Attorneys ask Supreme Court to reconcile combatant cases
Court decisions at odds, Hamdi attorneys say
From Phil Hirschkorn
CNN
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Yaser Hamdi, center, is shown being captured in Afghanistan.
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| TERROR CASES |
Pending cases at the Supreme Court related to the government's fight against terrorism:
GUANTANAMO BAY: Whether hundreds of detainees in the U.S. terrorism prison at Guantanamo Bay, Cuba, may challenge their treatment in American courts. The government won in a lower court. The cases are Rasul v. Bush, 03-334, and Al Odah v. United States, 03-343. Oral arguments will be in March or April. SECRECY: Whether the legal case of an immigrant in Florida was improperly shrouded in secrecy. The court has asked the Bush administration to respond to the appeal of a waiter from Algeria who challenged his detention. ( Full story) The case is M.K.B. v. Warden, 03-6747. IMMIGRANT ROUNDUPS: Whether the government must disclose information about more than 700 immigrants arrested in the months after the terror attacks. The case is Center for National Security Studies v. Department of Justice, 03-472. The justices are expected to announce as early as Jan. 12 if they will consider appeal.
ENEMY COMBATANT: Whether the government is unconstitutionally holding Yaser Esam Hamdi in a Navy brig in South Carolina, without most legal rights. The government won in lower court. The case is Hamdi v. Rumsfeld, 03-6696. The court is expected to announce as early as January 12 if it will consider the appeal.
Source: The Associated Press |
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(CNN) -- A recent federal appeals court ruling supports the case for a U.S. Supreme Court review of "enemy combatant" Yaser Esam Hamdi's indefinite detention, his attorney argued in a brief filed with the high court earlier this week.
A decision last month by the U.S. Court of Appeals for the 2nd Circuit in New York is at odds with the reasoning of the U.S. Court of Appeals for the 4th Circuit in Richmond concerning Hamdi's detention, his attorneys argued.
Hamdi is a Louisiana-born Saudi who was captured in Afghanistan fighting with the Taliban regime that gave sanctuary to al Qaeda, the terrorist group behind the September 11, 2001, attacks on the United States.
The Hamdi petition followed last July's ruling by the 4th Circuit that upheld the Bush administration's position that the president has the authority to designate "combatants" and transfer them to military custody, where they are not afforded rights normally granted criminal defendants.
But in December, the 2nd Circuit rejected the administration's view in the case of Jose Padilla, a Brooklyn-born Puerto Rican who allegedly conspired with al Qaeda to detonate a "dirty bomb" -- a conventional weapon laced with radioactive material -- inside the United States.
Both men are being held incommunicado at the navy brig in Charleston, South Carolina.
"Mr. Hamdi and Mr. Padilla, both American citizens, are being subjected to indefinite detention in the same facility in the United States for the same reason: they have been designated enemy combatants by the Executive," wrote the attorneys from the federal public defender's office in the Eastern District of Virginia.
"The only factual difference between citizen Padilla and citizen Hamdi is the geographic location where they were seized by the military," they continued. "Mr. Hamdi was seized abroad."
Hamdi, initially transferred to the base at Guantanamo Bay, Cuba, has been detained for more than two years without access to lawyers.
Last month the administration indicated it would allow Hamdi access to a lawyer, because it had exhausted its interrogations of him.
Padilla was arrested 20 months ago as a material witness for the grand jury probe into September 11, when he arrived in Chicago on a flight from Pakistan. A month later, President Bush declared Padilla a "grave danger to the national security" and transferred him to military custody.
The administration has argued the power to detain Padilla and Hamdi as "enemy combatants" stems from the president's constitutional powers to wage war and say that the courts may not interfere with those national security decisions.
While the Virginia appeals court supported that view, a three-judge appeals court panel in New York concluded "the President lacks inherent constitutional authority as commander-in-chief to detain American citizens on American soil outside the zone of combat."
The New York court also agreed that Padilla ought to be able to contest evidence against him through his attorneys.
The Justice Department is preparing motions to stay the appeals court order to transfer Padilla back to civilian custody and to seek further review -- either by all 12 judges of the appeals court or by the Supreme Court.
The Supreme Court has scheduled a Friday conference to plan its calendar of cases it may hear later this year, including the Hamdi case.
