Terror Rulings Highlight Supreme Court Term

Liberals, Conservatives Can Count victories, but Justices Leave Many Questions Hanging

BOB EGELKO / San Francisco Chronicle 5jul2004

The U.S. Supreme Court ended its 2003-04 term dramatically last week with historic rulings on the limits of presidential power over terror suspects, and major decisions on Internet pornography, police interrogations and lawsuits for international human rights violations.

But the term was also noteworthy for the many questions the court left unanswered.

Last Monday's rulings in three terror-related cases made it clear that two U.S. citizens held in military brigs, and 600 foreign captives held at Guantanamo Bay Naval Base in Cuba, had the right to go to court and challenge their confinement as "enemy combatants." Virtually everything else about their cases was left up in the air — for example, which courts will hear them, what rules will apply, and what role military tribunals might play.

A ruling Tuesday allowed foreigners to sue in U.S. courts for violations of well-established international laws but did little to identify those laws. Earlier in the session, a decision allowed disabled people to sue states for obstructing their access to courts or other facilities where they could exercise important civic rights, but the court didn't say what those were. In another case, the court overturned a Washington state sentencing law that allowed a judge to impose on convicted felons longer prison terms without jury fact-finding, but didn't discuss how the ruling might apply to other state and federal sentencing systems in the same category.

And after holding hearings on two of the highest-profile cases on the docket — the challenge to secret meetings of Vice President Dick Cheney's energy task force and the constitutionality of the phrase "under God" in the Pledge of Allegiance — the justices decided not to decide either issue.

They returned the Cheney case to a lower court with instructions to pay more attention to the Bush administration's separation-of-powers claim that courts shouldn't intrude in the affairs of the executive branch. They dismissed the pledge case by finding that Michael Newdow, the Sacramento atheist who challenged the daily recital in his daughter's classroom four years ago, had no standing to sue because a state court had granted the mother the right to direct the child's education.

"More than any term I can remember, what (the court) didn't decide will raise important questions," said University of Southern California Law Professor Erwin Chemerinsky.

In some cases, like the Pledge of Allegiance, the justices were evidently unable to reach a consensus and concluded "they would add less clarity rather than more" by issuing a divided ruling, said Pepperdine University Law Professor Douglas Kmiec. Other inconclusive rulings, like a terrorism case decided on narrow grounds, showed "a respect for the separation of powers," he said.

"The court punted a lot of the hard stuff to the future," said John Yoo, a UC Berkeley law professor and former Bush administration Justice Department official. "The prudent thing is not to decide anything you don't have to. The down side is, it costs the system a lot," in current uncertainty and future litigation.

Some important issues were resolved, however, during the court's term that began the first Monday in October and ended Wednesday.

The court set ground rules for this year's national elections by upholding most of the McCain-Feingold campaign finance law, which banned "soft money," the previously unregulated contributions to political parties from corporations, unions and other interest groups. As the justices themselves foresaw, the ruling hasn't kept big money out of politics, but kept the door open for future efforts at regulation.

The court also protected HMOs from suits by patients harmed by improper denial of coverage, put new limits on police interrogation tactics and prosecution of hearsay evidence, and upheld state laws allowing police to arrest suspects who refuse to identify themselves.

Terror-related rulings

Most importantly, the court confronted the central issue in the three cases before it arising from the Sept. 11, 2001, terror attacks: whether President Bush has unreviewable authority, as he claimed, to deny access to judges and lawyers for foreign-born battlefield captives and alleged U.S. collaborators with the Taliban and al Qaeda.

The court's answer was expressed most clearly by Justice Sandra Day O'Connor: "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens." The prisoners, including the foreigners, are entitled to lawyers and to some type of judicial review of their status and confinement, said a sizable majority of the court — 8-1 in one of the cases.

The rulings left some issues unresolved, but "the court decisively put to rest the notion that ... the president has the power to remove courts from designating who are enemy combatants and how these people are treated," said Mark Moller of the Cato Institute, a libertarian organization.

The American Civil Liberties Union contrasted the rulings with the decision of an earlier court that upheld the confinement of Japanese Americans during World War II.

"The state of civil liberties is always perilous in periods of national crisis," said ACLU legal director Steven Shapiro. "The court deserves great credit for recognizing that the rule of law cannot be enforced in the absence of meaningful judicial review."

But the court did not order the release of any prisoner and did little to interfere with day-to-day military control of the detainees. The administration and its supporters were able to claim at least a partial victory.

"The president didn't get everything he wanted, but he got what he needed to continue effectively providing for the common defense," said Pepperdine's Kmiec, who headed the Office of Legal Counsel under President Ronald Reagan.

