LONDON - For two years, courts did little to interfere as Western governments took on sweeping new anti-terror powers in the wake of the Sept. 11, 2001, attacks. But 2004 looks to be the year the judges have their say.

The issue that has most exasperated other countries is the prison camp at Guantanamo Bay, where the U.S. military is holding more than 600 "unlawful enemy combatants" without the rights given prisoners of war under the Geneva Conventions.

Governments are increasingly being forced to defend policies that restrict long-established civil liberties -- above all the policy of holding defendants without charge.

"There comes a time when you can't keep people locked up forever," said Clive Walker, professor of criminal justice and director of the law school at Britain's University of Leeds.

"The judicial branch of the government, which laid down supinely at the feet of the executive for a few months or a few years, now appears to have come to its senses."

A series of rulings in the United States, culminating with a court judgment last month that authorities could not hold U.S. citizen Jose Padilla indefinitely without charge, have dealt setbacks to some of the most controversial anti-terror tactics. The United States blames the 2001 hijack plane attacks against Washington and New York, which killed some 2,800 people, on Osama Bin Laden's al Qaeda organization.

And other countries also have contentious policies to defend, such as Britain, where the authorities formally abrogated from the European Convention on Human Rights to take on the power to imprison foreign terror suspects indefinitely.

TIDE TURNING IN U.S.

The first signs of a turning tide came when the U.S. Supreme Court decided it would rule on a clutch of high-profile tests of the tough Bush administration policy.

"The court has rarely agreed to deal with so many of these things because the usual feeling has been the executive gets great deference in a national security crisis," said Robert Levy, constitutional law expert at the Cato Institute, a U.S.-based libertarian think tank.

"There is some indication that because the executive branch has, I think, overreached, that finally we are getting some intervention by the judiciary."

The issue that has most exasperated other countries is the prison camp at Guantanamo Bay, where the U.S. military is holding more than 600 "unlawful enemy combatants" without the rights given prisoners of war under the Geneva Conventions.

In November, the Supreme Court agreed to rule in the next year on whether U.S. courts have jurisdiction over the base, potentially letting detainees raise cases about their treatment.

The Bush administration's most controversial new powers stem from its definition of prisoners as "combatants," allowing the military to hold them outside the regular legal system.

The administration argues that the president, as commander in chief, has the constitutional power to capture enemies without interference from the courts.

For months, U.S. courts agreed. A federal appeals court in Virginia decided in the case of Yasser Hamdi, one of two U.S. citizens captured fighting for the Taliban in Afghanistan, that allowing judges to interfere in such cases would make it impossible for the military to wage war.

"Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one," wrote Chief Judge J. Harvie Wilkinson.

But instead of declaring the case settled, the Supreme Court said this month that it will hear Hamdi's appeal.

Rights lawyers accept that battlefield prisoners, such as Hamdi -- captured in Afghanistan -- are combatants. But the administration has gradually stretched the definition to cover prisoners captured in other parts of the world, far from theaters of conventional military operations.

In May 2002 the government applied the "enemy combatant" label to Padilla, an American citizen arrested at Chicago's O'Hare airport. Officials said he was planning to detonate a radioactive bomb but did not charge him with a crime.

Last month, in a major setback to the administration, a federal appeals court ordered the government to release Padilla within 30 days or transfer him to civilian courts. The government has asked the Supreme Court to overturn the ruling.

In Britain, the government passed emergency legislation in the wake of Sept. 11 that allowed it to hold foreign terror suspects without charge. Authorities are using that power to hold 14 foreigners, including Sheikh Abu Qatada, described as one of the leading al Qaeda figures in Europe.

Britain's High Court ruled that the measure was legal, but its Law Lords, the country's highest court, have decided to consider an appeal on behalf of the detainees this year.

In a sharply worded report in December, a special panel of senior members of parliament ruled that the entire anti-terror law must be reviewed within six months and urged the government to scrap the measures permitting detention without charge.

Courts have also dealt major setbacks to prosecutors in Germany -- the only country so far to have convicted a suspect on charges relating to the Sept. 11 attacks.

PREVENTING ATTACKS

Ultimately, how far courts roll back some anti-terror policies may depend on whether there are more attacks.

Although militants thought to be linked to al Qaeda have struck in such Muslim allies of the West as Indonesia, Saudi Arabia and Turkey over the past two years, there has not been a single major attack in the West itself since Sept. 11.

States argue that their additional powers are one of the reasons behind their success at stopping new strikes. Charging detainees with ordinary crimes would require authorities to reveal evidence against them, potentially exposing intelligence.

"Have (detentions) probably prevented attacks? Certainly the security services think they have," said Kevin Rosser, terrorism expert at consultancy Control Risks Group.

"I think it throws up a very great dilemma. On the one hand nobody wants to see freedom and due process sacrificed. At the same time, without access to the information that governments possess, it is very difficult to arrive at a judgment about whether abuses are taking place, and whether it's helping."

© 2004 Copyright Reuters Ltd

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