The Supreme Court agreed Friday to rule on the most far-reaching claim of presidential power in the new war on terror: whether American citizens can be arrested and held by the military without charges on order of the president alone.
The case, to be heard in April, ultimately tests whether the war on terrorism is a true war and one that extends across the nation as well as to battlefields abroad.
In November 2001, shortly after the Al Qaeda attacks on New York and Washington, President Bush issued an executive order announcing that he planned to hold military trials for “noncitizens” who were arrested in the war on terrorism. The plan was widely criticized by civil libertarians, and the proposed trials have yet to take place.
Six months later, however, the president’s lawyers asserted a far broader claim of executive power. They said the military, on the president’s order, could arrest and hold in secret U.S. citizens who were deemed be “unlawful enemy combatants.” The administration’s lawyers said these people had no right to speak to a lawyer or their families. Moreover, they had no right to contest the charges against them in court.
Unlike prisoners of war, these “unlawful combatants” had no rights under the Geneva Convention to a military hearing to argue they were not, in fact, enemy soldiers. And they were outside the protections of American law, and therefore, judges had no authority to second-guess the president’s decision.
While asserting this broad authority, the administration has used it sparingly.
Only three men, all Muslims, have been publicly identified as “enemy combatants,” and only two have had their legal claims heard in federal court.
The first, Yaser Esam Hamdi, is a Saudi national who was fighting for the Taliban regime in Afghanistan. He surrendered to U.S. troops in fall 2001 and was taken to the U.S. Naval Base at Guantanamo Bay, Cuba. Military authorities learned he was born in Louisiana, and was therefore a U.S. citizen. In April 2002, he was sent to a Navy brig in Norfolk, Va., where he was held without charges and without being permitted to speak to a lawyer or his family.
A month later, the FBI arrested Jose Padilla, a Bronx-born Muslim, at Chicago’s O’Hare International Airport after he disembarked from a flight that had originated in Pakistan. Investigators suspected he was involved in an Al Qaeda plot to detonate a radioactive “dirty bomb” in the United States, and Atty. Gen. John Ashcroft hailed his arrest as a major victory in the war against terrorism.
But rather than charge Padilla with conspiracy to commit an act of terror, the Bush administration dubbed him an “enemy combatant” and sent him to a Navy brig in Charleston, S.C.
Lawyers for both men challenged their detention, and two federal appeals courts have issued conflicting rulings.
The conservative U.S. Court of Appeals in Virginia upheld Hamdi’s detention, ruling that the Constitution gives the commander in chief the clear “authority to detain those [combatants] captured in an armed struggle” against the United States, regardless of whether they are citizens or foreigners. However, its opinion stressed that Hamdi was captured on a foreign battlefield.
In December, the liberal U.S. Court of Appeals in New York ruled for Padilla and said he must be charged with a crime or released. “Padilla’s detention was not authorized by Congress, and absent such authorization, the President does not have the power ... to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.”
This week, U.S. Solicitor Gen. Theodore B. Olson, Bush’s top courtroom lawyer, said he planned a fast-track appeal in Padilla’s case. The New York ruling “undermines the president’s constitutional authority to protect the nation from additional enemy attacks in wartime.”
Separately, lawyers for Hamdi had urged the court to review his case. It “works a radical change in the balance between the three branches of government [to condone] an open-ended executive power to imprison American citizens,” they said.
The justices met Friday for the first time since their holiday recess, and they voted to take up the issue of “enemy combatants.” Though the court is taking up the case of Hamdi vs. Rumsfeld, its ruling is likely to decide the Padilla case as well.
Bush’s lawyers say “time-honored law and customs of war” make clear that the military can capture and hold enemies. “The Executive’s determination that an individual is an enemy combatant is a quintessentially military judgment” and is off-limits to second-guessing by the courts, Olson said in his appeal.
Defenders of the administration say it makes no sense to give terrorists and enemy soldiers a right to hearings in federal court. They also said they were not worried that the court voted to hear Hamdi’s appeal over the administration’s objection.
Pepperdine University law professor Douglas W. Kmiec called the decision to hear Hamdi’s case “a positive development.” He predicted the court will not “interfere with necessary military decision-making,” but instead will “write a narrowly drawn opinion that affirms it in the new and perplexing circumstances on the war on terror.”
On the other side, critics said Bush has followed a lawless course by ignoring both the Geneva Convention and the U.S. Constitution. They said Hamdi and Padilla should either be treated as prisoners of war or accused criminals.
“The United States’ treatment of [Hamdi] radically departs from settled law and history” on prisoners of war, Yale University law professor Harold Hongju Koh said in a friend-of-the-court brief on behalf of experts in international law.
The high court agreed in November to decide whether the nearly 600 foreigners held by the U.S. military at Guantanamo are entitled to a court hearing to assert their innocence.