- The Washington Times - Monday, April 19, 2004

A series of cases coming before the Supreme Court by month’s end stand to have a dramatic effect on how the United States can treat individuals detained in the war on terrorism.

The cases revolve around two central questions: Can an administration detain U.S. citizens indefinitely without access to lawyers or the courts, and should noncitizens arrested abroad be allowed to petition U.S. courts for judicial review of their detention?

Today, the court will hear consolidated appeals brought by current and former prisoners — designated as “enemy combatants” by President Bush — at the U.S. Naval Base Guantanamo Bay, Cuba. The cases of two other enemy combatants, both U.S. citizens, will be weighed April 28.

“These cases are tied together in that they represent a rare referendum on the scope of executive power,” said Elisa Massimino, Washington director of the national lawyers group Human Rights First. “Their proximity to the election makes them even more important.”

The Guantanamo case challenges the administration’s view that the massive prison built on the naval base since September 11 is not on U.S. soil and, therefore, is outside the jurisdiction of U.S. courts.



Detained at the prison are about 600 combatants, mainly captured in Afghanistan during the U.S.-led drive to topple that country’s Taliban regime, which had harbored Osama bin Laden and his al Qaeda terror group.

The case before the Supreme Court arose from federal lawsuits that families of Australians, Britons and Kuwaitis at Guantanamo filed against the Bush administration, seeking legal due-process rights, such as habeas corpus hearings.

But the court agreed with the administration, saying it lacked authority over the case on grounds that Guantanamo is outside U.S. territory. A federal appeals court upheld the ruling and the Supreme Court is expected to hand down its decision this summer.

In court papers, the administration argues against giving lower courts authority to determine the status of “aliens held at Guantanamo,” saying that doing so “would place the federal courts in the unprecedented position of micromanaging the Executive’s handling of captured enemy combatants from a distant combat zone.”

Solicitor General Theodore B. Olson also argued in the administration’s briefs that judicial review would “strike a serious blow to the military’s intelligence-gathering operations at Guantanamo.”

Lawyers for the detainees disagree.

“If the Supreme Court was to rule that there was authority for lower courts to examine the government’s actions, it would not interfere with the war on terror,” said Kristine A. Huskey, a Washington lawyer hired by the families of 12 Kuwaitis at Guantanamo. “All we ask for is that some process is put in place to determine the real terrorists from innocent civilians.”

Mrs. Huskey said impartial hearings, which she maintains are required by U.S. military regulations, would show that the Kuwaiti detainees were involved in legitimate humanitarian work at the time of their arrest in Afghanistan and were “basically kidnapped” and handed over to U.S. troops.

The two other cases before the court involve men not held at Guantanamo. Yaser Esam Hamdi was captured in Afghanistan in November 2001, and Jose Padilla was arrested in Chicago in 2002 in a suspected “dirty bomb” scheme.

Neither man has been charged and only recently were they allowed lawyer visits. Their cases focus mainly on whether the president has authority to treat U.S. citizens as enemy combatants.

Mr. Hamdi, who is of Saudi Arabian descent, is represented by Virginia federal public defender Frank Dunham, who filed a petition for habeas corpus on Mr. Hamdi’s behalf. In January 2003, a federal appeals court ruled that the administration could detain Mr. Hamdi as an enemy combatant.

The central issue before the Supreme Court, according to Mr. Dunham, is “whether the executive can lock up a citizen and avoid any judicial review of what he’s done and the guy just sits there in jail forever.”

The Padilla case is similar, with the major difference being that he was arrested in the United States. Federal authorities believe Padilla, a former Chicago gang member and a convert to Islam, intended to detonate so-called “dirty bombs,” radiological-dispersion devices, at a number of targets, including government buildings in Washington.

The Supreme Court is expected to rule on both the Hamdi and Padilla cases in July.

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