US Court confronts first major test of security vs liberty

WASHINGTON: A few days after the Sept 11 attacks, Supreme Court Justice Antonin Scalia crowded into a chapel in  Rome for a Mass honouring the dead. The next week, Justice Sandra  Day O’Connor wept as she stood at the site of the fallen World  Trade Center towers. The personal consequences of the attacks and their aftermath were swift. But it has taken until now for the justices  to fully reckon with the legal ramifications.

The top court is poised to hear the first major cases to arise from the George W Bush administration’s fight against terrorism. “They become the most important cases because they are the first cases,” said Steven Shapiro, national legal director of the American Civil Liberties Union. “The first cases always go a long  way toward establishing the rules.” On Tuesday, the court hears from lawyers representing some of the more than 600 foreigners held captive and essentially incommunicado at a US military prison camp in Cuba. The justices must decide whether the prisoners may challenge their detention and treatment in US courts.

On April 28, the justices hear two cases testing the president’s power to label American citizens “enemy combatants” and hold them in open-ended military custody, without charges or trial. Rulings in all three cases are expected by June. They will mark the high court’s most significant statements in decades on the balance of security and liberty in wartime. Historians have noted that the courts tend to give the president and other leaders greater leeway in times of war and give greater weight to civil liberties in peacetime. Chief Justice William H Rehnquist, a history buff, has written that “judges, like other citizens, do not wish to hinder  a nation’s ‘war effort’.” What Rehnquist and the court he leads say now will depend in large part on whether a majority of justices equates a war on terrorism with a traditional war that has a clearly defined end.

If so, the court could agree that fighting terrorism requires a reconsideration of government power and of the breadth  of protection offered by the Constitution and the courts. It has been more than a generation since the high court dealt with major wartime cases. The most relevant cases date to World War II, even to the Civil War. “The question is whether they will essentially declare the Constitution silent when it comes to the war against terror,” said University of Pennsylvania constitutional law professor Nathaniel Persily. He predicts the court will chart a middle course — perhaps ruling against the administration in the case of the detainees at Guantanamo Bay, Cuba, but siding with the White House in one or  more of the cases involving US citizens. Many of the Guantanamo captives are suspected Taliban or al-Qaida foot soldiers captured in or near Afghanistan; some may be victims of circumstance. Most have been held for two years or  longer and interrogated frequently. The administration has let some of the captives go and has begun the process of convening military tribunals to try others.

The administration deliberately housed the detainees beyond US shores. The government maintains the men have no right to use American courts. The detentions allow interrogations that can  prevent future attacks and prevent captured enemies from rejoining the fight, the administration’s top Supreme Court  lawyer argued in a court filing. The cases of Yaser Esam Hamdi and Jose Padilla hit closer to home for Americans. Both are US citizens, although Hamdi was raised in Saudi Arabia. Both are in a Navy brig in South Carolina and until recently neither had seen his lawyer nor known that his case was before the Supreme Court. Hamdi was captured overseas. He was at Guantanamo until authorities verified he had been born in Louisiana. Padilla was arrested in Chicago, where he grew up, on suspicion of a plot to detonate a radioactive bomb. The question for the high court is not whether Hamdi and Padilla are guilty, but whether the fight against terrorism  allows the government to declare the pair ineligible for the usual constitutional protections afforded traditional defendants.

Suzanne Mills’ column returns in May.