GUANTANAMO BAY, CUBA Cases of terrorism reach Supreme Court

Lawyers for 16 prisoners at Guantanamo will present arguments Tuesday.
WASHINGTON POST
WASHINGTON -- To fight terrorism, President Bush has made the broadest assertions of wartime executive power since World War II. Beginning this week, some of those claims will face the Supreme Court's scrutiny for the first time since the president began to announce them in the aftermath of the Sept. 11, 2001, attacks.
On Tuesday, the justices will hear appeals by suspected Al-Qaida and Taliban members who are seeking a legal forum in which they can fight their months-long imprisonment at the U.S. naval base in Guantanamo Bay, Cuba. On April 28, lawyers for two U.S. citizen terrorism suspects who have been held and questioned by the military as "enemy combatants" will make a similar plea.
The cases pose a fresh challenge to the war policies of an administration already on the defensive over its handling of Iraq and its pre-Sept. 11 approach to Al-Qaida terrorism.
While the president is urging the Supreme Court to interpret its constitutional role narrowly -- to do nothing more than ratify what it says are exclusive constitutional prerogatives of the commander-in-chief -- advocates for the detainees and their supporters are telling the justices that the court is all that stands between the citizenry and the unchecked power of the executive branch.
One view
"The issue is whether the president will be the sole judge of how the balance will be struck in reconciling the rule of law with the requirements of security," said Michael J. Glennon, who teaches national security law at Tufts University's Fletcher School of Law and Diplomacy. "There is a presumption ... in cases such as this that neither the president nor the Congress will be the sole judge, that the Supreme Court will have the last word. The court will insist on a high [standard] in finding that presumption rebutted."
The cases arrive, in the middle of an election year, before a court that is heir to a long tradition of judicial deference to presidents in wartime -- but whose current members have shown little reluctance to second-guess or undo the actions of the other two branches of government.
And the impact of the court's rulings -- due about the same time the United States is scheduled to hand over power to an Iraqi government -- may extend well beyond U.S. borders, to allied governments and international public opinion, which often look to the United States as a symbol of freedom and the rule of law, but have been critical of Bush's approach so far.
Hearing arguments
On Tuesday, the court will hear arguments by lawyers for 16 prisoners at Guantanamo -- 12 Kuwaitis, two Australians and two British citizens -- who were captured in Afghanistan by U.S. forces or their Afghan allies and classified as members of Al-Qaida or the Taliban.
The Bush administration has taken the position that all 650 current Guantanamo detainees are unlawful enemy combatants and are, therefore, not prisoners of war entitled to the protections of the Geneva conventions, as they would be if they had been fighting for a regular army.
Though the administration has nevertheless pledged to give them humane treatment consistent with the conventions, it says that the detainees are not entitled to a hearing at which they could contest their detention, perhaps by producing evidence that they never actually fought against the United States.
Rather, the administration says, they may be held and interrogated for as long as the executive branch considers it necessary. Two lower federal courts have agreed.
Under World War II-vintage Supreme Court precedent, the administration argues, the detainees may have no access to a civilian court, because they are noncitizen enemies who were captured outside U.S. sovereign territory and are still being held abroad.
Under a century-old lease agreement with Cuba, the United States has "jurisdiction and control" over the Guantanamo base, but Cuba retains "ultimate sovereignty."