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Supreme Court Weighs Enemy Combatant Case

Posted on: Wednesday, 28 April 2004, 06:00 CDT

WASHINGTON - President Bush has overstepped his authority since the Sept. 11 attacks by jailing American citizens suspected of links to terrorism and denying them access to lawyers and courts, an attorney for a U.S.-born terrorism suspect told the Supreme Court on Wednesday.

"Never before in history has this court granted the president a blank check to do whatever he wants to American citizens," lawyer Jennifer Martinez argued on behalf of Jose Padilla, a former Chicago gang member and alleged al-Qaida associate arrested at the O'Hare airport.

Government lawyer Paul Clement countered that Congress gave the president broad power to go after terrorists and head off future threats at home or abroad. He likened Padilla to a "latter-day, citizen version of Mohammed Atta," the suspected ringleader of the Sept. 11 hijackings, who died in the 2001 attacks.

The justices heard back-to-back cases about the detentions of Padilla and Yaser Esam Hamdi, the U.S.-born son of a Saudi oil industry worker seized during fighting in Afghanistan more than two years ago.

"We could have people locked up all over the country tomorrow, with no opportunity to be heard. ... Congress didn't intend for widespread, indefinite detentions," Hamdi lawyer Frank Dunham told Justice Sandra O'Connor, who wondered whether the president was granted detention power when Congress approved the use of military force shortly after the Sept. 11, 2001 attacks.

"Nowhere does the (statute) have 'detention' in it," Dunham said.

Clement, arguing for the Bush administration in both cases, argued that a president as commander in chief has wide latitude to detain suspected terrorists as "enemy combatants" if they pose a national security risk.

"It has been well-established, and long established, that the government has the authority to hold unlawful enemy combatants ... in order to prevent them from returning to the field of battle," he said.

Hamdi was born in Louisiana while his Saudi father worked there, but grew up in the Middle East. Padilla is a convert to Islam who was raised in Chicago and spent time in prison.

Both are U.S. citizens.

The Bush administration says they also are "enemy combatants," dangerous enough to warrant open-ended military detention, perhaps for the duration of the open-ended war on terror.

The line for scarce seats in the courtroom to hear arguments began forming early Tuesday evening. Would-be spectators camped out in 40-degree weather, huddled in blankets and parkas.

Brian Swenson, 24, of Washington, said he came out to see "whether the Constitution can be manipulated."

"I'm sympathetic to Padilla," he said. "If you're locked up you ought to be given a trial."

The government is holding Hamdi and Padilla in near isolation at a Navy brig in South Carolina. Until recently neither had seen his lawyer or known that his case was before the Supreme Court.

Hamdi was captured weeks after the Sept. 11 attacks. The government says he was fighting with Taliban forces in Afghanistan, home base of the al-Qaida terrorist network, and calls him a classic battlefield detainee.

He initially was housed with hundreds of alleged foreign fighters at a Navy base in Guantanamo Bay, Cuba, but transferred to the United States when authorities verified his citizenship claim.

Padilla was arrested two years ago in Chicago on suspicion of plotting to detonate a radioactive bomb. He was first placed in custody of civilian authorities, but was transferred to military detention in June 2002.

In legal filings, the Bush administration said it has unilateral authority to order enemy combatant seizures and detentions, even inside the United States, but added that Congress also signed off on that course. Congress approved use of military force a week after the terrorist attacks of Sept. 11, 2001.

"Congress was acting in immediate response to attacks carried out within the nation's borders" when it voted to endorse broad White House authority to go after terrorists, administration lawyers argued in a court filing.

Lawyers for Padilla say Congress did no such thing and the White House has overstepped its authority.

"If the government's position were accepted, it would mean that for the foreseeable future, any citizen, anywhere, at any time, would be subject to indefinite military detention on the unilateral order of the president," their filing said.

The Bush administration won its arguments in lower courts in the Hamdi case, but lost a federal appeals court fight in the Padilla case.

The Hamdi and Padilla cases echo World War II-era cases about prisoners of war and war criminals, but also take the Supreme Court into uncharted waters. No one knows when the war on terror will end, and it is unclear if the justices will view it as a war at all.

The cases argued Wednesday are Hamdi v. Rumsfeld, 03-6696, and Rumsfeld v. Padilla, 03-1027.

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On the Net:

Supreme Court: http://www.supremecourtus.gov

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