a Supreme Court decision from 1950, which denied convicted German war criminals imprisoned overseas access to US courts. The administration says that since Guantánamo is leased from Cuba, it is outside the sovereign territory of the US, and federal judges have no authority outside the US.

Lawyers for the detainees argue that the US exerts de facto sovereignty over Guantánamo and such nearly complete control triggers the protections of US law.