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Last week’s decisions by two federal appeals courts rejecting government assertions of expanded wartime powers capped a year in which the federal courts revitalized their roles as both counterbalance to executive power and guardian of the U.S. Constitution. Until this month, the courts showed great deference to the executive branch in terrorism matters. But recent rulings — including the U.S. Supreme Court’s decision to review two terror-related cases — suggest that the judiciary is unwilling to defer completely to the president, even during wartime. In the weeks following the Sept. 11, 2001, attacks, the government pulled out every weapon in its arsenal to fight terrorism. Defendants, their lawyers, and especially civil liberties groups pushed back, claiming the government’s measures were breaching the Constitution. The resulting legal battles landed in courtrooms all over the country. And now, two years later, the federal judiciary has begun to decide what tools the government may use in its anti-terrorism efforts and define how aggressively the government may employ them. The U.S. Court of Appeals for the 2nd Circuit’s opinion in the Jose Padilla case dealt the most crushing blow to the executive branch thus far. A U.S. citizen, Padilla was arrested in Chicago in May 2002 and held as a material witness. In October 2002, President George W. Bush designated Padilla an enemy combatant. Padilla has been held ever since in a military brig without access to a lawyer. In its 2-1 opinion issued Dec. 18, the panel ruled that absent congressional approval, “the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil.” The majority opinion was written by Judge Rosemary Pooler, who was appointed by President Bill Clinton. She was joined by Judge Barrington Parker Jr., who was named to the District Court by Clinton and promoted to the 2nd Circuit by President Bush. The dissenting vote was cast by Judge Richard Wesley, whom Bush appointed to the bench this year. The circuit ordered the trial court to grant Padilla’s habeas petition and directed that Padilla be released from military custody within 30 days. Justice Department lawyers say the 2nd Circuit’s ruling is an anomaly. A panel of the 4th Circuit, in contrast, ruled for the government on a similar issue in the case of Yaser Esam Hamdi. Hamdi is the only other known American enemy combatant. Unlike Padilla, Hamdi was captured on the battlefield in Afghanistan. In deferring to the president’s power to designate enemy combatants, the famously conservative 4th Circuit hewed closely to the specifics of Hamdi’s situation, noting that it is “important to emphasize that we are not placing our imprimatur upon a new day of executive detentions.” The 9th Circuit — frequently assailed as a renegade bench — has also weighed in. Two of the court’s consistently liberal judges penned this month’s terrorism-related opinions. Still, they didn’t make majorities on their own. In the pair of 2-1 rulings, each liberal judge was joined by a colleague in roundly rejecting two of the government’s major anti-terrorism measures. Judge Stephen Reinhardt wrote for the majority on Dec. 18, finding that the more than 600 detainees at the U.S. military base on Guantanamo Bay, Cuba, must have access to lawyers and the U.S. court system. “Even in times of national emergency — indeed, particularly in such times — it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values,” Reinhardt wrote. And on Dec. 3, Judge Harry Pregerson wrote for the panel upholding a trial judge’s opinion that key elements of the ban against providing “material support” to terrorists are unconstitutionally vague. Next month, the same trial judge is slated to hear arguments on the constitutionality of a clause added to the statute by the USA Patriot Act making it a crime to provide “expert advice and assistance” to terrorist organizations. Since the 9/11 attacks, at least 28 people have been charged with violating the material support statute, including New York defense attorney Lynne Stewart. At least eight have been convicted. Prior to this month, the appellate courts tended to agree with the government’s arguments — or at least with the executive branch’s assertion of wartime powers. For example, the 2nd Circuit decided Nov. 7 that the government may hold material witnesses indefinitely and without charges for grand jury investigations. And the D.C. Circuit ruled on June 17 that the Justice Department does not have to release the names of anyone detained in the post-Sept. 11 dragnet because of national security concerns. The 3rd and 6th circuits are split on whether immigration hearings must be open to the public. The Supreme Court has declined to consider the issue. Still pending before the 4th Circuit is the case of Zacarias Moussaoui, the one case that could make or break future prosecutions of alleged terrorists in federal courts. At issue is whether Moussaoui, who faces the death penalty on charges of conspiring in the Sept. 11 attacks, has a right to depose potentially exculpatory witnesses if those witnesses are alien enemy combatants held in U.S. custody overseas. The matter also raises questions about what remedy is appropriate to protect Moussaoui’s right to a fair trial if he does have a right to those depositions, but the government won’t allow access to the witnesses. If the 4th Circuit, and ultimately the Supreme Court, find that Moussaoui’s due process rights mandate his ability to depose such witnesses, other terrorism defendants will demand the same right and bring their cases to a halt, the government has argued. One Justice Department attorney warns that prosecutors will be left only with broad statutes such as the material support prohibition rather than more sharply defined laws that carry the death penalty. Although the Supreme Court declined to review the immigration hearing issue, it has accepted two appeals with far reaching implications for the government’s anti-terrorism efforts. On Nov. 1, the high court agreed to determine whether federal courts may consider challenges to the Guantanamo Bay detentions. The court will also review a 9th Circuit opinion upholding a civil damages award to a Mexican national under the Alien Torts Claim Act. The man had been captured by U.S.-employed bounty hunters in Mexico, brought to the United States, tried in a drug-cartel case, and acquitted. In its brief, the government argued that “transborder arrests” are a necessary part of anti-terrorism efforts and that the 9th Circuit’s reading of the act would expose U.S. officials to suits that would chill law enforcement activities and thus endanger national security. The next anti-terrorism frontier to face judicial scrutiny is likely to be torture. Interrogation has been a crucial component of the government’s efforts. And allegations of coercive interrogation and torture are surfacing. No lawsuits have been filed yet, but three human rights groups have petitioned the Inter-American Commission on Human Rights, citing excessively harsh treatment of prisoners in Guantanamo Bay and Afghanistan. And last week, the Justice Department’s inspector general issued a report finding that as many as 20 guards at the Metropolitan Detention Center in Brooklyn abused immigrants detained in the Sept. 11 investigation. At the heart of all of the terrorism matters facing federal judges is one key question: Do these cases arise in the context of an emergency situation in which the fate of the nation is at risk? How the courts answer this question governs how they respond to current and future challenges to the executive branch’s tactics, says Philip Heymann, a professor at Harvard Law School and former deputy attorney general during the Clinton administration. If the survival of the country is at stake, Heymann asserts, the power of the executive is profound. “There is practically nothing the president can’t do on his own without congressional authority and not subject to judicial review,” he says.

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