Nation & World
Law In A New Sort Of War
In the post-9/11 world, traditional American notions of both security and freedom have been violently shaken, and what has emerged is part legal confusion, part moral uncertainty. Is the "war on terror" a war like other wars, subject to the same rules? Or is it somehow different? And what about the prisoners in this new sort of war? What sort of rights, if any, should they have?
Over the next two weeks, the U.S. Supreme Court will begin the process of answering those questions, and in doing so will step into a white-hot debate that has raged for two years among the Bush administration, the lawyers for those detained, civil libertarians, and political leaders worldwide. The complexity of the four cases before the court reflects an era in which the government is fighting to balance the legal rights of its citizenry against the security measures needed to protect that citizenry from unprecedented threats. Taken together, the cases could also add up to the most important referendum since World War II on the scope of presidential authority in times of armed conflict--especially if the court decides to make a broad ruling rather than deal with the narrower technical issues each case presents.
At issue: the rights of some 650 alleged Taliban and al Qaeda fighters held incommunicado at the U.S. Navy base at Guantanamo Bay, Cuba, and the rights of two American citizens held in a U.S. Navy brig in South Carolina--all of whom have been detained without access to attorneys for two years. In a series of three oral arguments, the Bush administration will contend that in times of war, the president can unilaterally detain foreign nationals and U.S. citizens whom he designates as "unlawful enemy combatants." The government says the aliens do not have any recourse to U.S. courts to challenge their detentions. It also contends that if U.S. citizens are provided access to civilian counsel, it should be at the military's discretion, and the courts cannot look into the facts underlying these detentions. "The government is defending traditionally accepted powers of the president as commander in chief during times of war," says Bradford Berenson, former associate counsel to President Bush. "If we try to bring in the courts to change that, we'll ultimately destroy our ability to win wars."
Meanwhile, America's allies and enemies are wondering what protections their citizens have against the world's most powerful military. Advocates for the U.S. citizens have similar questions. "You cannot create an island outside the law where people have no rights," says Anthony Romero, executive director of the American Civil Liberties Union. "Granting the government authority to take people off the streets in foreign countries and detaining them without charges is a shortsighted policy, because it puts our own soldiers at risk."
The Guantanamo Bay Cases
When the first handcuffed prisoners from the war in Afghanistan arrived at Guantanamo Bay on military transport planes in January of 2002, Michael Ratner, president of the liberal Center for Constitutional Rights, was ready. He'd waited since Bush issued a military order two months earlier creating military tribunals to try alleged al Qaeda fighters as enemy combatants. "This was so outside what we understood to be legal," says Ratner, "that we decided to file a challenge on behalf of the first person picked to go before the tribunal." That person turned out to be David Hicks, an Australian citizen captured in Afghanistan in December 2001. But for two years, the tribunals and the detainees remained in limbo. Meanwhile Ratner and another attorney, Thomas Wilner, developed two federal court cases--now consolidated--appealing these detentions in concert with the families of two Australians, three Britons, and 12 Kuwaitis. "This is my first time in over 35 years of being a lawyer that I have not been allowed to meet my clients," says Wilner, who is representing the Kuwaitis. "It's extraordinary, really."
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