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U.S. defends holding 'enemy combatant'

By Phil Hirschkorn
CNN

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Jose Padilla

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(CNN) -- Citing a World War II court decision, the Bush administration insisted the president has the legal authority to detain suspected terrorists, including Americans, indefinitely without criminal charges.

In its Supreme Court brief in the Jose Padilla case, the administration argued Wednesday that the president's Constitutional powers and the post 9/11 congressional authorization to use military force permit Padilla's ongoing detention.

Padilla, 33, was transferred to military custody when President Bush determined the suspected al Qaeda operative was a "grave danger" to national security for allegedly plotting to detonate a radiological "dirty bomb" inside the United States.

An "enemy combatant" since June 2002, Padilla has been held mostly incommunicado for the past 21 months in a U.S. Navy brig in Charleston, South Carolina, and has been interrogated without counsel. He met with an attorney for the first time two weeks ago.

"The authority of the Commander-in-Chief to engage and defeat the enemy encompasses the capture and detention of enemy combatants wherever found, including within the nation's borders. That is particularly true in the current conflict in view of the nature of the September 11 attacks, which were perpetrated by combatants who had assimilated into the civilian population and launched their attacks from within the United States," wrote Solicitor General Theodore Olson.

On September 11, 2001, 19 Islamic militants from other countries hijacked four passenger jetliners and crashed three of them into the twin towers of the World Trade Center in New York and the Pentagon outside Washington. A fourth plane, headed toward Washington, crashed in Shanksville, Pennsylvania, after a passenger uprising.

"As the September 11 attacks starkly illustrate, the enemy is composed of combatants who operate in secret and aim to launch surprise, sporadic, and large-scale attacks against the civilian population," wrote Olson, whose wife, Barbara, was on board the plane that hit the Pentagon.

Multiple intelligence sources provided information that Padilla discussed the dirty bomb plot and bombings of U.S. hotel and gas stations, according to the administration. FBI agents arrested Padilla upon his arrival at Chicago's O'Hare airport in May 2002.

The administration's brief rejected the conclusion of the 2nd Circuit Court of Appeals, which found in December that the president had overreached by asserting his military power on domestic soil on the Brooklyn-born Padilla.

That power "is not limited to aliens or foreign battlefields," Olson said, nor is it "conditioned on an act of Congress."

The administration is relying on a 1942 Supreme Court decision that approved the detention of eight Nazi operatives caught in the United States before they could carry out a plot to blow up brides and railroads. One of those detainees was presumed to be a U.S. citizen.

"[C]itizenship in the United States of an enemy belligerent does not relieve him from the consequences of [his] belligerency," the court said in that earlier case.

The administration also argued that the New York appeals panel and the district judge before them didn't have jurisdiction over Padilla.

Olson said defendants who challenge the legality of their incarceration, seeking what is called a writ of "habeas corpus," do so "in the federal district of confinement," which is South Carolina for Padilla.

The Padilla case will be argued before the Supreme Court on April 28, along with the case of another "enemy combatant," Yasser Hamdi, a Louisiana-born detainee captured in Afghanistan.


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