Terror-war involvement defines court's term

In a historic application of judicial power, the US Supreme Court has elbowed its way into the war on terrorism.

It is that assertion of its authority as constitutional enforcer that perhaps best highlights the high court's work in its 2003-04 term, which ended this week with a flurry of important decisions involving terrorism, executive authority, and international law.

To liberals, the court's terror rulings are a shining example of judicial courage to stand firm for the rule of law in the face of presidential overreaching. To conservatives, they mark the clumsy efforts of an imperial judiciary interfering in war powers reserved for the president and Congress in times of national peril.

Regardless of such differing views, there is broad agreement that the high court has asserted its power in a way that will ensure the court's involvement in the war on terror for years to come.

By expanding the protection of US courts to a terror prison camp at Guantánamo Bay, Cuba, and by soundly rejecting a White House assertion of unilateral authority over enemy combatants, the Supreme Court has set the stage for extensive litigation that only the justices themselves will be in a position to resolve. "The court has clearly become a player in the war on terror, and its decisions will have an impact on the prosecution of the war," says Douglas Kmiec, a law professor at Pepperdine University Law School in Malibu, Calif.

In addition to ruling in three terror cases, the justices during their 2003-04 term upheld the McCain-Feingold campaign-finance law, put new teeth into the Sixth Amendment's right of criminal defendants to confront their accusers, and significantly undermined sentencing-guideline plans as violating the right to a jury trial.

The term will also be remembered for several cases in which the court sought to dodge major issues rather than confront them head on. Asked to decide whether the words "under God" in the Pledge of Allegiance amount to an unconstitutional government-endorsed prayer, the high court dismissed the case on a legal technicality, ruling that the California atheist who filed the lawsuit lacked the necessary legal standing. The ruling had the effect of overturning an appeals court decision declaring the Pledge unconstitutional.

But many analysts - including three dissenting members of the court - felt the justices should have addressed the larger issue. "There were a lot of disputes where, if they had come out one way, it would have been momentous, but the court decided them on minimalist grounds," says Vikram Amar, a law professor at Hastings College of Law in San Francisco.

Several scholars note an apparent irony in the high court's recent work. An institution that is supposed to resolve constitutional controversies and end litigation is instead often fostering constitutional confusion and a proliferation of lawsuits.

The court, for example, was unable to answer cleanly in a Pennsylvania case whether political gerrymandering of congressional districts can ever violate the constitutional standard of one person, one vote. And rather than simply declaring whether federal law requires disclosure of internal documents related to Vice President Cheney's energy task force, the justices sent the case back to the lower courts with instructions to be more mindful of separation-of-powers concerns.

"It is a term in which everything the court decided will lead to further litigation," says Erwin Chemerinsky, a law professor at the University of Southern California Law School in Los Angeles.

Another dodge came in what many analysts considered to be the most important of the three terror cases. Rather than address the thorny issue of whether an American citizen seized on US soil could be indefinitely detained, the court dismissed the case on jurisdictional grounds, saying that the lawyer for Jose Padilla filed her lawsuit in the wrong city.

The court's three terrorism cases weren't the only opinions with potential implications for how America fights the terror war. A series of important rulings dealing with domestic law-enforcement tactics are expected to bolster efforts to protect the nation.

The court upheld the use of random highway checkpoints aimed at solving a specific crime, and the court approved suspicionless searches of gas tanks of vehicles entering the US. Both measures could help police search for terror suspects, weapons, or explosives.

The justices also affirmed a Nevada law requiring citizens to identify themselves when requested by police who are investigating a possible crime.

But the centerpiece of the term is the high court's terrorism rulings in the Guantánamo Bay and Yaser Hamdi cases.

In terms of confronting executive power, the high court has had an inconsistent history. When President Truman attempted to take over steel mills during the Korean conflict, the court aggressively asserted its authority and stopped him. But at other times, such as during the World War II internment of Japanese-Americans, the court adopted a more deferential posture until the war ended.

Professor Kmiec says the court's assertion of authority in the terror cases is potentially dangerous. He says judicial second-guessing of military decisions could "make it impossible for the military to conduct the kind of war necessary to defeat an enemy that does not abide by the laws of war."

Others disagree. "We are a nation under a Constitution," says Professor Chemerinsky. "Everything the government does - even waging war - has to be done under the Constitution, and that inevitably means that the judiciary has to be involved in deciding what the Constitution means."

Professor Amar says the court's posture in the terror cases may be more important symbolically. "Years from now we may look back on [the terrorism rulings] with warmness or regret," he says, "but it is an important statement that courts aren't going to just recede into the backdrop."