President Bush has violated the constitutional rights of two U.S. citizens by holding them as “enemy combatants” in the war on terror rather than prosecuting them in criminal court, their lawyers told the Supreme Court yesterday.
The cases of Yaser Esam Hamdi, captured in Afghanistan in 2001, and Jose Padilla, arrested in Chicago on suspicion of involvement in a ’dirty bomb’ plot in 2002, offer the high court a chance to weigh the balance between national security and civil liberties, the lawyers said.
“We’re talking about the ongoing detention of someone for two years,” said Jennifer Martinez, who is representing Padilla. Such imprisonment without charges is “simply not consistent with our nation’s constitutional tradition.”
The administration says its handling of the two men is justified, because a bill passed unanimously by Congress shortly after the September 11 attacks authorizes the president to “use all necessary and appropriate force” to prevent attacks.
Paul D. Clement, U.S. deputy solicitor general, said it has been “long established that the government has the authority to hold unlawful enemy combatants” to ensure that they do not return to the battlefield to fight against America.
Further, he stressed the need to hold all enemy combatants, U.S. citizens or not, so that they can be interrogated “to get intelligence that prevents future attacks.”
The justices raised questions about how the enemy-combatant classification has been used since September 11, 2001, and several appeared to take particular interest in how long the administration would hold the combatants, and when, if ever, the war on terror will be declared over.
“But have we ever had a situation like this, where presumably this warlike status could last for 25 years, 50 years, whatever it is?” asked Justice Sandra Day O’Connor.
Justice David H. Souter said it sounded as if the administration was saying: “Don’t worry about the timing question. We’ll tell you when it’s over.”
His comment came after Mr. Clement told the court that “with respect to al Qaeda and hard-core al Qaeda operatives, the end of the war is hard to perceive.”
Frank W. Dunham, who is representing Hamdi, appeared to agree that the president has the right to detain or kill enemy combatants. But he told the justices that the stakes are different when the enemy turns out to be an American citizen.
“When it comes to U.S. citizens … you prosecute them like was done with John Walker Lindh,” said Mr. Dunham, referring to the only other known American arrested in Afghanistan. Lindh is serving a 20-year sentence after reaching a plea agreement in federal criminal court.
U.S. authorities have known for nearly two years that Hamdi was an American, although, unlike with Lindh, they have chosen not to file charges against him. Hamdi, who was raised in Saudi Arabia, was born in Louisiana during a trip his parents made there in the late 1970s.
His case made it to the Supreme Court after lower courts denied Mr. Dunham’s attempts to file a petition for habeas corpus on his client’s behalf. The Padilla case is similar, with the central difference being that he was arrested in the United States.
Federal authorities think that Padilla, a former Chicago gang member and a convert to Islam, had strong ties to terror network al Qaeda and intended to detonate a radiological dispersion device at buildings in Washington.
After much legal wrangling last year, a federal appeals court ruled that the president lacked authority to hold Padilla as a combatant and gave the government 30 days to release him. The order was delayed pending action by the Supreme Court.
Both men are being held indefinitely at a Navy brig in South Carolina.
The Supreme Court is expected to rule on the cases by July, around the time it rules on the effort by foreign enemy combatants held at the U.S. Naval Base Guantanamo Bay, Cuba, to access U.S. courts. It heard those cases last week.
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