High court accepts case on detention of US citizens

By Lyle Denniston
Globe Correspondent / January 10, 2004

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WASHINGTON -- The Supreme Court yesterday agreed to examine the indefinite detention of US citizens who have been designated "enemy combatants," marking the court's most significant step into the constitutional questions surrounding the war on terrorism.

The case, involving the detention of Yaser Esam Hamdi, challenges the most sweeping authority President Bush has claimed in responding to the attacks of Sept. 11, 2001, and presents the Supreme Court with a chance to decide the extent of presidential power in an undeclared war. Congress has not taken the formal step of declaring war on Al Qaeda and other terrorists.

The appeal filed on behalf of Hamdi, a US citizen who grew up in Saudi Arabia and was captured in Afghanistan late in 2001, challenges his detention without charges in a Navy brig. The lawyer handling his appeal, public defender Frank Dunham Jr., called the case "an important one for the nation, and for the courts." The Justice Department vowed to "vigorously defend the president's authority to capture and detain enemy combatants. This authority is crucial in times of war." The purpose of such detention, according to department spokeswoman Monica Goodling, "is to prevent enemy combatants from continuing to aid those who would seek to injure our people, as well as to gather intelligence to thwart further terrorist assaults."

The justices' review will require an interpretation of how much power Congress granted to the president in its terrorism resolution passed in the immediate wake of the 2001 attacks, and it will sort out how far federal courts can go to review presidential and congressional actions to deal with this new form of warfare.

Cases growing out of the war on terrorism have been arriving at the Supreme Court over the past year, but the justices have passed up most of them, often for procedural reasons. In November they agreed to rule on the first such case, a test of whether hundreds of foreign nationals now being held at the US Naval Base at Guantanamo Bay, Cuba, have a right to challenge their detentions in US courts. No US citizens are held at Guantanamo.

Dunham argued in his filing that a federal appeals court that dismissed a challenge to Hamdi's detention "embraced an unchecked executive power to indefinitely detain American citizens suspected of being affiliated with enemies and abandoned procedural safeguards designed to promote truth and fairness."

The Bush administration's position -- that the president can declare individuals to be enemy combatants and detain them indefinitely -- relies on several World War II-era precedents from the Supreme Court. The justices will have to decide whether the government has the same sweeping authority when military action does not involve a war formally declared by Congress as when it does.

The Supreme Court may decide to hear a closely related case involving another US citizen declared an enemy combatant, Jose Padilla, who is suspected of plotting with Al Qaeda to detonate a radioactive "dirty bomb."

Although the Justic Department recommended that the Supreme Court not review Hamdi's case, the justices voted to accept it, also rejecting another department request to wait until Jan. 20, when it plans to appeal the Padilla case. That signaled the importance the court attaches to the constitutional dispute. Hamdi was labeled an "enemy combatant" on Bush's orders after he was captured along with a Taliban military unit by allied forces in Afghanistan after Bush ordered US combat troops in October 2001 to root out Al Qaeda forces there. He was held for a time along with other terrorism suspects at the US Navy base at Guantanamo.

After Hamdi was found to be a citizen because of his birth in Louisiana, he was transferred to a Navy brig in April 2002 -- first to one in Norfolk, Va., then to another in Charleston, S.C. He has been denied contact with a lawyer and access to the courts, and permitted only written contact with his family. His father challenged the detention.

The Pentagon only recently decided to allow Hamdi access to a lawyer, but he apparently has not seen one yet.

The US Court of Appeals for the Fourth Circuit, based in Richmond, last January threw out the constitutional challenge to Hamdi's detention, concluding that the judiciary has a limited role in reviewing the president's handling of a combatant captured on a foreign battlefield.

The government branches "most accountable to the people" -- Congress and the presidency -- "should be the ones to undertake the ultimate protection and to ask the ultimate sacrifice from them" in war, the appeals court said.

The Fourth Circuit also ruled that "the designation of Hamdi as an enemy combatant bears the closest imaginable connection to the president's constitutional responsibilities during the actual conduct of hostilities."

In the Padilla case, the US Court of Appeals for the Second Circuit, based in New York, held in December that the president does not have the authority to order the detention of a US citizen who has been designated an enemy combatant and arrested in this country.

That appeals court ordered Padilla's release within 30 days, but the Justice Department will ask that the order be delayed pending the outcome of its appeal.

The justices are likely to hear Hamdi and Guantanamo cases in April, with final decisions by early next summer. If they decide to hear the Padilla case, it would likely follow a similar timetable.