High court to hear case of U.S. enemy combatant

Justices could revoke anti-terrorism powers championed by Bush

January 10, 2004|By Jan Crawford Greenburg | Jan Crawford Greenburg,CHICAGO TRIBUNE

WASHINGTON - Taking up what could be the most significant wartime civil liberties case since World War II, the Supreme Court announced yesterday that it would decide whether the government can indefinitely detain U.S. citizens it labels "enemy combatants" without giving them access to a lawyer or charging them with a crime.

Setting up a potential showdown with the Bush administration over its tactics in fighting the war on terrorism, the court said it would decide by July whether the government could keep American Yasser Hamdi in custody as an enemy combatant after his 2001 capture on the battlefield in Afghanistan. A Virginia-based federal appeals court has upheld Hamdi's detention.

Of all the Bush administration's polices adopted after the Sept. 11, 2001 attacks, its designation of two American citizens as enemy combatants, Hamdi and Jose Padilla, has produced the most legal controversy.

The administration has insisted it has the constitutional authority to wage war as it sees fit and said it must be able to indefinitely hold people such as Hamdi and Padilla to protect the nation from attack.

But civil liberties groups, as well as some retired military officers and prosecutors, have sharply criticized that view, arguing that the White House is employing extraordinary unchecked power far beyond what the Constitution permits.

The Supreme Court's decision to take up the enemy combatant issue gives the justices an opportunity to create a new area of constitutional law, and possibly rewrite the rules of war.

Taken with another terrorism-related case involving foreigners being held at a U.S. military base in Cuba, the court is poised to make its most significant statement on civil liberties in a time of war since ruling on the legality of interning Japanese-Americans in the 1940s.

"These will be the most important wartime cases the court has decided since World War II," said Deborah Pearlstein, director of the U.S. Law and Security Program of the Lawyers Committee for Human Rights. "I don't think it's possible to overstate the historical significance."

In agreeing to hear Hamdi's appeal, the justices rejected a request by the administration to stay out of the case or delay consideration of it. Early this week, the Justice Department urged the court to hold off on Hamdi's case until it had decided whether to intervene in the case of Padilla, an American designated an enemy combatant after his arrest in 2002 in Chicago.

Officials say Padilla conspired with al-Qaida terrorists to detonate a radioactive "dirty bomb" in the United States, and he has been held in a U.S. naval brig without being charged and without access to a lawyer or family members for 19 months. A New York-based federal appeals court ruled last month that the administration lacked the authority to detain him.

The Justice Department said this week that it would file papers by Jan. 20 urging the court to reverse the appeals court decision on Padilla. It said it would also ask the court to decide the issue on an expedited basis this term, with arguments in April and a decision by the end of June.

Lawyers on both sides say they expect the justices to consider Padilla's case in conjunction with Hamdi's. Although the cases raise similar constitutional issues, Padilla's situation is slightly different because he was arrested on American soil. Hamdi was captured by Northern Alliance forces and later found to have been born in the United States.

In taking up the enemy combatant issue, the justices have set the course for what could be a conflict with the administration, which has strongly defended the detentions as critical in waging a new kind of war.

"In the past there have not been a lot of rules in this area, because courts have said it's up to the president and the Congress how to conduct wars," said John Yoo, a former Justice Department official who helped craft the administration's terrorism policies. "But they're sailing toward a potential confrontation with the executive branch during war."

Yoo, who teaches law at the University of California, Berkeley, said he was not surprised that the justices agreed to hear Hamdi's case, particularly after they announced they would hear a legal challenge on behalf of 16 foreigners arrested in the war in Afghanistan and held with about 600 others at the U.S. naval base at Guantanamo Bay, Cuba.

Lawyers for those men argue that U.S. courts should decide whether the government can hold them indefinitely without charging them or giving them access to a lawyer.

The Chicago Tribune is a Tribune Publishing newspaper.

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