Asharq-al Awsat  /  AP file
Yaser Esam Hamdi, in a file photo taken in June 2001.
msnbc.com news services
updated 1/9/2004 6:00:04 PM ET 2004-01-09T23:00:04

The Supreme Court said Friday that it would decide whether a U.S. citizen seized abroad and deemed an “enemy combatant” could be kept in a military jail in this country, a test case for President Bush’s war on terror.

Over the government’s objection, the court said it would hear an appeal challenging whether U.S. officials had the power to detain the man, Yaser Esam Hamdi, indefinitely in a Navy jail in Charleston, S.C., after his capture in Afghanistan in 2001.

Hamdi’s attorney, Frank Dunham, a public defender, said in the appeal that the constitutional right of due process prohibited Hamdi’s being held in “effectively incommunicado detention” without a hearing and without any charges.

Hamdi’s case tests the legal and constitutional rights of U.S. citizens captured in the war or terrorism and raises wider questions about the balance between security and liberty. It is the second major terrorism-related case the Supreme Court will hear this term.

The court will probably hear the case in April, with a ruling expected by July.

Setback for Bush
The court’s decision to review the case is another in a recent series of legal setbacks for the Bush administration in terrorism cases.

“The court has really drawn a line in the sand,” said Deborah Pearlstein, a lawyer and national security specialist at the Lawyers Committee for Human Rights, which has been a frequent Bush administration critic. “It is recognizing that, yes, the executive has some wartime powers, but they are not unlimited.”

There was no immediate comment from the Justice Department.

The administration had strongly urged the court to stay out of the Hamdi case or to shelve it pending an appeal in the similar case of another U.S.-born terrorism suspect. The administration won its argument in a lower court that Hamdi may be held indefinitely and without the usual legal rights due to U.S. citizens, and it wanted that ruling to stand.

Hamdi’s father filed a civil liberties challenge on his son’s behalf. Dunham, who has never met Hamdi, is pressing the case at the Supreme Court.

Dunham told the Supreme Court in his legal filing that the 4th U.S. Circuit Court of Appeals in Richmond, Va., wrongly bowed to government arguments about security.

The appeals court not only “embraced an unchecked executive power to indefinitely detain American citizens suspected of being affiliated with enemies, but it also abandoned procedural safeguards designed to promote truth and fairness,” Dunham said.

Road map to the Supreme Court

In response, the administration’s top Supreme Court lawyer called Hamdi a prime example of a dangerous terror suspect who should be locked up.

“Hamdi is a classic battlefield detainee — captured in Afghanistan, an area of active combat, with an enemy unit,” Solicitor General Theodore Olson told the court.

Despite that argument, the government recently agreed to allow Dunham to visit his would-be client. The government still contends that Hamdi is not constitutionally entitled to a lawyer, and that question will still be a part of the Supreme Court case.

Officials decided to grant access to a lawyer because Hamdi is a U.S. citizen and the military has finished interrogating him, the Defense Department said last month. Hamdi has not been charged.

The move was seen at the time as an attempt to blunt criticism of government anti-terror tactics and as a way to improve the government’s legal standing at the Supreme Court. The meeting has not yet taken place.

U.S. seeks delay
Earlier this week, Olson asked the justices to put off consideration of the Hamdi case, at least until the government finishes a hurry-up appeal in the similar case of Jose Padilla, a former gang member seized in Chicago in an alleged plot to detonate a radioactive “dirty bomb.” Padilla was declared an enemy combatant and, like Hamdi, was eventually transferred to the South Carolina naval brig.

The administration plans an appeal in the Padilla case by Jan. 20, and it had suggested that the justices consider the two cases together.

The court did not address that request in its brief order granting review in the Hamdi case. It is not clear now whether the court will also agree to hear the Padilla appeal when it comes. The two cases raise slightly different constitutional issues, because Hamdi was captured abroad and Padilla was picked up on U.S. soil.

The Associated Press and Reuters contributed to this report.

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