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The Supreme Court on Nov. 10 took on the first of what could be several constitutional challenges stemming from the war on terrorism, agreeing to decide whether aliens detained at the U.S. naval base at Guantanamo Bay in Cuba can turn to the U.S. courts for habeas corpus review. Two joined cases accepted by the Court, Rasul v. Bush, No. 03-334, and Al Odah v. United States, No. 03-343, will pose a critical test of the Supreme Court’s historic deference to the wishes of the executive branch in times of war. “This is a great first case for the Court to take,” says University of Maryland School of Law professor Michael Greenberger, who is tracking the anti-terrorism cases before the Court. “It is one of the major international law issues that have been raised, and it is a wonderful vehicle for the Court to consider the balance between national security and due process.” The suits were filed on behalf of 12 Kuwaitis, two British citizens, and two Australians captured in Pakistan or Afghanistan in the aftermath of the terrorist attacks on Sept. 11, 2001. They and hundreds of other aliens were taken to Guantanamo, part of the sovereign territory of Cuba leased by the United States for the last 100 years. The Bush administration argues that because of Guantanamo’s status, U.S. courts have no jurisdiction over the aliens. Giving the detainees access to courts would “directly, and perhaps gravely, interfere with the executive’s conduct of the war and divert the attention of the military from ongoing hostilities abroad to courtrooms at home,” states the solicitor general’s brief. Earlier this year, the U.S. Court of Appeals for the D.C. Circuit ruled for the Bush administration, invoking the 1950 precedent of Johnson v. Eisentrager, which involved German prisoners seized by the United States in China and tried in Germany after World War II. The high court ruled then that because the Germans were aliens and were not on U.S. territory, they had no right to seek habeas review in U.S. courts. In the cases now before the courts, lawyers for the aliens assert that Guantanamo is under “de facto control” of the United States and that the aliens being held there have not been charged with any offense or even found to fit any definition of “enemy alien” or “combatant.” The U.S. treatment of the aliens is “radically at odds with any constitutional regime of due process or the rule of law,” wrote Thomas Wilner of the D.C. office of Shearman & Sterling, representing the Kuwaiti nationals in the suit. Other plaintiffs were represented by the New York-based Center for Constitutional Rights and Joseph Margulies of Margulies & Richman of Minneapolis. The case could also be an important test of the Court’s newfound interest in the impact of international laws and court rulings on its own jurisprudence. After years of discouraging litigants from citing foreign precedents, the Court last term invoked several international laws and decisions. Several amicus briefs already before the Supreme Court in the Rasul and Al Odah cases invoke international norms. Others filed on behalf of retired military officers and former diplomats also make a more practical argument against the Bush position: If the United States limits due process for the Guantanamo detainees, current or future enemies of the United States will feel freer to mistreat captive Americans. A group of American former prisoners of war urged the Court to rule against the Bush administration so that the United States can “retain the moral authority to demand fair and humane treatment for future American detainees.” Their brief was written by Thomas Cullen Jr. of the D.C. office of Jones Day. An earlier habeas case brought on behalf of Guantanamo detainees, Coalition of Clergy v. Bush, was denied review by the Court in March. Lower courts had ruled the clergy who filed suit lacked standing. Other cases stemming from the war and anti-terrorism measures are also making their way to the Supreme Court. In Hamdi v. Rumsfeld, No. 03-6696, the Court is asked to decide whether American-born Yaser Esam Hamdi can be treated as an enemy combatant and kept from seeing lawyers and challenging his detention. The similar case of Jose Padilla, a U.S. citizen suspected of ties to al Qaeda and arrested in Chicago, has not yet reached the Supreme Court. A pending Freedom of Information Act case, Center for National Security Studies v. Department of Justice, No. 03-472, asks the Court whether the names of hundreds of people detained after the 9/11 attacks can be withheld. Maryland’s Greenberger says the Court’s reaction to the wartime cases coming before it now could buck the trend established in past wars. “Some of those rulings came in the middle of a fighting war, with all hell breaking loose,” he says. “It’s not that kind of war now. These issues of due process can be settled by the Court without disrupting the war on terrorism.”

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