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U.S. defends treatment of Hamdi

Supreme Court case will touch on presidential war powers

Bill Mears
CNN Washington Bureau

Hamdi, center, is shown captured in Afghanistan in the fall of 2001.

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WASHINGTON (CNN) -- Federal courts should not be "second-guessing" the U.S. military's treatment of an American citizen captured on the battlefield in Afghanistan, the Bush administration says.

In a prelude to a potentially landmark case expected to be argued next month that addresses the scope of presidential power in wartime, U.S. government lawyers filed a written legal brief with the Supreme Court late Monday, arguing its detention of a so-called "enemy combatant" is both constitutional and based on legal precedent.

At issue is whether American citizens arrested on a non-U.S. combat zone can be held incommunicado without charges. The case will test the government's power to interrogate American captives without allowing access to a lawyer or the courts, because they may pose a future threat, or know about pending terrorist attacks. And it could define when and if federal courts can intervene.

"When the commander-in-chief has dispatched the armed forces to repel a foreign attack on this country, the military's duty is to subdue the enemy and not prepare to defend its judgments in a federal courtroom," wrote Solicitor General Theodore Olson, on behalf of the government, which is seeking affirmation of a lower court ruling saying the detention of Yaser Hamdi is constitutional.

The case will serve as a companion to that of Jose Padilla, himself an accused terrorist and U.S. citizen, whose detention was rule unconstitutional by a different lower court. The two appeals, say legal experts, are the most important terrorism-related case the justices will have considered in the wake of the September 11, 2001, attacks.

President Bush and Congress produced sweeping anti-terror policies that critics say in many cases trample on the civil liberties of Americans. Legal scholars say Hamdi's situation will go to the heart of basic constitutional protections.

"In this extraordinarily sensitive national security context, the [Supreme] Court should be wary of adopting a means of testing the validity of an enemy combatant's detention that defeats one of the important military functions served by that detention," Olson wrote.

Hamdi, who was born in Louisiana but grew up in Saudi Arabia, was captured in Afghanistan during fighting with U.S.-led forces in 2001.

U.S.: Review power of courts limited

In its brief, the administration said Hamdi surrendered to U.S. supported Afghan forces while armed with an AK-47 automatic rifle. "He affiliated with a Taliban unit and received weapons training, following the September 11 attacks and after U.S. and coalition forces began military operations in Afghanistan."

The government has given no indication as to whether it will file charges against him. But the government says much of Hamdi's appeal is moot since the Defense Department in December said it had finished its interrogation of Hamdi, and was allowed two months later to meet with his court-appointed attorney, Frank Dunham, for the first time.

The government admitted Hamdi "as an enemy combatant who is a presumed citizen and who is detained in this country, is entitled to judicial review of his detention." But the government argued such review by federal courts is "limited," and it is not required that Hamdi have immediate access to counsel or a preliminary hearing before a judge.

Dunham has argued his client's constitutional rights were being violated. He plans to file his written appeal with the Supreme Court next month.

In the Hamdi case, a federal appeals court in January 2003 ruled the president has the authority to designate U.S. citizens as enemy combatants and detain them in military custody if they are deemed a threat to national security.

"Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one," said the opinion of the 4th U.S. Circuit Court of Appeals.

But a separate, conflicting federal appeals court in New York ruled Padilla's imprisonment was unconstitutional, setting up a judicial showdown before the Supreme Court.

The Justice Department alleges Padilla was part of a scheme by al Qaeda to explode a conventional bomb laced with radioactive material inside the United States.

The cases are Hamdi v. Rumsfeld, case no. 03-6696, and Rumsfeld v. Padilla, case no. 03-1027.

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