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WASHINGTON — In his prescient 1998 book on civil liberties in wartime, Chief Justice William Rehnquist wrote that when bullets fly, “laws speak with a somewhat different voice.” He could not have known it then, but Rehnquist and his fellow justices soon will be finding their own voices on the balance between national security and individual freedom. The stage is set for landmark rulings on the war on terror by the end of the current term in June, and debate is growing over whether the current court will speak more forcefully — even defiantly — than its deferential wartime predecessors. Sixty years ago, the Supreme Court ratified the wartime exclusion of Japanese-Americans from West Coast military zones. Eighty-five years ago it upheld wartime censorship of dissenters. But this time around, Bush administration critics are boldly predicting that the court will hand the government at least partial defeats. The court on Feb. 20 rounded out a quartet of terror-related cases it will hear in April and decide by the end of the current term. Two cases relate to the indefinite detention of hundreds of non-U.S. citizens at the U.S. naval base at Guantanamo Bay, Cuba. Two more test the power of the president to seize and detain U.S. citizens as enemy combatants. All four will ask the court, in varying degrees, to define the authority of the executive branch in times of war. But they also test the power of the court itself, and other federal courts, to review what the president has done. That aspect of the cases has led some critics of the Bush administration to think the government may have overplayed its hand in telling the courts, by and large, to butt out. “You can trust the Rehnquist court not to be cavalier with national security,” says Walter Dellinger, a partner at O’Melveny & Myers and former acting solicitor general under President Bill Clinton. “But you can’t ask the Rehnquist court to let some other branch of government make all the decisions. I cannot believe this court will give unilateral authority to the executive to make these determinations.” Administration supporters counter that its position is not extreme, especially given the perspective of history. “The Bush administration’s position is far more modest and restrained than the actions of the Lincoln and Roosevelt administrations in response to direct attacks on the United States,” says University of California at Berkeley Boalt Hall School of Law professor John Yoo, formerly deputy assistant attorney general in the Bush Justice Department. “The government is by no means pushing the envelope.” The executive branch may not have become bolder in its wartime assertions, but in the current setting, the bigger question may be how much the court has changed. For the last half-decade Dellinger and others have, with a touch of amazement, described the current court as the least deferential Supreme Court in history. On issues ranging from Miranda warnings to federalism, the court has repeatedly reminded the other branches of government that it, and no one else, is the final arbiter of constitutional rights and statutory meaning. The imponderable in the coming terrorism cases is whether the court can set its assertive self image aside in the name of war and national security. Not likely, say administration critics, especially because the cases relate so closely to the role of the courts — the issue closest to the justices’ hearts. “You have two traditions of the court in conflict,” says New York University School of Law professor Stephen Schulhofer, who wrote a brief against the government. “One is the perception that the court rolls over and gets out of the way in wartime. The other is a tradition of insisting on a judicial role. I feel very confident that in these cases, the court will not decide to stay completely out of the picture.” This conflict arises especially in the Guantanamo cases — Rasul v. Bush, 03-334, and Al Odah v. United States, 03-343. The government asserts that the court has no business even ruling on the legality of detaining aliens captured abroad at the Guantanamo base, which it says is outside U.S. sovereign territory. Solicitor General Theodore Olson’s brief in the combined cases is laced with complaints about “judicial interference with military affairs,” and the “truly dangerous precedent of judicial second-guessing of quintessentially military decisions.” Olson also brushes aside arguments that international accords and treaties — which the court has paid more attention to in recent cases — require that the Guantanamo detainees have access to U.S. courts. “Our Constitution reserves that judgment to the political branches which, unlike the courts, may be held politically accountable for that judgment.” The government’s aggressive stance may be more than the current court can bear, say critics. “It may not be the best strategy to seek too-great limits on the role of the courts,” says Dellinger. “The government is not just asking the court to agree that the detainees have no access to the courts, it is saying the court has no authority to even hear the case,” says David Bradford, partner in the Chicago office of Jenner & Block. The administration, Bradford says, “treats the rule of law and the judicial system as if they are the enemy of good social order” in the Guantanamo cases. Bradford wrote a brief for former federal judges who object to the government’s stance. “This is still a conservative court, but the government’s position is so extreme that it cannot win.” Schulhofer’s brief is filed on behalf of Fred Korematsu, the named party in the 1944 case that upheld the exclusion of Japanese Americans. “Unlike Fred Korematsu, who was at least permitted to challenge in court the constitutionality of his internment, the petitioners have been denied even