Supreme Court bides time in Sept. 11 challenges

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, 2001, attacks, and the detention of terrorism suspects in Cuba.

Several justices have said they eventually expect 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 Guantanamo Bay, Cuba.

About 660 men from some 40 countries, mostly said to be al-Qaida 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 terrorist-related ap-peals 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.

PENDING APPEALS

The Guantanamo cases, which ask if U.S. courts can consider whether the detentions violate international law and are unconstitutional. The U.S. Court of Appeals for the District of Columbia Circuit said the terror suspects held in Cuba have no right to hearings in American courts because they are foreigners being held in a foreign land.

An appeal on behalf of Yaser Esam Hamdi, a 22-year-old U.S.-born man who lived most of his life in Saudi Arabia. He was captured during the fighting in Afghanistan and is now held in America. The 4th U.S. Circuit Court of Appeals said U.S. citizens captured overseas could be treated as enemy combatants, who may be detained without access to courts, lawyers and sometimes even their families.

A challenge to the government's refusal to release names and other details about hundreds of foreigners detained in the months after the Sept. 11, 2001, attacks. The appeals courts in Washington, D.C., said the disclosure could help terrorists.

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 Guantanamo 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 Advocate Generals -- Rear Adms. Donald Guter and John Hutson -- and Marine Brig. Gen. David Brahms, who was a legal adviser 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 Guantanamo 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 Jose 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.

------

On the Net:

Supreme Court: http://www.supremecourtus.gov/