High court hears 'enemy combatant' cases
At issue is president's authority to hold detainees indefinitely
From Phil Hirschkorn and Bill Mears
WASHINGTON (CNN) -- Government lawyers told the Supreme Court on Wednesday that the president has the legal authority to detain and interrogate suspected terrorists indefinitely without charging them regardless of whether they are arrested overseas or in the United States.
But attorneys for two such detainees warned that the executive branch is seeking unchecked and "limitless" powers.
Government lawyers told the nine justices that the president's constitutional powers as commander in chief permit him to order the military to seize suspects whom he designates "enemy combatants" in the war on terror.
The Bush administration defended its actions in the cases of two men who have been imprisoned, largely incommunicado, for two years on allegations of ties to al Qaeda -- the terrorist group behind the attacks of September 11, 2001 -- or the Taliban, the former Afghan regime that gave al Qaeda harbor until a U.S.-led invasion.
In the first case, Yaser Hamdi, 23, an American-born Saudi, was captured in 2001 while fighting with the Taliban against the U.S. military in Afghanistan.
Hamdi initially was transferred with hundreds of other battlefield captives to the U.S. naval base at Guantanamo Bay, Cuba.
In the second case, Jose Padilla, 33, a New York-born American who had recently lived in Egypt, was arrested at O'Hare International Airport in Chicago, Illinois, after returning on a flight from Pakistan.
Padilla is suspected of plotting to detonate a radioactive "dirty bomb" in the United States. Padilla initially was transferred to a federal jail in Manhattan, where he was held under a material witness warrant in connection to a grand jury investigation of the September 11 attacks.
After Padilla spent a month in jail there, President Bush declared him a "grave threat" to national security, labeled him an enemy combatant and ordered his transfer to military custody.
Since 2002, both men have been detained at the U.S. naval brig in Charleston, South Carolina, and were denied access to counsel until earlier this year.
Attorneys for Hamdi and Padilla have filed habeas corpus petitions, a legal maneuver that challenges unlawful imprisonment.
"We have never authorized detention of a citizen in this county without giving him an opportunity to be heard," Hamdi attorney Frank Dunham told the court. "He has never been able to look at the facts alleged against him and give his side of the story."
Based on two recent meetings with Hamdi in Charleston, Dunham said that a "substantial dispute" exists about the facts of the case.
A two-page affidavit by Pentagon official Michael Mobbs alleges that Hamdi traveled to Afghanistan in summer 2001 to train with the Taliban military and that he had a Kalashnikov assault rifle when his unit surrendered.
Hamdi spoke English to U.S. military interrogators, who considered him an enemy combatant, according to Mobbs' affidavit.
"It has been well established and long established to hold both unlawful and enemy combatants and prisoners of war captured on the battlefield in order to prevent them from returning to the battle," said Deputy Solicitor General Paul Clement, adding that 10,000 U.S. troops remain stationed in Afghanistan.
Justice Ruth Bader Ginsburg asked Clement how the government justified its treatment of Hamdi compared with other post-September 11 terrorism defendants such as John Walker Lindh and Zacarias Moussaoui, who have faced criminal charges and had access to counsel.
Clement said the government had a "unique interest ... with some detainees" to obtain actionable intelligence information to prevent "future terrorist acts."
Justices Anthony Kennedy, Sandra Day O'Connor, Anthony Kennedy and David Souter all questioned what the time limit of indefinite detention could be.
"It has never been the case that prisoners of war are entitled to counsel to challenge their arrest or detention," Clement said. "The end of the war is a very difficult thing to perceive."
Souter surmised that the government was arguing, "Don't worry about the timing question, we'll tell you when it's over."
Dunham said Congress' authorization of the use of military force against perpetrators of the September 11 attacks was silent on the issue of detention.
"We could have people locked up all over the country tomorrow," Dunham said. "The government saying 'trust us' is no excuse."
Padilla's case differs from Hamdi's, notably in that he was arrested on U.S. soil, not on a foreign battlefield. But Clement, who argued both cases for the government, said the detainees could be treated the same.
In December, the 2nd U.S. Circuit Court of Appeals in New York ruled that the president exceeded his authority in Padilla's indefinite detention, ordered his release from military custody and invited the government to file criminal charges.
Jennifer Martinez, an assistant professor at Stanford Law School who argued on Padilla's behalf, told the Supreme Court that he "is entitled to be charged with a crime and have his day in court."
The Pentagon has alleged that Padilla received explosives training in Afghanistan, researched the construction of a "uranium-enhanced" explosive device and discussed its detonation inside the United States with former al Qaeda operations chief Abu Zubaydah, also a U.S. captive.
"The government asks in this case for basically limitless power, and however grave the circumstances on the war on terror may be, this nation has faced other grave threats ... and never before in the nation's history has this court granted the president a blank check to do whatever he wants to American citizens," Martinez said.
"Even in wartime -- especially in wartime -- the founders wanted to place limits on the ability of the executive to deprive citizens of liberty," Martinez said.
She noted the Patriot Act requires that noncitizen detainees be charged or deported after seven days.
Justice Antonin Scalia said the president's commander in chief status "doesn't mean that he has power to do whatever it takes to win the war."
Justice Stephen Breyer asked Clement, "Why isn't the appropriate force -- where he's in the United States and the courts are open -- what we would call ordinary criminal process?"
Clement cited a World War II-era case in which Nazi saboteurs were captured in the United States as a precedent for the president to detain enemy belligerents on American soil.
Clement said the September 2001 congressional authorization of the use of military force supported the president's conduct.
"To read it to deny the government the authority to detain a latter-day citizen version of Mohamed Atta is simply to ignore the will of Congress," Clement said, referring to the lead hijacker of the 19 men who commandeered the four jetliners used in the September 11 attacks.
Born in New York and raised in Chicago, Padilla lived in Florida before moving to Egypt in 1998. A convert to Islam, Padilla took the name Abdullah al Muhajir.
He served five years in juvenile detention in connection with a murder and 10 months in a Florida jail for a gun violation. Ten years later, in May 2002, FBI agents arrested him as an alleged associate of al Qaeda.