Supreme Court faces decisions on two key terror cases

McClatchy NewspapersSeptember 25, 2009 

WASHINGTON -- Graphic photos of U.S. troops abusing Iraqi prisoners present the Supreme Court with its latest, but not its last, national-security legal dilemma.

On Tuesday, justices will meet privately to consider the incendiary photos, as well as a case involving Chinese Muslim men who've been held without charges at the military detention center at Guantanamo Bay, Cuba. Both legal disputes could become the highest-profile national security conflicts of the Supreme Court term that starts Oct. 5.

These cases, and others like them, also demonstrate how the Obama administration is defending some of the Bush administration's most controversial anti-terrorism policies.

Fundamental questions about liberty, detention and a president's wartime authority have captivated the Supreme Court since the 9-11 terrorist attacks.

"It's a very delicate balance, the system of checks and balances in the U.S. Constitution," said Jon Eisenberg, a lawyer who's challenging the Bush administration's use of warrantless wiretapping. "The terrorist threat continues to this day. If the president has the power to break the law during this time of national security at the expense of civil liberties, it's endless."

The Supreme Court typically hears about 75 cases each term. So far, it's accepted 45 for review.

On Thursday, the Obama administration took steps to blunt a potential Supreme Court review of the Chinese Muslim case.

Solicitor General Elena Kagan disclosed that as many as 12 of the captives, members of China's Uighur ethnic minority, could be transferred to the Pacific island nation of Palau. Another four are already in Bermuda, potentially allowing the court to conclude that there's no longer any pressing Guantanamo Bay controversy to resolve.

The potential release of nearly all the Uighurs from U.S. custody could allow the justices to put off until another day the fundamental dilemma that the Uighurs case poses. That question is whether judges can order a Guantanamo detainee to be released after he's successfully challenged his imprisonment.

Whichever cases come up also will spotlight the court's newest justice, former federal prosecutor and trial Judge Sonia Sotomayor, and underscore how the Obama administration has embraced the Bush administration's aggressive post-9/11 policies, which it justified in what once was called the "war on terrorism."

Obama, for instance, has followed Bush's lead in wanting to keep secret certain photos that show abusive treatment of Iraqi prisoners. The administration argues that the photos should be exempt from the Freedom of Information Act because their release would inflame certain populations and put U.S. troops at risk.

"These are photos that show, I think everyone agrees, profound government misconduct," said Jameel Jaffer, an attorney with the American Civil Liberties Union. "These photos have a kind of power that text doesn't."

For instance, the Justice Department's own brief noted one photo as showing "several soldiers posing near standing detainees who are handcuffed to bars with sandbags covering their heads while a soldier holds a broom as if sticking (its) end ... into the rectum of a restrained detainee." Another shows a soldier who appears to be striking an Iraqi detainee with the butt of a rifle.

"Disclosure of those photographs would pose a clear and grave risk of inciting violence and riots against American troops and coalition forces,'" Kagan warned, citing an Army general's testimony.

An appeals court rejected the argument, but legal experts on both sides of the issue expect the Supreme Court to be much more sympathetic. The court is scheduled to consider the prisoner-photo case on Oct. 9.

The case, known as Department of Defense v. American Civil Liberties Union, is akin to other national-security cases, in part because justices must figure out how much deference they owe the president and his military advisers.

In a 2004 case commonly known as Rasul, for instance, the court rejected Bush's claims and ruled that U.S. constitutional protections cover Guantanamo prisoners. In a 2006 case known as Hamdan, the court struck down Guantanamo military commissions that the Bush administration had set up. In a ruling last year known as Boumediene, the court said that the prisoners could challenge their captivity through habeas corpus petitions.

So far, the Chinese Muslim case is the only Guantanamo-related dispute that the high court may consider for the 2009-10 term.

In the case called Kiyemba v. Obama, 17 Uighurs captured in Pakistan or Afghanistan were held at Guantanamo starting in 2003, even though U.S. officials ultimately determined that they weren't a threat. Officials said, however, that they had no place to release them safely because they might face persecution in China.

A federal judge's order last year that they be released into the United States was overturned.

Jamal Kiyemba's question is essentially whether the habeas petition rights recognized in the Boumediene ruling have any teeth: Can a judge who's hearing habeas petitions order the release of the Guantanamo detainees as if they were conventional prisoners?

Obama, like the Bush administration before him, asserts that judges don't have the jurisdiction to force the executive branch to release foreign nationals into the country.

"If the court takes that case, it becomes huge," said Steven Shapiro of the American Civil Liberties Union.

Just over the horizon, other potential national-security blockbusters could be on the way, if not this year, then possibly next. Some questions raised are fundamental:

_ Do the constitutional protections extended to Guantanamo prisoners extend to those in, say, the U.S.-controlled Bagram air base in Afghanistan?

_ Can high-level administration officials be held accountable for wrongfully jailing terrorism suspects?

_ Can the Obama administration use a claim of "state secrets" to shield details about warrantless eavesdropping or a "rendition" program that shipped suspected terrorists to foreign prisons, where some of them allegedly were tortured?

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