Supreme Court to consider Bush’s anti-terror policies

McClatchy Newspapers

WASHINGTON — Graphic photos of U.S. troops abusing Iraqi prisoners present the Supreme Court with its latest, but not its last, national-security legal dilemma.

On Tuesday, justices will meet privately to consider the incendiary photos, as well as a case involving Chinese Muslim men who have been held without charges at the military detention center at Guantanamo Bay, Cuba. Both legal disputes could become the highest- profile national-security conflicts of the Supreme Court term that starts Oct. 5.

These cases, and others like them, also demonstrate how the Obama administration is defending some of the Bush administration’s most controversial anti- terrorism policies.

Fundamental questions about liberty, detention and a president’s wartime authority have captivated the Supreme Court since the Sept. 11, 2001, terrorist attacks.

“It’s a very delicate balance, the system of checks and balances in the U.S. Constitution,” said Jon Eisenberg, a lawyer who’s challenging the Bush administration’s use of warrantless wiretapping. “The terrorist threat continues to this day. If the president has the power to break the law during this time of national security at the expense of civil liberties, it’s endless.”

The Supreme Court typically hears about 75 cases each term. So far, it’s accepted 45 for review.

On Thursday, the Obama administration took steps to blunt a potential Supreme Court review of the Chinese Muslim case.

Solicitor General Elena Kagan disclosed that as many as 12 of the captives, members of China’s Uighur ethnic minority, could be transferred to the Pacific island nation of Palau. An additional four are already in Bermuda, potentially allowing the court to conclude that there’s no longer any pressing Guantanamo Bay controversy to resolve.

The potential release of nearly all the Uighurs from U.S. custody could allow the justices to put off until another day the fundamental dilemma that the Uighurs case poses. That question is whether judges can order a Guantanamo detainee to be released after he’s successfully challenged his imprisonment.

Whichever cases come up also will spotlight the court’s newest justice, former federal prosecutor and trial Judge Sonia Sotomayor, and underscore how the Obama administration has embraced the Bush administration’s aggressive post-Sept. 11 policies, which it justified in what once was called the “war on terrorism.”

Obama, for instance, has followed Bush’s lead in wanting to keep secret certain photos that show abusive treatment of Iraqi prisoners. The administration argues that the photos should be exempt from the Freedom of Information Act because their release would inflame certain populations and put U.S. troops at risk.

“These are photos that show, I think everyone agrees, profound government misconduct,” said Jameel Jaffer, an attorney with the American Civil Liberties Union.