Justices Face Decision on Accepting 9/11 Cases: "With cases generated by the Bush administration's response to the terrorist attacks of Sept. 11, 2001, now reaching the Supreme Court in substantial numbers, the court faces a basic decision apart from the merits of any individual case: whether to become a player in the debate over where to set the balance between individual liberty and national security." As early as this week, there may be an indication of whether the court intends to remain on the sidelines, leaving the last word to lower courts that have so far deferred to the White House, or to weigh in with the same assertiveness it has displayed so often in recent years on some of the most bitterly disputed issues in American life. The first cases in the queue on the court's docket are appeals filed on behalf of two groups of detainees at the United States naval base at Guant�namo Bay, Cuba. These appeals frame an issue that at some level all the cases, despite their considerable differences, have in common: the degree of deference owed by the judicial branch to the executive for actions taken in the name of national security in a crisis. In these cases, two British citizens, two Australians and 12 Kuwaitis, all seized in Pakistan or Afghanistan during operations led by the United States against the Taliban, are challenging a ruling by the federal appeals court here in March. That court ruled that no federal court has jurisdiction to consider the legality of an open-ended detention that has now lasted more than 18 months without charges and without review by any impartial military or civilian tribunal. A wide array of groups, including former senior military officers, retired American diplomats and prisoners of war from World War II, are urging the justices to hear the appeals, which the administration opposes. Later this year, probably before its winter recess, the court will decide whether to hear a United States citizen's challenge to his open-ended detention as an "enemy combatant." The man, Yasser Esam Hamdi, an American-born Saudi who was apparently captured on the battlefield in Afghanistan, has been held without access to a lawyer in military brigs, first in Virginia and now in South Carolina, since April 2002. The federal appeals court in Richmond, Va., ruled in January that he was not entitled to a lawyer and had no right to challenge the basis for his continued detention. The justices have also been asked to hear a Freedom of Information Act case challenging the Bush administration's refusal to release information, including their names, about the hundreds of people, nearly all of them Muslim immigrants, who were arrested in the weeks following the terrorist attacks. Overturning a ruling by a federal district judge, the appeals court here ruled in June that the information, even concerning those found to have no connection to terrorism, was exempt from disclosure. Unlike the small category of cases the Supreme Court is jurisdictionally obliged to consider � the campaign finance case now awaiting decision, which Congress instructed the court to hear, is one example � these appeals all fall within the completely discretionary part of the court's docket. If the court decides not to hear them, no explanation is likely to be forthcoming, only the word "denied" on the weekly list of orders that dispose of new appeals. The votes of four justices are required for the court to agree to hear a case. The court applies several unofficial criteria for selecting roughly 75 cases to decide each term out of the 8,000 that are filed. These appeals meet none of those criteria. The issues raised have not produced conflicting rulings in the lower courts � the main test the court uses to choose cases worthy of its attention � and the appeals were not filed by the solicitor general's office, which enjoys a very high success rate in getting its cases accepted, if not always decided favorably. Indeed, Solicitor General Theodore B. Olson is urging the court not to hear the Guant�namo detainees' appeals, Rasul v. Bush, No. 03-334, and Al Odah v. United States, No. 03-343. His brief argues that the United States Court of Appeals for the District of Columbia Circuit properly interpreted a 53-year-old Supreme Court precedent to hold that "aliens detained by the military abroad" have only those rights that are "determined by the executive and the military, and not the courts," and that these cases consequently do not merit Supreme Court review. The government's formal responses to the other pending appeals � Hamdi v. Rumsfeld, No. 03-6696, and Center for National Security Studies v. United States Department of Justice, No. 03-472 � are due at the court in early December. The question, then, is whether the justices will nonetheless see these cases as simply important enough to command the Supreme Court's attention despite the absence of the traditional factors that govern discretionary review. The appeal filed by Shearman & Sterling, an international law firm with offices here, on behalf of Fawzi Khalid Abdullah Fahad al Odah and 11 other Kuwaitis held at Guant�namo invokes the court's robust sense of institutional pride and concern for the separation of powers, a particular interest of the conservative majority. "It is not for the executive branch to define the jurisdiction of the federal courts," the brief says. The decision of what steps are required to protect the country "is not a judgment the executive alone should make," it continues, adding: "Someone impartial must have authority to examine the executive's actions. That is the traditional role of the judiciary." http://www.nytimes.com/2003/11/03/national/03SCOT.html?pagewanted=all&position=