WASHINGTON -- The Bush administration is softening its hard-line strategy for prosecuting those detained in the war on terror following increased pressure from the courts, allies abroad and even former top Justice Department officials.
Within a span of 48 hours this week, the government gave two terror suspects access to lawyers, reversing its long-held stance that the enemy combatants were beyond the court's reach.
Legal experts attribute the sudden shift to the growing willingness of judges to give the administration's tactics a hard look.
Already there have been rulings in lower federal courts that have gone against the government, notably in the case of al-Qaida loyalist Zacarias Moussaoui and alleged dirty-bomb plotter Jose Padilla. The liberal 9th U.S. Circuit Court of Appeals this week struck down a portion of a widely used 1996 antiterrorism law.
The Supreme Court entered the fray recently, over the objections of the administration, when it agreed to hear a case involving the hundreds of foreigners detained at Guantanamo Bay and whether they should have access to American courts.
"When the Supreme Court agreed to hear the Gitmo case they sent a signal to the government that it was not going to stand back and give the executive branch unfettered control in the war on terrorism," said Scott Silliman, executive director of Duke University Law School's Center for Law, Ethics and National Security.
Acting Deputy Attorney General James Comey said Thursday that the administration was reviewing the court setbacks closely "to figure out what the next steps are."
At the heart of most of the contentious cases is how much power the executive branch can claim during wartime in the name of national security.
On Wednesday, Deputy U.S. Solicitor General Paul Clement, battling an unfavorable lower court ruling, argued before a federal appeals court in Richmond, Va., that national security essentially trumps Moussaoui's right for access to al Qaeda witnesses who could help his defense.
But this week the government also retreated on one of the most contentious issues to arise from the prosecution of the war on terror: enemy combatants.
The Defense Department said Yaser Esam Hamdi, an American-born Taliban fighter, and David Hicks, an Australian being held at Guantanamo Bay, could both see lawyers.
Hicks, who was captured in Afghanistan with the Taliban, is one of six foreign enemy combatants in Cuba possibly facing a military tribunal. He's the first to be appointed legal counsel. The detention of Australians and British citizens at Guantanamo Bay has drawn sharp criticism from those countries.
Hamdi, a U.S. citizen, has been held incommunicado since he was picked up on the battlefield in Afghanistan in November 2001.
Hamdi's lawyer, Frank Dunham, has asked the Supreme Court separately to determine whether the overnment can hold Hamdi indefinitely without filing charges against him. The court hasn't yet agreed to hear Hamdi's plea.
In the case of Padilla -- the only other American being held as an enemy combatant -- appeals court judges in New York were skeptical of the president's power to keep Padilla from his lawyer. A ruling is pending.
Michael Ratner, president of the Center for Constitutional Rights, which represents the families of Hicks and several other detainees, said the government has recently "been pulled up against the ropes."
"The administration is nervous because they realize judges are serious about looking hard at enemy combatants," Ratner said.