Outside the Beltway

SCOTUS AND GUANTANIMO

James Joyner · Monday, November 3, 2003 · 1 comment

Linda Greenhouse makes a worthwhile observation:

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.

Historically, the Court has been quite reluctant to rule on such political questions, especially when they intersect with foreign policy. My guess is they will steer clear of the cases involving non-citizens but they will be hard-pressed to avoid ruling on those involving Americans. The case law on this topic is rather mixed, although generally in the direction of giving presidents wide latitude during wartime. Since we’re technically not at war, however, many of those arguments are rather strained.