The Supreme Court gave a skeptical hearing Wednesday to the Bush administration’s claim that the president and his military commanders may hold American citizens indefinitely, and without a hearing, during the war on terrorism.
The cases of two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, who have been deemed “enemy combatants” and are being held at a military jail in South Carolina pose the starkest test yet of how the war on terrorism could rewrite America’s legal rules.
Civil libertarians describe as unprecedented the administration’s claim that the president can order American citizens picked up on American soil to be locked away with no right to challenge their detention.
But the administration’s lawyer said that a “ticking time bomb” in the form of a suspected terrorist need not be set free simply because the government did not yet have enough evidence to charge him with a crime.
During Wednesday’s hearing, however, most of the justices said the law almost always required that an imprisoned person be given a hearing at some point to plead his innocence. Although enemy soldiers can be captured on the battlefield and held for the duration of the war, the Geneva Convention mandates that the military give them a brief hearing to make sure that they are indeed enemy soldiers.
By contrast, the administration has maintained that “unlawful enemy combatants” -- captured either overseas or in the United States -- may be held in isolation and indefinitely in a military jail without a chance to speak to a lawyer or to appear before even a military judge.
That seemed to go too far for most of the justices.
Justice Ruth Bader Ginsburg asked: “The person who is locked up -- doesn’t he have a right to bring before some tribunal himself [in] his own words” to plead his innocence?
He has “had an opportunity to explain it in his own words during interrogation,” replied Deputy Solicitor Gen. Paul D. Clement, representing the administration.
“How about to a neutral decision-maker of some kind, perhaps in the military? Is that so extreme?” asked Justice Sandra Day O’Connor.
Maybe not, Clement said, adding that in the future, the government might set up a system of military tribunals.
When, O’Connor asked.
“We don’t know for sure,” Clement replied.
Last week, the justices criticized the administration’s refusal to give hearings to the more than 600 foreigners who were picked up overseas and are imprisoned at the U.S. naval base at Guantanamo Bay, Cuba. The families of some of those men contended that they were neither terrorists nor Taliban fighters and had been given no chance to assert their innocence.
On Wednesday, the justices heard challenges brought on behalf of two U.S. citizens: Hamdi, a Saudi born in Louisiana and captured in Afghanistan in November 2001 by U.S. troops who said he was carrying a rifle and fighting for the Taliban; and Padilla, a convert to Islam, born in the Bronx, who was arrested in May 2002 at Chicago’s O’Hare airport after a flight from Pakistan on suspicion of plotting with Al Qaeda to explode a radioactive “dirty” bomb. Neither man has appeared before a judge or been charged with any crime.
Clement stressed that the war on terrorism was unlike past wars and called for giving the president even greater powers. The United States is not doing battle with another nation, its troops are not fighting a traditional army and the terrorists are secretive and seek to blend into the civilian population, administration officials have contended.
For those reasons, they have argued, it is more important that the government have a free hand to hold and interrogate suspected terrorists rather than prosecute them for a crime.
Several justices said they agreed that a national emergency called for giving greater powers to the executive branch, but they also questioned how long the government needed to hold a suspect incommunicado.
“Can you give me any ideas of the outer bounds of how long the detention would take?” asked Justice Anthony M. Kennedy.
“I’m not sure I can give you the outer bounds,” Clement replied.
The Sept. 11 attacks were an extraordinary event, agreed Justice David H. Souter, “but it’s 2 1/2 years later.” Isn’t it time to give hearings to suspects like Hamdi or Padilla? he asked.
Not yet, Clement said, noting that “10,000 United States troops remain on the battlefield in Afghanistan.”
Throughout the two-hour argument, Clement, a former clerk to Justice Antonin Scalia, held to a firm line: The president had the constitutional authority as commander in chief. During wartime, he said, the courts had no business “micromanaging” the administration’s handling of those captured in battle.
At one point, his argument seemed to go too far even for Scalia, usually a steadfast supporter of presidential power.
“I understand the commander-in-chief power to be a power over the military forces, when they’re being used as military forces, the Gen. Washington power, you know, to command the forces tactically,” Scalia said. “It doesn’t mean that he had the power to do whatever it takes to win the war. The ‘steel seizure’ case demonstrates that well enough.”
He was referring to a 1953 Supreme Court ruling that rebuked President Harry S. Truman for ordering the military to seize and operate the nation’s steel mills during the Korean War. Truman’s move was triggered by a strike by workers, and the justices stressed that the president’s power over the troops abroad did not extend to running affairs on the home front.
The lawyers challenging the administration cited that case as an important check on the president’s powers. They also argued that at the time of the American Revolution, the colonists rebelled in part because the British military claimed the power to arrest and hold Americans without due process of law.
The “historical core of the habeas corpus” is that all jailed persons have a right to go before a judge to contest their detention, said Hamdi’s lawyer, Frank W. Dunham Jr. of Alexandria, Va. “I would urge the court not to go down that road” of allowing the executive branch to give itself the power to detain citizens without hearings, he said.
When pressed, Dunham agreed that Hamdi did not necessarily need a full-fledged trial before a federal judge, and that a hearing before a military judge instead “would go a long way toward” giving his client what he sought.
During the second hour, the administration’s lawyer urged the justices to reverse a ruling by the U.S. Appeals Court in New York saying Padilla must be either charged with a crime or released.
But Clement focused mostly on a procedural flaw in the case. He said Padilla’s New York lawyer should have filed her writ of habeas corpus in South Carolina, where he is being held now, rather than in New York, where he was held initially.
Padilla’s suit was lodged against Defense Secretary Donald H. Rumsfeld because he is the civilian chief of the military. Clement said it should have been filed against Padilla’s “immediate custodian,” the commandant of the brig in Charleston, S.C.
Stanford University law professor Jennifer Martinez, representing Padilla, urged the court to check the president’s power. “Never before in our nation’s history has this court granted the president a blank check to do whatever he wants to American citizens,” she said.
She also cited a 1971 law prohibiting the government from detaining Americans without due process. It was enacted to prevent a recurrence similar to the internment of Japanese Americans during World War II. President Franklin D. Roosevelt had ordered the internment as a military measure, without seeking the approval of Congress.
American history and the Constitution call for the court to stand fast against “the possibility that an unchecked executive using excuses based on national security ... [could] render military power superior to civilian authorities,” she said.
The court has until late June to issue decisions in the cases, Hamdi vs. Rumsfeld and Rumsfeld vs. Padilla.