The Bush administration will ask the Supreme Court to put a key terrorism case on a fast track. The plan could enable the justices to decide on most of the major pending civil liberties cases related to the war against al Qaeda and the Taliban by summer, says the Washington Post.
Solicitor General Theodore B. Olson said he would file by Jan. 20 an appeal of a New York federal appeals court’s ruling last month that the government charge or free Jose Padilla, a U.S. citizen linked to al Qaeda who has been held incommunicado as an “enemy combatant” since his arrest in Chicago 19 months ago. Olson will seek agreement with Padilla’s attorneys to argue the case in April so that the court can rule by July.
The Post says the administration may believe that its best hope of winning a series of contested terrorism-related cases is “at a right-of-center Supreme Court, where it is at least likely to win more cases than it will lose.”
Tomorrow, the justices were scheduled to hold their first private conference on whether to hear an appeal similar to Padilla’s by Yaser Esam Hamdi, a U.S. citizen captured by U.S. forces in Afghanistan. Hamdi has been held for more than a year with no access to a lawyer. Last year, the Richmond-based U.S. Court of Appeals for the 4th Circuit upheld the president’s authority to declare Hamdi an enemy combatant, based largely on the fact that, unlike Padilla, he had been detained on a foreign battlefield. The administration has urged the Supreme Court not to accept his appeal.
The Post said Olson’s latest brief “seemed to acknowledge that the price of getting expedited consideration of his Padilla appeal would be some form of joint review of the two cases.”
Critics say that pressure from the courts and the public is forcing the administration into tactical retreats. “They have abandoned, in essence, their opposition to [the court hearing] Hamdi,” said Joseph Onek of the Liberty and Security Initiative of the Constitution Project, a Washington-based nonprofit group that opposes the administration’s legal policies.
Supreme Court rulings on the issues would present the most significant wartime exercise of judicial power vis-à-vis the executive branch since World War II, the Post says.