Drama Fit for the Airwaves


For too long, U.S. Supreme Court justices have been skittish about letting Americans listen in on their proceedings while the justices are still deliberating. But the compelling broadcasts of Wednesday’s hearing in the enemy combatant cases, which turned into a dramatic civics lesson, demonstrate why the public should be able to hear all cases that quickly.

Supreme Court hearings are public, and seats in the gallery are open. Since 1955, the high court also has taped oral arguments, sending the recordings to the National Archives in June, at the end of each term. The following fall the tapes are available to anyone who treks to Washington to listen. But by that time, few people except legal scholars and historians are still interested.

Beginning with the two Florida cases involving the disputed 2000 presidential election, the justices have granted a handful of requests to broadcast hearings on the same day they occurred. Each time, the justices agreed that the cases were of exceptionally high public interest.


That was certainly true Wednesday. The debate over the rights of detainees Jose Padilla and Yaser Esam Hamdi couldn’t be more central to this democracy. The two men -- both U.S. citizens -- were jailed after the Sept. 11 terrorist attacks, after the president declared them to be enemy combatants. Hamdi was arrested on the battlefield in Afghanistan, suspected of fighting for the Taliban, and Padilla at the Chicago airport; he is suspected of plotting to set off a radioactive bomb. In all this time, neither man has been charged with any crime or permitted to consult with an attorney.

Lawyers for President Bush insisted that he could unilaterally order such detentions as commander in chief and that his decisions were exempt from court review. But the recordings reveal justices posing appropriately skeptical questions. “How does the government justify some going through the criminal process and others just being held indefinitely?” asked Justice Ruth Bader Ginsburg.

At the same time, the debate shows the justices earnestly searching for answers to tough questions. “What rights does Padilla have, if any ... that a belligerent who is apprehended on the battlefield does not have?” queried Justice Anthony Kennedy.

The court’s decision will come by late June. Meanwhile, the recordings encourage Americans to wrestle with these questions along with the justices. Listen for yourself at