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Bush administration defends detainee policy

'Enemy combatant' review unnecessary, Supreme Court told

WASHINGTON -- The Bush administration yesterday mounted its first full defense in the Supreme Court of presidential power to order the capture and long-term detention of "enemy combatants" during the war on terrorism.

The justices should not even get involved in any review of that power, because there is no constitutional doubt about it, the Justice Department argued in a lengthy legal brief.

The document was filed in the case of a US citizen, Yaser Esam Hamdi, who has been detained for two years by the US military since being picked up in Afghanistan.

Because Hamdi was denied access to the legal process, his father, Esam Fouad Hamdi, appealed the detention on his son's behalf. The Supreme Court is expected to decide whether to take the case next month. The brief mentions, in a footnote, that the Defense Department has now decided to allow Hamdi access to a lawyer, but it contends that it was granted not because he had a right to it, but "as a matter of discretion and military policy."

The Pentagon last night announced that Australian David Hicks, who is being held as a terrorist suspect at Guantanamo Bay, Cuba, would be given access to a US military lawyer. Hicks is one of six prisoners at the Navy base that the Bush administration has targeted for a possible military tribunal.

On the broader aspects of Hamdi's detention, the document, signed by US Solicitor General Theodore B. Olson, told the court:

"The military detention in this case is consistent with this court's precedents recognizing the president's authority to capture and detain combatants in wartime, Congress's express statutory backing of the president's use of all necessary and appropriate military force in connection with the current conflict, and the time-honored laws and customs of war."

The precedents cited in the brief are from World War II, an officially declared war against other nations. The administration, however, has repeatedly argued that the war on terrorism is the same thing, even though it is against a global threat, not another nation, and even though Congress has not used its constitutional power to formally declare war.

"The Constitution vests the political branches and, in particular, the president, as commander in chief, with broad authority to wage war," Olson contended. "It is well-settled that the president's war powers include the authority to capture and detain enemy combatants at least for the duration of a conflict."

Hamdi and others declared to be "enemy combatants" have no guarantee that they will be released at any specific point, since the government says the war on terrorism will have no identifiable end.

Hamdi, who grew up in Saudi Arabia, is a US citizen because he was born in Louisiana. But the Justice Department said that "does not affect the military's settled authority to detain him once it has determined that he is an enemy combatant."

"The practice of capturing and detaining enemy combatants is as old as war itself," the brief states. "The detention of captured enemy combatants serves the vital war objectives of preventing the combatant from rejoining the enemy and continuing to fight and enabling the collection of intelligence about the enemy."

Hamdi has been questioned by military interrogators -- first in Afghanistan, then at the US detention camp in Guantanamo Bay, and for the past 19 months in Navy brigs in Virginia and South Carolina. He has not been charged with any crime. He has had only one visitor, a Red Cross representative.

The appeal by Hamdi's father argues that the case "presents fundamental questions about the right of American citizens to be free from indefinite detention by the government without charge or trial . . . " A lower court ruling upholding his detention, the appeal said, "embraced an unchecked executive power to indefinitely detain American citizens suspected of being affiliated with enemies."

The justices already have agreed to hear another similar case -- an attempt by 16 foreign nationals being held at Guantanamo to get access to US courts to challenge their detention.

That case, as it stands now, is confined to an issue of court authority, not presidential power, and thus did not call for a defense of the authority President Bush has employed in the war on terrorism.

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