The Supreme Court, after a four-year break from terrorism issues, is set to decide as soon as today whether to again take up constitutional challenges to anti-terrorism laws involving wiretapping and the Guantanamo prisoners.
In one case, the Obama administration is asking the court to block a suit against the government's monitoring of international phone calls and emails. And in the other set of appeals, lawyers for six detainees at the U.S. naval base at Guantanamo Bay, Cuba, are asking the justices to make good on their promise of four years ago and give the inmates a "meaningful opportunity" to go free.
President George W. Bush maintained that the detainees were military prisoners who had no rights under American civilian law. The Supreme Court disagreed and held that the Constitution's right to habeas corpus extended to the hundreds of Guantanamo prisoners. They have a right to a "meaningful review" of their cases by a federal judge, said Justice Anthony Kennedy.
Since then, no detainee has gone free based just on a court order. The Obama administration has agreed to send home dozens of detainees who were seen as no longer a danger. But whenever the administration has opposed a detainee's claim, it has won in the conservative-leaning U.S. Court of Appeals in Washington.
"The bottom line is no detainee has won when his case went to the D.C. circuit," said David Remes, a lawyer for several detainees.
He urged the court to take up the case of Adnan Latif, a 36-year-old native of Yemen who says he went to Pakistan in 2001 for medical treatment after he was injured in an auto accident. Latif was captured in Pakistan in 2001, and the government relied on a field intelligence report in which he was said to have admitted traveling to Pakistan and Afghanistan to fight with the Taliban.
A federal judge sided with Latif, but the U.S. District of Columbia Circuit Court of Appeals disagreed and said the intelligence reports are presumed to be accurate. The appeal asks the court to put the government to a higher standard of proof.
The justices, however, are more likely to hear the administration's appeal in the wiretapping case. It poses the question of whether journalists, lawyers and human rights activists have standing to challenge wiretapping of suspects overseas because their private communications may be intercepted.
In the last months of the Bush administration, Congress confirmed the government's broad power to monitor international phone calls and emails in an effort to detect terrorist plots. The Foreign Intelligence Surveillance Act of 2008 allows extended electronic surveillance "targeting" non-Americans believed to be outside the United States and who raised the suspicions of U.S. intelligence officials.
The American Civil Liberties Union sued and said this "dragnet surveillance" would likely capture the private calls and emails of thousands of Americans who are not targets but who have contact with people abroad. They said this surveillance violates the Fourth Amendment's ban on unreasonable searches.
Last year, a divided U.S. appeals court in New York cleared the suit to proceed on the theory that the plaintiffs had a "reasonable fear" of having their calls intercepted.
Obama administration lawyers appealed, saying that because the surveillance targets foreigners, these U.S. plaintiffs have no standing to complain.