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U.S. detention tests scope of anti-terror law
Justices take up cases of 2 citizens held 2 years; No charges; legal aid delayed; Unbridled authority vs. rights of Americans
By Laura Sullivan
Several Supreme Court justices questioned yesterday whether President Bush has the unbridled authority he has claimed to detain two U.S. citizens indefinitely as enemy combatants in the war on terrorism.
The two cases, which the court heard back-to-back yesterday, are of Yaser Esam Hamdi, who was seized in Afghanistan, and Jose Padilla, who was arrested at an airport in Chicago. Both are American citizens who have been held for more than two years without charges and, until recently, had been denied access to lawyers.
Hamdi's lawyer, Frank W. Dunham Jr., told the court: "We have never authorized detention of a citizen in this country without giving him an opportunity to be heard, to say, 'Hey, I am an innocent person.' "
But some justices seemed to accept the notion that the president is broadly empowered to protect the country against terrorism. They appeared open to the government's argument that courtrooms cannot be set up on battlefields to weigh the rights of suspected terrorists.
"It has been well established and long established that the government has the authority to hold both unlawful enemy combatants and lawful prisoners of war captured on the battlefield," said Paul D. Clement, the deputy solicitor general. "No principle of the law or logic requires the United States to release an individual from detention so that he can rejoin the battle."
Hamdi, who grew up in Saudi Arabia but was born in Louisiana, was accused of fighting alongside the Taliban in Afghanistan in 2001. Padilla, who grew up in Chicago and converted to Islam, was accused of plotting to set off a radioactive "dirty bomb." He was taken into custody not on the battlefield but at O'Hare International Airport in Chicago in May 2002.
The two cases embody some of the most significant constitutional issues to emerge from the war on terror. The justices are being asked to weigh the value of individual rights, rooted in bedrock American principles, against national security, a lack of which could raise the risk of another devastating terrorist attack.
Despite the justices' tough questioning of the government, there is no way to determine how they will rule. Decisions in both cases are expected before the court's summer break.
The two cases stem from split rulings in lower courts over whether U.S. citizenship guarantees the right to challenge detention imposed by the executive branch. The U.S. Court of Appeals for the 4th Circuit in Richmond, Va., sided with the president in Hamdi's case. But the U.S. Court of Appeals for the 2nd Circuit in New York ruled in favor of Padilla.
In both cases, government lawyers argued that the courts lacked authority to weigh in on either man's plight. U.S. citizenship, they argued, was irrelevant after the president had deemed the men "enemy combatants."
Dunham sought to establish that the term "enemy combatant" has no legal relevance. "We don't find it defined in any case, we don't find it defined in any statute, and it hasn't been defined by regulation or by anything that's been filed in this case," Dunham said.
But Justice Antonin Scalia cut him off.
"It's an English word -- it means somebody who is combating," Justice Scalia said. "I mean, do we have to quibble about the word?"
Scalia said Dunham could not possibly be suggesting that "every captured enemy in a war" could challenge his detention in the court system.
"Or would you?" Scalia said.
"No," Dunham replied. "But there's a different legal status of a U.S. citizen from an enemy alien captured on a battlefield."
Justice Anthony M. Kennedy then asked, "Are we supposed to send a Gulfstream over [to collect] 10 people who witnessed the capture?"
Dunham stood his ground. "We have fax machines, we have phones that have pictures, you can get depositions," he said.
Some of the justices seemed to find the government's assertion of power troubling. Trying to establish, in the Padilla hearing, how far the president's authority could go, Kennedy asked Clement whether the president could also punish an enemy combatant.
"Certainly we could punish him," Clement said.
"Could you shoot him?" Kennedy asked.
No, Clement said, not after the combatant had been removed from the battlefield.
Justice Ruth Bader Ginsburg wondered from where such a restriction was derived.
"If the law is what the executive says it is," she said, "what is it that would be a check against torture?"
Ginsburg asked, "Suppose the executive says mild torture is OK. ... What's constraining" the president from using such a method? "Is it just up to the good will of the executive?"
Clement responded that just because there is potential for such executive authority to be abused does not mean the judicial branch should "micromanage" the executive branch and curb its authority. He argued that the Supreme Court has previously recognized broad presidential authority to fight wartime enemies and that Congress has bolstered that authority during the war on terror.
Several justices also questioned whether the government had the power to strip citizens of the ability to proclaim their innocence. Hamdi and Padilla have been barred from contesting their designation as enemy combatants.
Clement acknowledged that the government would at some point likely hold a hearing where the prisoner could challenge his detention. But several justices returned to a similar point: How long could the government hold enemy combatants in a war that has no obvious end?
Justice Sandra Day O'Connor asked, "Have we ever had a situation like this where a war-like state could last 25 years? 50 years?"
Any length of time is too long for American citizens to be held incommunicado by their own government, Dunham argued. Hamdi "hasn't been able to look at the facts that have been alleged against him and give any kind of an explanation as to his side of the story, which may well turn out to be true," he said.
Padilla's attorney, Jennifer Martinez, similarly asserted that the government's position gives the president "unlimited power to imprison any American anywhere at any time without trial simply by labeling him an enemy combatant."
Some justices, though, seemed to find such statements too sweeping, suggesting that the government should be granted deference to properly fight a war. They questioned how enemy combatants could expect legal protections for actions committed during warfare, where presumably few witnesses or evidence would emerge.
When asked why the government chose to label Padilla and Hamdi enemy combatants while sending another American, John Walker Lindh, like Hamdi captured on an Afghan battlefield, to court, Clement said the decision came down to "prosecutorial and executive discretion" and whether the individuals had any intelligence value.
While many of the same threads of debate surfaced in both hearings, half of the Padilla hearing centered on procedural questions, such as whether the case had been heard by the appropriate appellate court. The question of venue could give the court an opportunity to send the case back to the lower courts without addressing issues of executive power and citizen rights.
Clement favored that notion, saying that because Padilla is being held in South Carolina, his case should have been brought through the 4th Circuit, rather than the 2nd Circuit in New York, which ruled against the government.
Arguing for Padilla, Martinez said it was the government that chose New York as a venue, having flown Padilla there from Chicago after his arrest. Government lawyers cannot, she argued, decide after the fact that they prefer a more favorable location.
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When a statute, code, or court holding changes tomorrow, does reality change? Does truth change? Does right and wrong change?
If so, there are no absolutes, and the only logical conclusion is that reality, truth, and right and wrong are determined arbitrarily on a daily basis by those with the most power, guns, and money, and the rest of us can choose to run, fight, or be their slaves.
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