SUPREME COURT Case tests right to detain

The hearing looked at the detention of two Americans called 'enemy combatants.'
LOS ANGELES TIMES
WASHINGTON -- The Supreme Court gave a skeptical hearing Wednesday to the Bush administration's contention 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 truly unprecedented the administration's contention that the president can order American citizens picked up on American soil to be locked away with no right now or in the future to even challenge their detention.
But the administration's lawyer said a "ticking time bomb" in the form of a suspected terrorist need not be set free simply because the government does not yet have enough evidence to charge him with a crime.
During the hearing Wednesday, however, most of the justices said the law almost always requires that an imprisoned person be given a hearing at some point to plead his innocence.
Geneva Convention
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 Bush 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 General Paul D. Clement, representing the administration.
"How about to a neutral decision-maker of some kind, perhaps in the military? Is that so extreme ... ?" Justice Sandra Day O'Connor asked.
Maybe not, Clement said, adding that in the future, the government might set up a system of military tribunals.
When, Justice 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.
Citizens in case
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 New York City, who was arrested in May 2002 at Chicago's O'Hare Airport after a flight from Pakistan on suspicion of plotting with Al-Qaida to explode a radioactive "dirty" bomb.
Neither man has appeared before a judge nor been charged with any crime.
Clement, the administration's lawyer, stressed that the war on terrorism is unlike past wars and calls for giving the president even greater powers. The United States is not doing battle with another nation and its troops are not fighting a traditional army, administration officials contend, and the terrorists are secretive and seek to blend into the civilian population.
For that reason, they argue it is more important that the government have a free hand to hold and interrogate suspected terrorists rather than prosecute them for a crime.
The court has until late June to issue decisions in the two cases, Hamdi vs. Rumsfeld and Rumsfeld vs. Padilla.