A Thaw In The Legal War On Terrorism?

By Viveca Novak

The U.S. Supreme Court is scheduled to hear oral arguments this week about whether the 595 detainees held at the Guantanamo Bay naval base in Cuba may challenge their captivity in federal court. It's one of three cases on the court's docket this month that strike at a linchpin of the Bush Administration's counterterrorism policy: that a wartime President may assert sweeping executive authority in the interest of national security. By late June, the court may issue key rulings on separation-of-powers issues, such as whether U.S. citizens can be locked up indefinitely without court review if the Pentagon deems them "enemy combatants." But the Justices may have already wielded some influence: at about the time the court agreed to hear the Gitmo case, the government began softening its line on detainees a bit. "There's no question that things started to change once the court agreed to hear the case," says a military official who recently left the Pentagon.

The signs abound. Some 75 terrorism suspects, including three juveniles, have been released since mid-November. Meanwhile, the Pentagon announced that the circumstances of each Guantanamo detainee will get an annual review, helping blunt criticism that prisoners are being held in total legal limbo. Officials have also formally charged two captives in preparation for the first military tribunals, suggesting some due process is on the horizon. Several captives in Guantanamo have met with lawyers, as have Yaser Esam Hamdi and Jose Padilla, two U.S. citizens held as enemy combatants in South Carolina. Their cases are set to be heard next week. Administration critics still say the legal handling of terrorism suspects amounts to a constitutional coup. Bush's lawyers, however, only need to worry about winning over five of the court's nine justices. --By Viveca Novak