Three US Supreme Court cases generated by the Bush administration's detention of those it deems "enemy combatants" will be ar-gued over the coming days, framing a debate of historic dimension not only about the rights of citi-zens and noncitizens alike, but also -- or perhaps principally -- about the boundaries of presidential power.
It was long evident that these cases would invite the justices to re-examine the balance between individual liberty and national security, and perhaps to recalibrate that always-delicate balance for the modern age of terrorism. But the full extent to which the arguments hinge on competing visions of presidential authority became clear only after the dozens of briefs filed in the three cases began to arrive at the court after the first of the year.
In each of its three main briefs, the administration's lawyers argue for a muscular view of executive authority that leaves no room for "second-guessing" or "micromanaging" by the federal courts.
In its argument that courts have no jurisdiction to hear challenges to the open-ended detention of hun-dreds of men from Afghanistan and Pakistan at the US naval base at Guantanamo Bay, Cuba, the admin-istration says judicial review "would place the federal courts in the unprecedented position of micromanaging the executive's handling of captured enemy combatants from a distant combat zone" and of "superintending the executive's conduct of an armed conflict." That would "raise grave constitutional concerns" under the separation of powers, the brief says.
The Guantanamo case was scheduled to be argued yesterday. Appeals in two lawsuits filed on behalf of separate groups of detainees, Rasul versus Bush, No. 03-334, and Al Odah versus United States, No. 03-343, were consolidated for a single argument.
No right to lawyers
In its brief appealing a lower court's ruling that President George W. Bush lacked authority to order the military detention of an American citizen, Jose Padilla, the administration argues that the decision to transfer Padilla from the civilian courts to a military prison was made under the president's inherent authority as commander in chief. "The authority of the commander in chief to engage and defeat the enemy encompasses the capture and detention of enemy combatants wherever found, including within the nation's borders," the brief asserts.
Padilla was stopped two years ago at Chicago's international airport on suspicion of participating in a plot by al-Qaida to detonate a radioactive device, but he has never been charged with a crime. This case, Rumsfeld versus Padilla, No. 03-1027, will be argued April 28 along with an appeal by a second citizen detainee, Yaser Esam Hamdi.
Hamdi, born in Louisiana to Saudi parents, was taken into custody more than two years ago in Afghanistan, where government lawyers say he was fighting with the Taliban. He and Padilla are being held in the same navy brig in Charleston, South Carolina. For two years, neither man was permitted to see a lawyer. The government recently permitted them limited access to their lawyers, maintaining that this was a matter of "discre-tion" rather than entitlement.
The federal appeals court in Richmond, Virginia, ruled last year that a nine-paragraph description by a Pentagon official of the circumstances of Hamdi's seizure was sufficient to validate his continued detention. Dismissing Hamdi's petition for a writ of habeas corpus that sought to challenge his classification as an enemy combatant, the appeals court said that once the government explained itself, there was no further role for the federal courts.