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Supreme Court Expands Review of 'Enemy Combatant' Rule

WASHINGTON, Feb. 20 — The United States Supreme Court announced today that it would review the case of Jose Padilla, an American citizen being held in a Navy brig as an enemy combatant, thus setting the stage for an historic debate on the balance between individual liberties and national security.
February 20, 2004
By DAVID STOUT


The justices will hear the case of Mr. Padilla in April, when they will hear a related case, that of Yaser Esam Hamdi, another American citizen being held in a brig without charges as an enemy combatant.

Still another case already scheduled to be argued before the court in April concerns nearly 700 foreigners being detained as enemy combatants at the United States naval base at Guantánamo Bay, Cuba.

The justices are expected to rule on all three cases before their summer recess. Collectively, the rulings are likely to be of profound importance, drawing lines between the powers of courts and the administration and, perhaps, affecting the civil liberties of Americans in ways not yet imagined.

"I think the stakes are very high," Andrew Patel, one of Mr. Padilla's lawyer, told The Associated Press today. "Because the president said, `I think you're a bad man,' he's been in jail for two years. He hasn't had a chance to defend himself. That's not the way we do things in this country, when we're at war or when we're at peace."

Lawyers for Mr. Padilla and Mr. Hamdi have contended that their treatment is unconstitutional. President Bush, Attorney General John Ashcroft and lawyers for the Bush administration have argued that Mr. Padilla and Mr. Hamdi are being treated fairly, essentially like prisoners of war, and that detaining them is appropriate and essential in the new kind of conflict the United States has been fighting since the terrorist attacks of Sept. 11, 2001.

Solicitor General Theodore B. Olson has argued that Mr. Padilla represents a "a continuing, present and grave danger" to national security, and that Mr. Hamdi is a "classic battlefield detainee."

While the cases of Mr. Padilla, Mr. Hamdi and the Guantánamo detainees all revolve around the antiterrorism measures instituted by the government after Sept. 11, they have significant differences.

The treatment of the Guantánamo detainees, captured during the American military operation in Afghanistan that toppled the Taliban in the fall of 2001, has brought international criticism upon the United States. The United States Court of Appeals for the District of Columbia Circuit unequivocally supported the Bush administration's position that the Guantánamo detention camp was beyond the reach of American law.

But in December, the United States Court of Appeals for the Ninth Circuit, in San Francisco, issued a contrary ruling. It declared that the administration's policy of imprisoning the foreigners without access to United States legal protections was unconstitutional as well as a violation of international law.

The Hamdi and Padilla cases, while both involving American citizens, differ markedly in one respect. Mr. Hamdi, an American citizen of Saudi descent, was captured while fighting with the Taliban in Afghanistan.

But Mr. Padilla, a former Chicago gang member with a long criminal record, was arrested on American soil: at O'Hare International Airport in Chicago in May 2002, after returning to the United States from travels in the Middle East and Pakistan. The American authorities said Mr. Padilla, a convert to Islam, had planned to explode a radioactive "dirty bomb" in the United States as part of an Al Qaeda operation.

In December, the United States Court of Appeals for the Second Circuit, in New York, dealt a severe defeat to the administration's policies, ruling in the case of Mr. Padilla that President Bush lacked the authority to detain indefinitely a United States citizen arrested on American soil on suspicion of terrorism simply by declaring him "an enemy combatant."

While Congress might have the power to authorize the detention of an American, the president, acting on his own, did not, the Second Circuit declared.

The Bush administration fared better in the Hamdi case. The United States Court of Appeals for the Fourth Circuit, in Richmond, ruled last year that a two-page declaration by a Pentagon official was a "sufficient basis" for concluding that Mr. Hamdi's confinement was within the president's constitutional authority as commander in chief.

Having already accepted the Hamdi case and that of the Guantánamo detainees, the Supreme Court was widely expected to take that of Mr. Padilla as well. Today, it did, with the usual words: "The petition for a writ of certiorari is granted."


Source: http://www.nytimes.com/2004/02/20/politics/20CND-PADI.html?pagewanted=print&position=