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Homeland Security

30 April 2004

U.S. Supreme Court Reviews Cases on Detainees

Hamdi v. Rumsfeld, Rumsfeld v. Padilla

By Darlisa Crawford
Washington File Staff Writer

Washington -- The U.S. Supreme Court on April 27 heard oral arguments in two cases involving the individual rights of detained "enemy combatants," the extent of presidential authority, and the preservation of national security during the war on terrorism.

The justices of the nine-member court will deliberate on the legalities of the government's denial of a hearing to the detainees. The justices must decide a basic legal question in Rumsfeld v. Padilla, case no. 03-1027, and Hamdi v. Rumsfeld, case no. 03-6696: What are the civil liberties of U.S. citizens labeled enemy combatants?

Yaser Esam Hamdi and Jose Padilla are being held in a naval brig in Charleston, South Carolina. Hamdi and Padilla, both U.S. citizens, have not been charged with a crime and were prohibited from seeing a lawyer for two years. Both were recently given limited access to lawyers, an action that Department of Defense statements describe as a courtesy rather than a legal right.

Hamdi is an American-born Saudi Arabian who was seized by Northern Alliance troops on an Afghan battlefield in 2001. Federal public defender Frank W. Dunham Jr., attorney for Hamdi, said, "(The president) has the right to detain alien combatants, no question about it. But when it comes to U.S. citizens, you don't simply detain them. You prosecute them, like they did with John Walker Lindh."

Padilla, an American suspected of involvement with a radiological bomb plot, was taken into custody at O'Hare International Airport in Chicago in 2002. Stanford Law School professor Jennifer Martinez, attorney for Padilla, said, "Here in this particular case, the government has already said that Mr. Padilla no longer possesses any intelligence value, and so his interrogation is at an end. And at this point, after two years in detention, without any sort of hearing, without any access to counsel, it's more than appropriate that he be charged with a crime unless Congress comes forward with some alternative scheme."

The government maintains that the determination of enemy combatant status is "a quintessential military judgment, representing a core exercise of the commander-in-chief authority" and "entitled to the utmost deference by a court." Under the laws of war in the Geneva Conventions, a government has the right to detain and interrogate captured enemy combatants as long as necessary, without formal charges or the guarantee of a trial or access to a lawyer. The Geneva Conventions allow soldiers to be detained until the end of war.

Deputy Solicitor General Paul D. Clement, who argued for the government in both cases, said, "It has been well established and long established that the government has the authority to hold both unlawful enemy combatants and lawful prisoners of war captured on the battlefield in order to prevent them from returning to the battle. Over 10,000 United States troops remain on the field of battle in Afghanistan. No principle of law or logic requires the United States to release an individual from detention so that he can rejoin the battle against the United States."

Hamdi's defense will attempt to prove that he was not an enemy belligerent under the process of war. However, the circumstances of his capture (he was caught with a weapon on a battlefield) give weight to the military's assertion that he is indeed an enemy combatant. The government seeks affirmation of a lower court ruling that the detention of Hamdi is constitutional. Representing the government, Solicitor General Theodore Olson wrote, "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."

Previously, the U.S. Court of Appeals for the 2nd Circuit held that the president may not unilaterally arrest a U.S. citizen on American soil and hold him indefinitely in military detention as an enemy combatant without Congress's prior authorization for such detention. In deciding the Padilla case, the 2nd Circuit panel ruled that if such detentions were to occur, they should be authorized not just by the president but by the legislature as well.

Legal experts identify the two appeals as potentially landmark terrorism-related cases. How the Supreme Court interprets the resolution passed by Congress a week following the September 11, 2001, attacks may determine the outcome in both cases. The resolution authorized the president to use "all necessary and appropriate force" against organizations or "persons" involved in planning the attacks or assisting the terrorists.

Clement said, "I certainly wouldn't read the Authorization of Force's use of the term ‘necessary and appropriate' as an invitation for judicial management of the executive's war-making power. I would have viewed it as a delegation to the executive to use its traditional authority to make discretionary judgments in finding what is the necessary appropriate force."

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site:

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