By Tom Curry National affairs writer
msnbc.com
updated 4/28/2004 4:52:24 PM ET 2004-04-28T20:52:24

In two hours of argument before the Supreme Court, lawyers for two American citizens now held by the U.S. military contended Wednesday that Congress never intended to give President Bush the power to hold without trial Americans who are deemed enemy combatants.

Federal public defender Frank Dunham, who represents Yaser Hamdi, and Stanford University Law Professor Jenny Martinez, speaking on behalf of Jose Padilla, both insisted to the justices that only Congress could authorize long-term detention of Americans who are fighting for the enemy.

They contended that in its Sept. 18, 2001, resolution authorizing Bush to use force against those who carried out the Sept. 11 attacks and to prevent future attacks, Congress did not give Bush the power to imprison Americans who might be working on the side of al-Qaida and the Taliban.

“Nowhere does the (use-of-force resolution) have 'detention' in it," Dunham said, adding that his client has “never had an opportunity to assert a claim of innocence” in a hearing before a neutral judge.

Padilla arrested in 2002, Hamdi in 2001
Padilla was arrested in 2002 at O’Hare Airport in Chicago and Hamdi was captured in 2001 on the battlefield in Afghanistan.

The Bush administration is relying on the precedent established by Ex parte Quirin, a 1942 case involving Nazi saboteurs who landed in the United States from submarines, to try to convince the justices that Padilla and Hamdi should remain in Navy brigs and not be permitted to go before a judge to challenge the evidence the government has used to justify their detention. Two of the Nazi saboteurs were American citizens.

Video: “If there is a need in this country for preventive detention of terrorists, that is a legislative job for our legislature to take,” Martinez argued. Later she added, “there is no indication that Congress … thought they were authorizing indefinite military detention without trial of American citizens on American soil.”

But Justice Anthony Kennedy replied that “declarations of war are just not written this way. ... That is not the tradition. The president is given the authority.” Kennedy seemed to suggest that the president's authority to wage war implied the power to keep enemy combatants locked up, even if they were American citizens.

Justice Stephen Breyer suggested that departing from the usual procedure in using the criminal courts might be necessary “for an unusually good reason” such as the possibility of turning loose a terrorist suspect who is “a ticking time bomb.”

Earlier, in questioning Deputy Solicitor General Paul Clement, Breyer cited the phrase in the congressional resolution allowing Bush to use “necessary and appropriate” measures to fight terrorists. He asked Clement whether it was really “necessary and appropriate” to hold Padilla and Hamdi without trial.

What's wrong with regular courts?
Why, he wondered, could they not be handled through ordinary criminal court actions?

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Padilla “according to the government, has committed a serious crime and he’s dangerous. Well, those are people we deal with all the time in the criminal process,” Breyer pointed out.

Clement replied that Congress had authorized the use of military force and had not written “an invitation for judicial management of the executive’s war-making power.”

And Clement asserted that Padilla “has a wealth of information that could be used to prevent future attacks” so “the military ought to have the option of proceeding with him in a way that allows them to get actionable intelligence to prevent future terrorist attacks.”

Martinez pointed out that Great Britain and Israel had enacted statutes to protect the rights of long-term detainees accused or suspected, but not convicted, of terrorism.

“This is quintessentially a question for Congress,” Martinez insisted.

Justice Sandra Day O’Connor seemed skeptical of Martinez’s argument, saying that expecting Congress to enact laws similar to those in Israel and Britain “would be, of course, perhaps desirable. But we’re faced with a situation of the here and now. Just turn loose a ticking time-bomb?”

No doubts that Congress would act
Martinez said, “Were this court to rule that congressional action was required I have no doubt that Congress would step into the breach very quickly to provide what authority the executive branch deemed necessary.”

Road map to the Supreme Court

Clement compared Padilla to a "latter-day, citizen version of Mohammed Atta," the accused ringleader of the Sept. 11 hijackings, who flew a plane into one of the World Trade Center towers, killing thousands of people.

Justice Antonin Scalia wondered what the boundaries were of the president’s power as commander in chief, saying that while the president has the power to deploy and maneuver military units, “it doesn’t mean he has the power to do whatever it takes to win the war. The steel seizure case demonstrates that well enough.” In that 1952 case, the court ruled that President Truman did not have the power to seize steel mills during the Korean War, when a strike interrupted the flow of war materiel. 

Both Justice O’Connor and Justice David Souter sounded especially worried about the open-ended nature of the detention of Padilla and Hamdi.

With an alarmed tone in her voice, O’Connor asked Clement, “Have we ever had a situation like this where we had a war-like status that could last 25 years, 50 years, whatever it is?”

And Justice Ruth Bader Ginsburg expressed deep concern about how far the Bush administration could push its power if the Court did not intervene.

“If the law is what the executive says it is, whatever is ‘necessary and appropriate’ in the executive’s judgment … it leaves it up the executive, unchecked by the judiciary, so what is it that would be a check against torture?”

Military regulations cited
Clement replied that U.S. laws and military regulations would prevent U.S. military officials from committing war crimes or using torture in interrogating suspects such as Padilla and Hamdi.

“Suppose the executive says mild torture is what we think will get information?” wondered Ginsburg. “Is it just up to the good will of the executive or is there any judicial check?”

In the Hamdi case, Scalia pointed out to Dunham the difficulty of gathering evidence that might prove he is not a Taliban soldier as the Bush administration contends he is.

Hamdi was captured more than two years ago and the Northern Alliance troops who captured him may not be available for interviews.

Breyer pressed Clement for some kind of guidance on how Hamdi might have a hearing before a neutral fact finder. Telling Clement to give him “something that’s practical … I want a practical answer.”

The Bush administration says that it decided to hold Padilla and Hamdi as enemy combatants beyond the reach of civilian courts only after "a careful, thorough, and deliberative process consisting of several layers of review" by Justice Department, Defense Department and CIA officials.

If the Bush administration loses the cases, it could hinder investigations of al-Qaida plots; but if it wins, the president will have been given extraordinary power over American citizens.

Georgetown Law School professor David Cole, author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism," who was in the courtroom Wednesday, said the justices "seemed concerned by the unlimited character of the government's asserted power to hold U.S. citizens indefinitely without any charges or hearing whatsoever. On the other hand, they seemed concerned about not interfering with battlefield decisions of the commander-in-chief."

Cole added, "I think there might well be a majority for the view that Hamdi and Padilla must be afforded some sort of hearing on their claims of innocence — the hearing might well be before a military commission, but there was substantial concern that at a minimum the detainees must be afforded an opportunity to be heard."

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