that fundamental right,” the brief points out. Not everyone faults the government’s strategy before the court. Boalt Hall’s Yoo says, “Its position on Guantanamo and enemy combatants is well grounded on existing precedent on domestic legal responses to direct attacks upon the United States.” Indeed, the government relies heavily on wartime precedents that the current court is unlikely to ignore. The leading case on the Guantanamo detentions is Johnson v. Eisentrager, a 1950 decision in which the justices declined to exert jurisdiction over a habeas corpus petition filed by German nationals seized in China and held in a U.S. military prison in Germany. The court deferred to the authority of the president as commander in chief, stating, “It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.” That argument retains considerable force, the administration and its supporters contend, though critics say it falls flat because Guantanamo is far from the battlefield. And in a war with no clear front lines or ending point, adjudicating detentions can be handled without distracting field commanders. “Judicial review can come into play at many different levels,” says Dellinger. “No one says it has to be an Article III judge holding hearings on the battlefield of Afghanistan.” The court may also be skeptical of the government’s stance that Guantanamo is purely foreign territory, when the lease signed with Cuba specifies that the United States “shall exercise complete jurisdiction and control” over the base. Still, some argue that the government stands a chance of winning the Guantanamo cases. “There is fairly little chance that the court will overrule Eisentrager,” says Georgetown University Law Center professor Viet Dinh, former assistant attorney general in the Office of Legal Policy in the Bush administration. The fact that the court agreed to consider the detainees’ appeal does not mean it will grant them access to U.S. courts, Dinh says. “The court could just be saying, �We will grant review to make it clear that we have the final word in the case.’ “ The government has a more nuanced, but ultimately more problematic, position in the cases of Yaser Esam Hamdi and Jose Padilla, says Dinh. Hamdi and Padilla are both U.S. citizens designated as enemy combatants. Hamdi was captured in Afghanistan, while Padilla was taken into custody in Chicago. In these cases involving U.S. citizens, the government has not insisted that U.S. courts stay out of examining their detention altogether. It acknowledged at one point in the Padilla case that it must offer “some evidence” that supports its claim that Padilla was an enemy combatant. For Hamdi, it conceded that judicial review is proper. But the Bush administration has indicated that this judicial review should be minimal. It also said Padilla and Hamdi had no right to see counsel — though at key points in the litigation in recent weeks, it said both could in fact see their lawyers “as a matter of discretion.” Giving U.S. citizens only this minimal level of review and judicial process may be a lot to ask of this court, Dinh says. “I do think the government makes a very good case that the president has the authority to declare citizens as enemy combatants,” says Dinh. “But the court will probably look very carefully at the procedures. This court is not shy to assert its primacy over judicial process.” Dinh predicts neither side in the enemy combatant cases will win a clean victory. As with the Guantanamo cases, the government’s brief on the enemy combatant issue is rooted in World War II precedent. In Ex parte Quirin, a 1942 case, the high court upheld the seizure and detention on U.S. soil of German saboteurs — one of whom was presumed to be a U.S. citizen. Jenner & Block D.C. partner David DeBruin, one of Padilla’s lawyers before the Supreme Court, says the court will have to confront the question of how much judicial process Padilla and Hamdi deserve. “The question is not so much whether the president can act, but if he can, are we embarking on a new road of seizing citizens and holding them in prison indefinitely? We haven’t done this in 200 years.” Congress has the authority to define “enemy combatant,” and to delineate rules for habeas corpus review, but failed to do so, DeBruin says. Others also fault congressional inaction for the looming confrontation between the president and the judicial branch. At Jenner & Block, Bradford and DeBruin separately became involved in the terror cases as part of the firm’s pro bono program. To supplement their work, the firm established a Web site that offers links to all the briefs filed in the Guantanamo and Padilla cases. The site has been visited more than 2,000 times a week — a sign of the keen interest in the cases. “These questions are what we as lawyers are about — questions of process and procedure,” says DeBruin. The justices, too, are keenly interested in these matters, says DeBruin, “and I think they will consider the issues very carefully and independently.” Rehnquist’s 1998 book, “All the Laws But One,” notes that the court usually defers to the executive branch while a war is on, but resumes its vigilance over civil liberties after the war is over. “There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson or Roosevelt, or that future justices of the Supreme Court will decide questions differently from their predecessors,” Rehnquist wrote. But he also noted that in its most recent wartime rulings, the court has been less tolerant of the “least justified” restrictions of civil liberties. “It is both desirable and likely,” Rehnquist continued, “that more careful attention will be paid by the courts to the basis for the government’s claims of necessity as a basis for curtailing liberty.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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