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Detainee cases hit court

The high court takes up cases contesting the government's treatment of 'enemy combatants.'

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Lawyers challenging the Bush administration's approach to the war on terror argue that all detainees are entitled to some measure of due process. And they say US citizens are entitled to the full protections of the US judicial system regardless of any presidential designation as an enemy combatant.

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Government lawyers say that because the Guantánamo prison camp is outside the sovereign control of the United States, US courts lack jurisdiction over any claims by Guantánamo prisoners.

A federal appeals court in Washington agreed with the government's position in a March 2003 ruling. But last month, a federal appeals court in California reached the opposite conclusion. In a 2-to-1 decision, the court ruled that because the US exercises territorial jurisdiction over Guantánamo (if not outright sovereignty), the prisoners have a right to challenge their confinement.

In the Hamdi case, a federal appeals court in Richmond, Va., has upheld the president's power to hold indefinitely US citizens he determines to be enemy combatants. But last month, a federal appeals court in New York ruled 2-to-1 in the Padilla case that the president lacked the authority to order the open-ended detention of American citizens on American soil.

A potential key difference between the Hamdi and Padilla cases is where each man was taken into custody. The appeals court that upheld Hamdi's detention noted that he was captured on a foreign battlefield in possession of an assault rifle, while the appeals court in the Padilla case pointed out that he was arrested at a US airport and "away from a zone of combat."

In the Padilla case, government lawyers dispute that the president is acting without authority - including congressional authorization. They say Congress passed a joint resolution a week after the Sept. 11 attacks authorizing all the actions the president has taken in the war on terror. The resolution directs the president to "use all necessary and appropriate force" against any person he determines is involved in efforts to conduct further acts of terrorism against the US.

Bush administration lawyers say Padilla is just such a person.

Not according to others

The New York appeals court disagreed. It said the congressional action authorized the war in Afghanistan but not the actions taken within the US. "As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," the judges wrote in their Dec. 18 decision. "But presidential authority does not exist in a vacuum."

In effect, the appeals court said the president must rely on his law-enforcement powers rather than his powers as commander in chief to wage the war on terror whenever it implicates a US citizen within the States.

Solicitor General Olson says the Padilla case involves "issues of extraordinary national significance."

"The court of appeals' conclusion that the president categorically lacks the authority to detain Padilla as an enemy combatant is fundamentally at odds with this court's decisions," Olson says in his brief to the justices. "And it undermines the president's vital authority as commander in chief to protect the United States against additional attacks launched within the nation's borders."

The solicitor general says the president is better able than appeals court judges to decide how best to deal with Padilla. "The president's decision to detain Padilla as an enemy combatant in lieu of detaining him in the criminal justice system reflects a sensitive determination at the core of the president's Article II powers concerning the best interests of the nation in wartime," Olson says. "Judges have little or no background in the delicate business of intelligence gathering."