Shift toward center

The cases also illustrated what appears to be a centrist trend on a court that has been widely regarded as the most conservative in nearly a century.

This year's disability ruling, although confined narrowly to claims of denial of access to court facilities, was the second in two years to allow states to be sued for damages under a federal civil rights law. They followed a series of rulings in previous years limiting federal power over the states - - one of the most important doctrines of the court under Chief Justice William Rehnquist.

Liberals could also point to victories in the campaign finance ruling; in a decision to not allow for criminal penalties against commercial Web sites that expose minors to sexually explicit material; in the ruling that appeared to allow some suits against U.S. corporations for rights violations abroad; and in rulings expanding the right to a jury trial on sentencing issues and limiting prosecutors' ability to use witnesses' statements to police as evidence.

There were conservative victories as well, such as the unanimous ruling on HMO suits, which overturned laws in a number of states including California; another unanimous ruling upholding Bush's decision to allow Mexican trucks onto U.S. highways without an environmental review; and in most of the criminal cases that came before the court, including rulings on car searches and suspects who refuse to identify themselves.

But after the mixed results of this term and the epic decisions of last term allowing race to be considered in college admissions and overturning state sodomy laws, the notion of a solidly conservative court "has become more myth than reality," said San Francisco attorney Vince Chhabria, a former Supreme Court clerk.

The Cato Institute's Moller said the court seems to have shifted from an ideological conservatism, in which Justice Antonin Scalia held sway, to a more libertarian conservatism that "believes in checks and balances and limits the power of the central government."

Scalia, who dissented from some of the term's major rulings, expressed his frustration on the final day last Tuesday when he denounced a 6-3 decision allowing suits over violations of universally accepted international laws.

"This court seems incapable of admitting that some matters — any matters — are none of its business," he said.

Major rulings by the Supreme Court during the 2003-04 term

The following decisions were some of the major U.S. Supreme Court rulings during the 2003-04 term:

• Guantanamo: Ruled 6-3 that foreign-born battlefield captives, held at the Guantanamo Bay Naval Base in Cuba as alleged collaborators with the Taliban or al Qaeda, have the right to go to U.S. courts to challenge their confinement.
• Combatants: Ruled 5-4 that President Bush has authority to order a U.S. citizen captured while fighting in Afghanistan locked up as an "enemy combatant," but ruled 8-1 that the detainee, Yaser Hamdi, had the right to consult a lawyer and challenge his confinement. Ruled 5-4 that another alleged enemy combatant, Jose Padilla, was not entitled to sue for his freedom because his suit was filed in the wrong jurisdiction, New York. He is being held at a Navy brig in Charleston, S.C.
• Politics: Voted 5-4 to uphold most of the McCain-Feingold campaign finance law, including its ban on political parties' receipt of "soft money," the previously unregulated contributions from corporations, unions and wealthy individuals.
• Porn: Voted 5-4 to block enforcement of criminal penalties against commercial Web operators who post sexually explicit material without taking steps to shield minors, such as requiring a credit card. Returned the case for a lower court for trial on whether the law violates freedom of expression.
• HMOs: Ruled unanimously that federal law prohibits states from authorizing patients to sue health maintenance organizations for damages for harm suffered because of denial of coverage.
• Disability: Ruled 5-4 that states can be sued for damages for denying disabled people accommodations that would allow them access to courts or other facilities providing fundamental civic rights.
• International: Unanimously dismissed a suit by a Mexican who was kidnapped in Mexico, on orders of U.S. agents, and brought to California for a murder trial that ended in his acquittal. Ruled 6-3 in the same case that federal judges can authorize suits by foreigners for violations of universally accepted international human rights laws.
• Cheney: Voted 7-2 to send a lawsuit, which seeks information about meetings between the energy industry and Vice President Dick Cheney's energy task force, back to a lower court with instructions to pay more attention to the Bush administration's claim that court intervention would violate separation of powers.
• Pledge: Ruled 5-3 that Sacramento atheist Michael Newdow, who challenged the phrase "under God" in the Pledge of Allegiance recited in his daughter's classroom, had no legal standing to sue because a state court put the girl's mother in charge of her education.
• Miranda: Ruled 5-4 that prosecutors cannot offer evidence of a confession obtained by a police officer who: questioned a suspect without warning him of his right to remain silent and consult a lawyer; waited until the suspect confessed; and then issued the warning and questioned him again.
• Trucks: Unanimously upheld President Bush's decision to allow Mexican trucks to enter U.S. highways without ordering an environmental review.
• Identity: Ruled 5-4 that private citizens who are stopped and questioned by police on suspicion of wrongdoing can be prosecuted under state laws for refusing to identify themselves.

source: http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/07/05/MNGEV7GQQO1.DTL&type=printable 11jul2005