This is the Cato Daily Podcast for Thursday, December 6, 2007.

I'm Caleb Brown.

The Supreme Court has heard arguments on whether or not so-called enemy

combatants should have access to U.S. courts.

Tim Lynch, the director of the Cato Institute Project on Criminal Justice, filed a brief on

behalf of those detainees and listened in on yesterday's arguments.

This case represents an important test of the separation of powers principle because what we have in this

case is the president and Congress getting behind this law it's called the Military

Commissions Act which tries to withdraw habeas corpus jurisdiction from the courts.

And then the argument is whether or not this withdrawal of jurisdiction

is constitutional or not.

So the court, well, this is what we argue in the Cato brief is that the court should come to the defense of its own jurisdiction and its role and province in habeas corpus litigation.

Is there a case in which the court might have ruled that they in fact don't have

jurisdiction to make decisions? They do do that from time to time when they think

that there's like an intra-branch squabble, let's say, between the executive

branch and the legislative branch, sometimes the court say, we are not going to get into that

dispute.

This is between you guys to fight it out and we're not

going to assume jurisdiction over that type of situation. But in this case the

Bush administration and Congress have both said you may not get involved.

That's right.

And then the question becomes whether or not that is constitutional.

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