The NewStandard ceased publishing on April 27, 2007.

Case Challenges Detention of US Citizens as 'Enemy Combatants'

by Jessica Azulay

US Supreme Court hears due process requests of 2 US citizens held without charges. Civil and human rights organizations file briefs and demonstrate, challenging president's authority over “enemy combatants”

Apr. 28, 2004 РThe US Supreme Court heard arguments today over the two cases brought on behalf of American citizens petitioning for their right to a trial. Yaser Esam Hamdi and Jos̩ Padilla have both been held without charges in military prison for over two years without access to US courts.

Toolbox
Email to a Friend
Print-friendly Version
Add to My Morning Paper

The Bush Administration claims their detention is necessary for national security and is constitutional on the grounds that Hamdi and Padilla are "enemy combatants," detained during the ongoing "War on Terror." Advocates for the two detainees, including more than two-dozen civil and human rights groups as well as the American Bar Association, say the administration is overstepping its executive powers and violating their constitutional right to a fair and timely trial.

Though both cases address the same underlying issue of whether or not the president has the power to detain US citizens without judicial oversight, Padilla was detained in the US and Hamdi was captured in Afghanistan. The distinct locations of their detention have led lower courts to treat their cases differently.

José Padilla was detained by US authorities in May of 2002 at O'Hare International Airport in Chicago under suspicion that he was involved in a terrorist plot to detonate a radioactive bomb in the United States. Though formal charges were never brought against him, he has remained imprisoned by the US military. An earlier ruling by the Second Circuit Court of Appeals found the US government was not authorized to hold Padilla without a trial.

"If the government’s position were adopted by this Court, a US citizen who is falsely or inaccurately accused could be detained indefinitely, without effective access to counsel to test the basis for his detention ... any judicial proceeding. Such power is fundamentally incompatible with the constitutional guarantee of due process, with the role constitutionally assigned to the courts in the protection of individual rights, and with the rule of law itself." --American Bar Association

Yaser Esam Hamdi, after his capture by the Northern Alliance during the war against Al Qaeda in Afghanistan, was held at the Guantanamo Bay detention center, where hundreds of foreign nationals also labeled "enemy combatants" have been held for over two years without charges, access to lawyers, or the courts. When it became known that Hamdi was a US citizen, he was moved from Guantanamo into Military custody in the US. As opposed to the Padilla case, the Fourth Circuit Court of Appeals found that the government could hold Hamdi as an enemy combatant without providing him access to trial in US courts.

Both men did not have access to their lawyers until recently and neither has been formally charged with a crime.

The government claims that since the US is currently involved in the "War on Terror," the president has the authority to detain as an "enemy combatant" anyone who is deemed to pose a threat to national security.

Bush administration attorney Paul Clement told the Court, "It has been well-established, and long-established, that the government has the authority to hold unlawful enemy combatants ... in order to prevent them from returning to the field of battle," the Associated Press reports.

Lawyers arguing on behalf of the government claim that Congress had approved such detentions when it approved the use of military force in the wake of the September 11, 2001 terror attacks.

"Congress supported the President’s use of ‘all necessary and appropriate force against those nations, organization, or persons he determines planned, authorized committed or aided the terrorist [September 11] attacks or harbored such organizations or persons,’" reads a brief filed on behalf of the administration.

But Padilla’s lawyers argue that the approval of military force by Congress did not grant the president power to detain US citizens indefinitely without due process.

"A system of domestic military detention for citizens suspected of plotting violent acts…would represent such a dramatic departure from our Nation’s constitutional traditions that, at a minimum, it must be authorized by a clear and unequivocal statement by Congress, explicitly delineating the scope of such detentions and the procedures to accompany them. The courts then could review that system to determine if its scope and procedures were consistent with the Constitution. In the absence of a clear statement from Congress authorizing such detentions, it is premature for this Court to pass on their constitutionality," their filing stated.

Lawyers for Hamdi and Padilla insist their clients must have access to trials so they can tell their side of the story and challenge their detentions. "[Hamdi] hasn't been able to look at the facts that have been alleged against him and give any kind of an explanation as to his side of the story, which may well turn out to be true," lawyer Frank Dunham Jr. told the Court.

Weighing in on behalf of Hamdi, the American Bar Association filed a brief stating, "If the government’s position were adopted by this Court, a U.S. citizen who is falsely or inaccurately accused could be detained indefinitely, without effective access to counsel to test the basis for his detention in a habeas corpus proceeding or, indeed, in any judicial proceeding. Such power is fundamentally incompatible with the constitutional guarantee of due process, with the role constitutionally assigned to the courts in the protection of individual rights, and with the rule of law itself."

During the arguments, demonstrators representing various civil rights groups protested the government’s detention of Hamdi and Padilla and asked the High Court to check what they called the president’s claim to "unlimited wartime powers." The groups included the American Friends Service Committee, Amnesty International USA, Japanese American Citizen’s League, La Resistencia, Council on American-Islamic Relations, the Not in Our Name Project, and many more.

A statement released to the press on behalf of the more than two dozen organizations, read, "In 2002, President Bush pledged to ‘stand firm’ for the ‘non- negotiable demands of human dignity...the rule of law...and limits on the power of state.’ In what seems like a direct contradiction of his firm pledge, the president is now taking a pick-and-choose approach to enforcing Constitutional protections, claiming that guarantees to due process and equal protection can be suspended at his discretion. The dangerous new presidentially-designated category of enemy combatants, individuals who have no legal rights, is unjust, illegal, and immoral, and cannot be allowed to stand."

Last week the Supreme Court heard arguments in a case brought on behalf of non-citizen detainees being held as "enemy combatants" at the Navy Base in Guantanamo Bay Cuba. The government claims the foreign nationals being held there are not entitled to appeal their detention in US Courts because the courts do not have jurisdiction outside of US territory. Lawyers for the detainees argue that their ongoing detention violates the US constitution as well and many international treaties.

A decision on all three cases pertaining to the president’s authority to detain those he designates an "enemy combatants" is not expected until later in the spring or summer.

Send to Friends Respond to Editors or Reporter

The NewStandard ceased publishing on April 27, 2007.


Jessica Azulay is a staff journalist.

Recent contributions by Jessica Azulay:
more