They make an unlikely band of brothers, the nine justices of the Supreme Court. There's octogenarian John Paul Stevens; diminutive Ruth Bader Ginsburg; rotund, cigar-chomping Antonin Scalia; and William Rehnquist, a 79-year-old with a back so bad he can't sit through an hour-long oral argument.
Yet despite their age, size, and physical infirmities, the justices have volunteered to play their part in the war on terror, boldly going where few courts have gone before. Their decisions in three last-minute cases will help to define the limits of presidential authority in a war that could last for decades.
For supporters of President Bush, the legal question boils down to this: Who has the final say in times of war-the chief justice or the commander in chief? The administration wants the high court to step aside, allowing the president to protect the country without interference by the judicial branch.
But critics of the administration see another, more important issue at stake: In their pursuit of law and order, should presidents be allowed to operate outside the law?
It's been more than half a century since the Supreme Court last considered its proper role during wartime, and many experts say that the legal precedents set during World War II have little bearing on today's fight. With no organized enemy army and no hope of a formal treaty, the war on terror is redefining the rules of engagement-and reawakening fears of an unchecked executive power.
Of the three cases, the justices took up perhaps the easiest one first. On April 20, the court heard oral arguments on behalf of some 600 foreigners being held at the Guantanamo Naval Base in Cuba. Human-rights advocates say the prisoners should be allowed to petition U.S. courts for their release, while the Bush administration insists that foreign detainees held on foreign soil have no rights in the American judicial system.
"The United States is at war," Solicitor General Theodore Olsen reminded the court, and despite the "extraordinary threat" represented by al-Qaeda fighters and Taliban loyalists, imprisoned enemy combatants were asking for a legal right "that is not authorized by Congress, does not arise from the Constitution, [and] has never been exercised by this court."
Arguing for the plaintiffs, attorney John Gibbons accused the Bush administration of creating a "lawless enclave" at America's oldest overseas naval base, where prisoners can be held with no legal representation, no charges filed against them, and no oversight by any court or international convention.
The prisoners in question were captured on the battlefields of Afghanistan, accused of fighting for the Taliban or al-Qaeda. Relatives of many detainees say they are innocents who were simply in the wrong place at the wrong time, but they have been unable to make their case because the prisoners are denied almost all contact with the outside world, including both lawyers and loved ones.
The Bush administration says such isolation is perfectly legal because the detainees are imprisoned overseas, not on American soil. During oral arguments, however, several justices seemed skeptical of that argument. While recognizing that America is not technically sovereign at Guantanamo, Justice Stephen Breyer expressed concern at the notion that the courts should give up all responsibility for what goes on there. "I'm still honestly most worried about the fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has the power to do everything."
Mr. Gibbons pounced on such doubts, arguing that American law does, in practice, rule at Guantanamo. "If one of the detainees here assaulted another detainee in Guantanamo, there's no question they'd be prosecuted under American law, because no other law applies.... Cuban law has never had any application inside that base. A stamp with Fidel Castro's picture on it wouldn't get a letter off the base."
Although the legal issue in question on April 20 was relatively narrow, the court's more liberal justices made it clear that they saw a bigger principle at stake: the right of the courts to balance the power of the president. "It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check," Justice Breyer said. "That's problem No. 1."
It will likely be an even bigger problem on April 28, when the court hears oral arguments in the cases of two Americans being held as enemy combatants in the war on terror. Yaser Hamdi was captured with a group of Taliban fighters in Afghanistan, while Jose Padilla was arrested at Chicago's O'Hare International Airport on suspicion that he was conspiring with al-Qaeda to explode a radioactive "dirty bomb" on American soil.
They have not been formally charged with any crime, but both men are being held without legal counsel at a Navy brig in Charleston, S.C. Their lawyers say such detentions are unconstitutional-that only Congress, not the president, can deny an American citizen access to the courts. If the Bush policy is allowed to stand, said Mr. Padilla's attorney in his brief for the high court, any president would have "virtually unbridled and unreviewable power to imprison American citizens."
Lower courts have split on the question. In reviewing the Padilla case, the 2nd Circuit Court of Appeals ruled against the administration, saying that Congress' 2001 resolution authorizing the use of force in the war on terrorism did not specifically grant the president the power to treat American citizens as enemy combatants. The 4th Circuit sided with the administration, however. It ruled that under constitutional separation of powers, the judicial branch has no right to review detentions ordered by the commander in chief in time of war.
Taken together, the three cases will help to define the legal limits in a war against an enemy unlimited by conscience, morality, or international law. Civil libertarians believe a loss for the Bush administration could also signal the beginning of the end for unrelated wartime measures such as the Patriot Act (see sidebar).
A decision in all three cases is expected by July.