02/29/2012 11:31 am ET Updated Apr 30, 2012

Constitution Check: Is the Constitutionality of the "War on Terrorism" a Settled Issue?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: the constitutionality of government policies dealing with terrorism since the attacks of September 11, 2001.

The statement at issue:

"Our constitutional system of checks and balances has worked extraordinarily well in the past decade to legitimize [aggressive counterterrorism policies] and to generate a national consensus in support of them....Years of fractious legal and political fights have left us with a lawful, legitimate and secure system of detention that has broad national support."

-Jack Goldsmith, Harvard law professor and former George W. Bush Administration official, in an op-ed column "On counterterrorism, the system worked," in the Washington Post, Sunday, February 19, commenting on a recent Washington Post-ABC News poll on public attitudes about anti-terrorism policy.

We checked the Constitution, and...

Ten years have passed since the U.S. government opened the military detention facility at the U.S. Naval base at Guantanamo Bay, Cuba, symbolizing an energetic effort to round up suspected terrorists. Perhaps a decade might have been long enough for the constitutional issues over war-on-terrorism policies to get settled. That hasn't happened, though.

Professor Goldsmith probably was quite premature in declaring a consensus in the national controversy over those policies, based solely on polling data. Indeed, there remains as much tension within the Constitution's checks-and-balance system over these issues as at any time over the past decade, even if polling numbers do not reflect it.

Just last week, the Obama administration took to the Supreme Court the latest appeal in the continuing courthouse battles over the constitutionality of the government's highly controversial program of secret wiretapping that has gone on globally, and continues, and sometimes has monitored Americans in the surveillance.

And already at the Court, awaiting the Justices' responses, is a new round of a half-dozen appeals by lawyers for Guantanamo detainees, complaining anew that a lower federal court has been defying the Supreme Court's 2008 decision in the case of Boumediene v. Bush, which clearly anticipated that some detainees' release would in time be ordered by the courts. So far, only one detainee out of more than 40 with Boumediene-mandated cases in court has won an actual court-ordered release. In the meantime, a federal judge in Washington is weighing the legality of detentions at a U.S. prison at an air base outside Kabul, in Afghanistan.

On May 3rd, the U.S. Circuit Court of Appeals for the District of Columbia will hold the first civilian court hearing on the constitutionality of a conviction emerging from military commission prosecutions at Guantanamo Bay, an alternative judicial system frequently bogged down in difficulty.

And the Obama administration continues from time to time to use civilian courts to try terrorism suspects for criminal acts, despite the clearly expressed wish of Congress -- supposedly mandated by a series of laws -- to put all such cases into the military commission system. At the end of December, President Obama signed into law the latest of those mandates, but he did so with a protest that he would not be bound by much of what Congress had decreed.

Still, the inter-branch feuding that is still going on, with many fundamental issues still unresolved, is fully matched by a deep tension even within the judicial branch itself. Three judges of the D.C. Circuit Court have repeatedly and caustically criticized the Supreme Court for its rulings on legal rights for detainees, accusing the Court of cowardly refusing to take responsibility for the consequences of those rulings, blasting the Justices for relying upon "airy assumptions," and even likening the Justices to the characters in The Great Gatsby, creating messes for other people to clean up. The latest such blast has been brought to the Justices' attention in one of the newly filed detainee appeals.

Lawyers for detainees have tried repeatedly, but with absolutely no luck so far, to persuade the Court to come to its own defense and to make its 2008 Boumediene decision on detainees' rights into a reality. One of the reasons that the Court may have opted to stay on the sidelines is that it is apparently still deeply divided on the question, and it has only eight Justices to put to work on the continuing Guatanamo legal controversy, even if it chose to return to it. New Justice Elena Kagan has taken herself out of most of those cases, due to her prior service in the Obama administration's Justice Department. That leaves the prospect of a series of 4-4 ties, settling nothing.

Much of the detail of this internal feuding within the federal courts has been sparingly covered, if at all, in the media, so there is a realistic chance that the American public, in apparently putting its support behind anti-terrorism efforts, does not know the full story.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.