Supreme Court looks at 'enemy combatants'
From Bill Mears
CNN Washington Bureau
 |  The cases of Jose Padilla (right) and Yaser Hamdi are before the Supreme Court on Wednesday. |
| |
|  VIDEO |
 CNN's Bob Franken on the U.S. Supreme Court's look at whether enemy combatants are protected by the U.S. legal system.
|
|
WASHINGTON (CNN) -- The U.S. Supreme Court on Wednesday will hear the cases of two U.S. citizens with suspected ties to terrorism and who have been held without being charged.
Jose Padilla and Yaser Hamdi have been designated as "enemy combatants."
At issue is whether American citizens 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.
Lawyers for both men have filed habeas corpus petitions, an established protection against false imprisonment under which the government must either go before a judge and make a case for holding a person, or release him.
The Padilla and Hamdi appeals are possibly the most important terrorism-related cases to come before the justices since the September 11, 2001, attacks.
Following September 11, Bush and Congress adopted sweeping antiterror policies that critics say in many cases undermine the civil liberties of Americans.
Legal scholars say the arguments will go to the heart of citizens' basic constitutional rights.
"It's finally time for the basic questions about the scope of the president's power to hold people without the approval of the courts, that are really going to be confronted," said Thomas Goldstein, an appellate attorney who has argued dozens of cases before the high court.
"If you're on U.S. soil, do you have a right to get into U.S. courts and have a lawyer?"
Padilla was born in New York and raised in Chicago, Illinois. He is accused of -- but not yet charged with -- plotting to detonate a radioactive "dirty bomb" in the United States.
Padilla was arrested at O'Hare International Airport in May 2002 on a flight from Pakistan.
He has been accused of meeting with al Qaeda's former operations chief, Abu Zubaydah, and discussing stealing radioactive material to set off a crude explosive device.
Padilla's defense attorney, Donna Newman, questions why it was necessary to take him out of civilian custody.
"When he was arrested as an enemy combatant by the military, he was already in jail for almost a month -- in a civil jail, under high security," Newman told CNN.
"So he was no threat, absolutely not. What they are saying if you really read it is that he had information that they wanted. Well, that's a little scary isn't it?"
The Pentagon permitted Newman and co-counsel Andrew Patel, New Jersey and New York-based defense attorneys, to visit Padilla only after deciding in February that its interrogation of the alleged al Qaeda operative had ended.
"Most of the talking was done by me," Newman said. "My aim was simply to educate him."
The March 3 meeting was videotaped with sound by the government. A member of the military was present at all times. And all of the attorneys' notes were photocopied by the military.
Newman said the visit fell short of a standard attorney-client meeting, which is confidential, so the attorneys discussed only the legal issues of the case, not facts or allegations.
"It certainly did not comport with due process," Newman said.
The attorneys had hoped to meet with Padilla privately over five days, but the Pentagon limited the visit to the same strict conditions granted in February to the attorney for Yaser Hamdi.
Hamdi was born in Louisiana but grew up in Saudi Arabia. He was arrested on the battlefield in Afghanistan in November 2001 and has been in military custody since then.
He was transferred to the U.S. Navy base at Guantanamo Bay, Cuba, but then brought to the United States when officials confirmed his citizenship.
Hamdi and Padilla are currently being held in a military brig in Charleston, South Carolina.
Padilla won a legal round when a federal appeals court ordered him released from military custody in January, saying the president had no authority to declare him an enemy combatant.
The court said authorities could transfer him to civilian custody, where criminal charges could be filed.
Hamdi, however, has lost all his federal appeals.
Some legal experts say the government has constitutional precedent on its side.
"It's absolutely, clearly, constitutionally permissible, as a matter of international law, for an enemy combatant, lawful or unlawful, detained in the course of open hostilities, to be held on any charges proffered, for the duration of this particular conflict," said David Rivkin, a former Justice Department attorney.
"For a very simple reason: It's not penal or punitive, or designed to get info out of him, which is entirely possible. You want to make sure he doesn't go back and pick up arms against you."
Other scholars question how receptive the court will be to presidential authority in these cases.
"The difficulty with the administration's position is that, at least as applied to U.S. citizens, it poses a threat to essentially anyone who the administration chooses to call an enemy combatant," said Mark Tushnet, a Georgetown University law professor.
"They're not willing to subject their designation to the scrutiny of any outsider except under an extremely loose standard."
Rulings in the cases are expected by early July.
The cases are: Hamdi v. Rumsfeld (03-6696) and Rumsfeld v. Padilla (03-1027).
