The Supreme Court has an opportunity to state that national security trumps civil liberties and due process in only rare and narrow circumstances.
The court should agree to hear two cases headed its way from the federal circuit courts. One is an appeal on behalf of two Brits, two Australians and 12 Kuwaitis captured in Afghanistan and Pakistan almost two years ago and held at Guantanamo Bay ever since.
The administration asserts the right to hold them indefinitely, without charge or review, and with no right of recourse under U.S. or international law. The administration was backed by a federal judge who ruled that Guantanamo was outside the jurisdiction of the U.S. courts because technically it is not U.S. territory, even though it has been under our total control for the last 100 years.
The court should bring some ground rules to this legal limbo. There may be grounds for holding some of these detainees indefinitely but not on the executive branch's uncontested and unexamined say-so.
More troubling is the case of Yaser Esam Hamdi, which the justices will also have a chance to address. Hamdi is a young Saudi, captured in Afghanistan, who has been held incommunicado and without charge in a Navy brig since April 2002, when the authorities learned that he was born in Louisiana and could claim U.S. citizenship.
Even more egregious is the case of Jose Padilla, a petty criminal but born in the United States and a lifelong resident. Padilla apparently dallied with al-Qaida and, according to the Justice Department, planned a "dirty bomb" attack in the United States.
Neither of these accusations has been examined because Padilla has also been held incommunicado in a Navy brig — without lawyer, judge or charge — since May 2002.
If U.S. citizenship means anything, it means the right to a lawyer, the right to be brought before a judge and the right to contest the charges. The Fifth Amendment is very clear on this, and the Supreme Court should so find.