The Supreme Court is expected to decide soon whether to enter the post-September 11, 2001 debate over the line between individual liberty and national security. The New York Times says that as early as this week, there may be an indication of whether the court intends to take up any of the terrorism-related cases.
Among the first are appeals from two groups of detainees at the United States naval base at Guantánamo Bay, Cuba. These appeals raise issues common to many of the other cases: the degree of deference owed by judges to the executive branch for actions taken in the name of national security. The federal appeals court in Washington, D.C., ruled in March that the federal courts do not have jurisdiction to consider the legality of an open-ended detention that has lasted more than 18 months without charges and without review by any impartial military or civilian tribunal. Later this year the court will decide whether to hear U.S. citizen Yasser Hamdi’s challenge to his indefinite detention an “enemy combatant.”
The justices also have been asked to hear a Freedom of Information Act case challenging the Bush administration’s refusal to release names and other information about hundreds of people, mostly Muslim immigrants, who were arrested in the weeks after the terrorist attacks. An appeals court has ruled that the information was exempt from disclosure.
The votes of four justices are required for the court to hear a case. The court applies unofficial criteria for selecting about 75 cases to decide each term out of the 8,000 that are filed. These appeals do not meet those criteria. Solicitor General Theodore B. Olson is urging the court not to hear the Guantánamo detainees’ appeals. He says a lower court correctly interpreted a 53-year-old Supreme Court precedent to hold that “aliens detained by the military abroad” have only those rights that are “determined by the executive and the military, and not the courts.”