09ene04

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Supreme Court Expands Review of 'Enemy Combatant' Cases.

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The Supreme Court stepped squarely into a momentous debate over national security and personal liberty today by agreeing to consider the case of a man who has been held without charges by the United States military since he was captured in the fighting in Afghanistan.

The justices agreed to hear the appeal of the captive, Yaser Esam Hamdi, who is believed to hold both American and Saudi citizenship and who is in a Navy brig in Charleston, S.C.

The Bush administration had urged the Supreme Court not to hear the Hamdi case, so the announcement today represented a sharp rebuff to the president, Attorney General John Ashcroft and other architects of administration policy.

In agreeing to hear the case, probably in April, the justices have decided in effect to subject the Bush's administration's antiterrorism policies to a close examination that could have consequences for decades to come.

The administration has argued that the threat of terrorism justifies some tough measures in dealing with suspected enemies of the United States -- holding such people without specific charges in some cases or denying them access to counsel if such tactics can prevent more attacks like those of Sept. 11, 2001.

But some civil libertarians have expressed fears that in so doing the government, and the American people, may make mistakes that will be regretted many years from now, much as the internment of Japanese-Americans during World War II is today.

The justices' decision to take the Hamdi case appeared to increase the likelihood that they would also take another case that pits national security considerations against issues of personal freedom. That case comes from New York City, where the United States Court of Appeals for the Second Circuit ruled on Dec. 18 that President Bush lacks the authority to detain indefinitely a United States citizen arrested on American soil on suspicion of terrorism simply by declaring him "an enemy combatant." The authorities say that suspect, José Padilla, plotted with Al Qaeda to detonate a so-called "dirty bomb" in the United States.

On Wednesday, the Bush administration reasserted its broad authority to declare an American citizen to be an enemy combatant, and it suggested that the justices hear the Hamdi and Padilla cases at the same time.

The government said in its brief that the Second Circuit ruling in the Padilla case was "fundamentally at odds" with court precedent on presidential powers, which the courts have historically given greater deference to in matters of national security. The decision "undermines the president's constitutional authority to protect the nation," Solicitor General Theodore B. Olson wrote.

The justices have already agreed to look at a another case involving detentions in the campaign against terrorism, decided on Dec. 18 by the United States Court of Appeals for the Ninth Circuit, based in San Francisco. That court declared that the administration's policy of imprisoning some 660 noncitizens captured in the Afghan war on a naval base in Guantánamo Bay, Cuba, without access to United States legal protections was unconstitutional as well as a violation of international law.

The Hamdi case comes to the Supreme Court from the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va. That tribunal, widely considered the most conservative federal appeals court, ruled in July that the president does have the authority to detain indefinitely as an enemy combatant a United States citizen captured on the battlefield and to deny him access to a lawyer.

Mr. Padilla, the defendant in the case from the Second Circuit, was arrested in the United States. He is a former Chicago gang member and has been held in the same brig as Mr. Hamdi.

[Source: New York Times, NY, 09Jan04]

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