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Justices reassert role of judicial oversight

Terrorism rulings highlighted busy term for Supreme Court

Bill Mears
CNN Washington Bureau

Supreme Court

WASHINGTON (CNN) -- Just weeks after the September 11, 2001 attacks, Supreme Court Justice Sandra Day O'Connor hinted at the legal challenges that would lie ahead in a new age of terror.

In a speech in New York, O'Connor spoke about how a nation of laws would have to balance national security with long-established individual rights and protections.

"Can a society that prides itself on equality before the law treat terrorists differently than ordinary criminals?" O'Connor asked. "And where do we draw the line between them?"

The answer came 30 months later with the Supreme Court ending its recent term by handing major defeats to the Bush administration, and dampening a key pillar of their aggressive anti-terror policies.

The justices ruled American citizens imprisoned in the United States and non-U.S. fighters held overseas have a right to challenge their detention in federal court. (Full story)

"We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," wrote O'Connor in her majority opinion.

The court upheld the broader right of the executive branch to hold so-called enemy combatants. But the rulings weakened President Bush's position on handling terrorism suspects.

"There is clear repudiation of the government's absolute position that the courts have no role," said Thomas Goldstein, a Supreme Court appellate attorney. "The Supreme Court did offer the executive a real change to balance how much procedure the detainees would get, it's not that they have all the rights of a U.S. citizen in every court case, but it does absolutely reject the president's claim that it is only his choice who gets to go to court and when."

The court did not provide a roadmap for just how and when these detainees will get their day in court. The Bush administration has begun drawing up procedures, but has not yet offered details.

The terrorism rulings were likely the most significant in what was a busy term for the justices; approximately 84 cases were decided in the 2003-2004 term.

Among the court's most significant decisions were cases dealing with executive power, search and seizure, Miranda rights, campaign finance, church-and-state conflicts, the death penalty and sentencing.

Court less ideological, analysts say

Some legal experts say the court has settled on a less ideologically driven path than during previous sessions led by conservative Chief Justice William Rehnquist.

"The Rehnquist revolution has reached a certain equilibrium," said Edward Lazarus, a former Supreme Court clerk and author of a book on the justices. "They don't seem to be going in any radical directions. Even among the two liberal justices, [Stephen] Breyer and [Ruth Bader] Ginsburg, they are cautious pragmatists."

Lazarus said several unusual alliances were formed in many of the bigger rulings, where traditional liberal and conservative justices came together.

Such was the case of Yaser Hamdi, a Saudi Arabian man born in Louisiana. He was captured in Afghanistan in 2001, and eventually transferred to U.S. military custody, without access until recently to a lawyer. In the biggest ruling this term, the court said he deserved a hearing before a judge.

Moderate-liberal justice David Souter, as well as Breyer and Ginsburg sided with Hamdi, joining the more conservative Rehnquist, Anthony Kennedy and O'Connor. Supporting the government was liberal John Paul Stevens, joined by the two most conservative justices, Antonin Scalia and Clarence Thomas.

This ideological comfort may come with the fact the nine-member bench has been together without a vacancy for a decade. By all accounts the justices work well with each other.

It is unlikely any change will come before next year: No retirements were announced as the justices headed for a three-month summer recess, and it is rare there is a change in a court during an election year.

But changes are expected this time next year, with four justices in their 70s or 80s.

"So much of where the justices go in terms of terrorism, law enforcement, even abortion, a range of issues will depend on the court's composition in coming years," Lazarus said.

Terrorism cases will remain issue in courts

start quoteThe Rehnquist revolution has reached a certain equilibrium. They (Supreme Court) don't seem to be going in any radical directions.end quote
-- Edward Lazarus, Supreme Court watcher

The terror rulings will ensure federal courts around the country will continue to weigh in on the issue for years to come. Individual appeals on behalf of detainees held in the U.S. and overseas can be expected in coming weeks.

By refusing to offer specifics on the format and timetable on when terror suspects will receive custody hearings, advocates on both sides of the issue see legal advantages.

"It is crucial that we recognize the important separation of powers principles that our democracy was founded on," said Ann Beeson, associate legal director of the ACLU. "There should always be a check on the executive branch's power, the president's power, to take away that most fundamental of liberty interests and that is the government's ability to detain a person, possibly indefinitely."

But supporters of the Bush administration say much of the president's power remains intact.

"Detaining captured enemy combatants is an integral part of the president's ability to prosecute such a war," said David Rivkin, a constitutional law expert and private attorney.

"Had the court ruled otherwise, instead of giving the president a choice between treating people as criminal suspects or releasing them, it would have dealt a very heavy blow to our ability to prosecute this war, so that basically affirms that the administration is proceeding in the right way."

Many legal experts predict an uneasy balance in coming years between the courts and those tasked with fighting and prosecuting that war.

Chief Justice Rehnquist has recognized the inherent conflict between individual liberties and the government's need to protect its citizens.

In his 1998 book, "All the Laws But One," he wrote, "It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty."

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