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NYT：米最高裁は今週、911関連事件の取り扱いで決定を迫られる。
個人の」権利と国家の安全保障と、どちらを優先するか。山積する訴訟の数々。
http://www.nytimes.com/2003/11/03/national/03SCOT.html?th
November 3, 2003
Justices Face Decision on Accepting 9/11 Cases
By LINDA GREENHOUSE
WASHINGTON, Nov. 2 -- With cases generated by the Bush administration's response to the terrorist attacks of Sept. 11, 2001, now reaching the Supreme Court in substantial numbers, the court faces a basic decision apart from the merits of any individual case: whether to become a player in the debate over where to set the balance between individual liberty and national security.
As early as this week, there may be an indication of whether the court intends to remain on the sidelines, leaving the last word to lower courts that have so far deferred to the White House, or to weigh in with the same assertiveness it has displayed so often in recent years on some of the most bitterly disputed issues in American life.
The first cases in the queue on the court's docket are appeals filed on behalf of two groups of detainees at the United States naval base at Guanta'namo Bay, Cuba. These appeals frame an issue that at some level all the cases, despite their considerable differences, have in common: the degree of deference owed by the judicial branch to the executive for actions taken in the name of national security in a crisis.
In these cases, two British citizens, two Australians and 12 Kuwaitis, all seized in Pakistan or Afghanistan during operations led by the United States against the Taliban, are challenging a ruling by the federal appeals court here in March. That court ruled that no federal court has jurisdiction to consider the legality of an open-ended detention that has now lasted more than 18 months without charges and without review by any impartial military or civilian tribunal. A wide array of groups, including former senior military officers, retired American diplomats and prisoners of war from World War II, are urging the justices to hear the appeals, which the administration opposes.
Later this year, probably before its winter recess, the court will decide whether to hear a United States citizen's challenge to his open-ended detention as an "enemy combatant." The man, Yasser Esam Hamdi, an American-born Saudi who was apparently captured on the battlefield in Afghanistan, has been held without access to a lawyer in military brigs, first in Virginia and now in South Carolina, since April 2002. The federal appeals court in Richmond, Va., ruled in January that he was not entitled to a lawyer and had no right to challenge the basis for his continued detention.
The justices have also been asked to hear a Freedom of Information Act case challenging the Bush administration's refusal to release information, including their names, about the hundreds of people, nearly all of them Muslim immigrants, who were arrested in the weeks following the terrorist attacks. Overturning a ruling by a federal district judge, the appeals court here ruled in June that the information, even concerning those found to have no connection to terrorism, was exempt from disclosure.
Unlike the small category of cases the Supreme Court is jurisdictionally obliged to consider -- the campaign finance case now awaiting decision, which Congress instructed the court to hear, is one example -- these appeals all fall within the completely discretionary part of the court's docket. If the court decides not to hear them, no explanation is likely to be forthcoming, only the word "denied" on the weekly list of orders that dispose of new appeals. The votes of four justices are required for the court to agree to hear a case.
The court applies several unofficial criteria for selecting roughly 75 cases to decide each term out of the 8,000 that are filed. These appeals meet none of those criteria.
The issues raised have not produced conflicting rulings in the lower courts -- the main test the court uses to choose cases worthy of its attention -- and the appeals were not filed by the solicitor general's office, which enjoys a very high success rate in getting its cases accepted, if not always decided favorably.
Indeed, Solicitor General Theodore B. Olson is urging the court not to hear the Guanta'namo detainees' appeals, Rasul v. Bush, No. 03-334, and Al Odah v. United States, No. 03-343. His brief argues that the United States Court of Appeals for the District of Columbia Circuit properly 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," and that these cases consequently do not merit Supreme Court review.
The government's formal responses to the other pending appeals -- Hamdi v. Rumsfeld, No. 03-6696, and Center for National Security Studies v. United States Department of Justice, No. 03-472 -- are due at the court in early December.
The question, then, is whether the justices will nonetheless see these cases as simply important enough to command the Supreme Court's attention despite the absence of the traditional factors that govern discretionary review. The appeal filed by Shearman & Sterling, an international law firm with offices here, on behalf of Fawzi Khalid Abdullah Fahad al Odah and 11 other Kuwaitis held at Guanta'namo invokes the court's robust sense of institutional pride and concern for the separation of powers, a particular interest of the conservative majority.
"It is not for the executive branch to define the jurisdiction of the federal courts," the brief says. The decision of what steps are required to protect the country "is not a judgment the executive alone should make," it continues, adding: "Someone impartial must have authority to examine the executive's actions. That is the traditional role of the judiciary."
The appeal filed by the Center for Constitutional Rights, a liberal public interest law firm in New York, on behalf of Shafiq Rasul, Asif Iqbal, Mamdouh Habib and David Hicks, the British and Australian citizens held at Guanta'namo, makes a case for the significance of the issue, all other considerations aside.
"The United States has created a prison on Guanta'namo Bay that operates entirely outside the law," the brief asserts. It adds, "The conditions that make this `war' unique are the same conditions that make it essential for the government to provide some process by which innocent people can secure their release."
Both appeals argue that the analogy to a World War II-era precedent used by both the appeals court and the Bush administration to deny judicial review to the detainees is faulty. The case, Johnson v. Eisentrager, held in 1950 that enemy aliens in United States military custody overseas had no right to invoke the jurisdiction of the federal courts by challenging their confinement through a petition for a writ of habeas corpus. The petitioners were 21 German intelligence agents working with the German military who had continued to spy for the Japanese in China after Germany's surrender, and who were convicted as war criminals by military tribunals at which they were represented by lawyers.
Lawyers for the Guantanaamo detainees say the current cases are fundamentally different, for three basic reasons: the detainees, most of whom maintain that they were victims of chaotic circumstances rather than fighters, have not been convicted of, or even charged with, any offenses; they are citizens of countries with which the United States has not been at war; and they are being held in territory that is in all functional respects part of the United States.
The Eisentrager precedent "certainly does not authorize the executive branch to imprison petitioners indefinitely at its sole discretion without any legal process or justification for its actions," lawyers for the Rasul group have told the court.
It is apparent that the justices are paying close attention to the debates reflected in the pending cases and are as aware as anyone else that the court's historical reputation has often depended on its response at equivalent moments.
Chief Justice William H. Rehnquist's 1998 book, "All the Laws but One: Civil Liberties in Wartime," surveyed the landscape from a historical perspective. In a speech in April to the Association of the Bar in New York, Justice Stephen G. Breyer was a bit more topical without tipping his hand on the current disputes.
"I have not told you what you really want to know -- how the civil liberties cases will be decided," Justice Breyer told the New York lawyers. "I would like to know that too."
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