From the Winter 2004 issue of The News Media & The Law, page 10.
A number of cases are currently before the U.S. Supreme Court that, collectively, may reshape the balance between individual liberties and national security in post-Sept. 11 America. Several present questions vital interest to the news media: directly, such as efforts of news groups to intervene in the super-secret appeal of Mohamed K. Bellahouel; and indirectly, like cases that determine the scope of legal rights for those detained in the war on terrorism, thereby influencing the amount of public information to report.
The following is a mid-term status report on these cases.
M.K.B. v. Warden, No. 03-6747
On Jan. 2, a coalition of 23 news organizations and public interest groups asked to join as parties in the appeal of Mohamed K. Bellahouel, an Algerian-born U.S. resident who was detained in the aftermath of the Sept. 11 attacks. Bellahouel’s case was litigated in total secrecy for more than a year before finally appearing on the public docket of the U.S. District Court in Miami in June 2003.
The court has not yet decided whether to hear the case.
Hamdi v. Rumsfeld, No. 03-6696
On Jan. 9, the Court agreed to decide whether the government may indefinitely detain an American citizen captured abroad as an enemy combatant. Yaser Esam Hamdi, a U.S. citizen of Saudi descent, was allegedly captured by the U.S. military while fighting on the side of the Taliban in Afghanistan in late 2001. He has been held since then in a South Carolina naval brig without charges and, until Feb. 1, without access to a lawyer.
The high court will review the decision of the U.S. Court of Appeals in Richmond (4th Cir.), which deferred to a two-page declaration from a Pentagon official describing the circumstances of Hamdi’s capture.
The Court has not yet set an argument date.
Padilla v. Rumsfeld, No. 03-1027
Since the Court agreed to hear Hamdi’s case — a move the Bush administration vigorously opposed — the Justice Department has asked the Court to decide the similar case of Jose Padilla, the alleged “dirty bomber” captured in Chicago. Padilla, a former gang member and Islam convert, is also a U.S. citizen being held as an enemy combatant. The chief difference is that, unlike Hamdi, he was arrested in the United States.
That distinction led the U.S. Court of Appeals in New York City (2nd Cir.) to reject the government’s contention that the president may detain a U.S. citizen captured on American soil without congressional approval.
The Court has not yet decided whether to hear the case.
Rasul v. Bush, No. 03-334, and
Odah v. United States, No. 03-343
In these consolidated appeals, the Court will decide whether detainees at the U.S. prison for suspected terrorists in Guantanamo Bay, Cuba, can bring a challenge to the legality of their confinement in U.S. courts. With one exception, the lower courts have agreed with the Bush administration’s position that American courts lack jurisdiction to hear such cases, since they are brought by foreign nationals who were detained in combat and are being held outside the United States. The U.S. government has not identified the detainees. The Court is expected to hear arguments this spring.