In Debate on Antiterrorism, the Courts Assert Themselves
NBC News
Published: December 19, 2003

NBC News, via Associated Press
A federal appeals court decision could force the government to try Jose Padilla, suspected in a scheme to set off a "dirty bomb," in civilian courts.

WASHINGTON, Dec. 18 — The broad presidential powers invoked by the Bush administration after Sept. 11, 2001, to detain suspected terrorists outside the civilian court system is now being challenged by the federal courts, the very branch of the government the White House hoped to circumvent.

The two separate appellate court rulings on Thursday swept away crucial parts of the administration's legal strategy to handle terrorist suspects outside the criminal justice system and incarcerate them indefinitely without access to lawyers or to the evidence against them.

The rulings are by no means a final judicial verdict on the administration's approach. But the rulings demonstrated powerfully the willingness of the courts to challenge the administration's procedures, which were put in place without Congressional approval in the tumultuous months that followed the Sept. 11 attacks.

The issue of whether the administration has gone too far will not be decided definitively until the cases reach the Supreme Court. The court has agreed to decide whether detainees at Guantánamo Bay, Cuba, are entitled to access to civilian courts to challenge their open-ended detention.