'Korematsu II'?

Be careful what you wish for. The Supreme Court's November 10 announcement that it will review two cases challenging the detention, at Guantánamo Bay, Cuba, of foreign nationals as "enemy combatants" surprised many. The lower courts had unanimously ruled for the government. The Supreme Court rarely takes cases where the federal government has won below, and even more rarely where there has been no disagreement among the lower courts. So civil libertarians were heartened to hear that the Court had agreed to hear the cases. The detainees would probably be even more encouraged--that is, if they were allowed to know that the cases exist.

But getting the Court to grant review and winning the cases are two very different matters. The Supreme Court's past record does not inspire confidence. In times of crisis, the Court has almost always deferred to government claims of national security, no matter how unfounded--most infamously, in Korematsu v. United States, which upheld the internment of Japanese-Americans during World War II.

And in 1950 the Court ruled that federal courts lacked jurisdiction to review the convictions of German "enemy aliens" tried and sentenced abroad for war crimes--a decision the lower courts found determinative in the Guantánamo cases.

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