January 8, 2004
U.S. Reasserts Right to Declare Citizens to Be Enemy Combatants
By ERIC LICHTBLAU
WASHINGTON, Jan. 7 — The Bush administration on Wednesday reasserted its broad authority to declare American citizens to be enemy combatants, and it suggested that the Supreme Court consider two prominent cases at the same time.
The Justice Department, in a brief filed with the court, said it would seek an expedited appeal of a federal appeals court decision last month in the case of Jose Padilla, jailed as an enemy combatant in 2002.
The divided Court of Appeals for the Second Circuit, in New York, ruled on Dec. 18 that President Bush lacked the authority to indefinitely detain an American citizen like Mr. Padilla who was arrested on American soil simply by declaring him an enemy combatant. Mr. Padilla has been held incommunicado at a military brig in South Carolina. American authorities say he plotted with operatives of Al Qaeda overseas to detonate a "dirty" radiological bomb in the United States.
But the Justice Department said in its brief that the ruling was "fundamentally at odds" with court precedent on presidential powers.
The decision "undermines the president's constitutional authority to protect the nation," Solicitor General Theodore B. Olson wrote.
The Justice Department said it hoped the Supreme Court would consider an appeal in April.
The court is also expected to decide in coming days whether to consider an appeal involving an enemy combatant, Yaser Esam Hamdi, who has been held alongside Mr. Padilla in the Navy brig. Mr. Hamdi, an American citizen, was arrested in Afghanistan in 2001 while fighting with Taliban troops. The administration's decision to declare him an enemy combatant was upheld by a federal appeals court in Richmond, Va.
Frank W. Dunham Jr., who is representing Mr. Hamdi, said in a brief to the Supreme Court that the Padilla decision "clearly conflicts" with the decision in the Hamdi case.