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Bush's power vs. rights of detained citizens

Hamdi and Padilla cases test presidential reach in wartime.

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"The Constitution requires that Congress, and not merely the president alone, determine how to deal with American citizens accused of conspiring with an enemy to commit war-like acts on American soil," says lawyer Carter Phillips in a friend-of-the-court brief in Padilla's case.

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Government lawyers say the president obtained congressional authorization to detain citizens as enemy combatants when Congress passed a resolution in September 2001 authorizing the president to use "all necessary and appropriate force" against Al Qaeda. They note that the resolution also says "the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

Mr. Dunham and Donna Newman, Padilla's lawyer, say the authorization was intended to approve military action in Afghanistan, not the indefinite detention of citizens in US military prisons. They say Congress has passed other laws that bar the detention of Americans without constitutional protections.

In addition to deciding whether Bush obtained congressional authorization, the high court must also decide which of its past decisions best applies to the circumstances of these cases.

In its briefs, the administration relies primarily on a 1942 case called Ex Parte Quirin, in which the Supreme Court upheld Roosevelt's decision to use his military powers as commander in chief to deal with German saboteurs captured in the US.

Administration critics cite a Supreme Court decision called Ex Parte Milligan, which came down in 1866, soon after Lincoln's presidency. The justices ruled that as long as the civil courts are open and functioning, citizens detained by military authorities must be afforded access to civilian courts.

What could happen

Legal analysts say it is unclear whether a majority of justices will seek to use the Hamdi and Padilla cases to announce broad principles that more precisely define the core powers of the presidency - or whether they adopt a fact-specific approach that could result in the court upholding one detention and striking it down in the other. Either way, analysts say, both cases hold the potential to be blockbusters. "So much of the legitimacy of the international human rights framework has depended on US leadership," says Elisa Massimino of Human Rights First, which filed a friend-of-the-court brief. "There will be irreparable harm if the most powerful nation in the world and the leader in the development of human rights law is successful in claiming an exemption for itself in times of fighting terrorism."

Others see a substantial risk to US security if the court undercuts the president's ability to exercise military powers.

"The practical consequences of this court's acceptance of [Hamdi and Padilla's] arguments cannot be overstated," writes Adam Charnes in a friend-of-the-court brief on behalf of a group called Citizens for the Common Defense. "They seek to impose on soldiers on the battlefield - for the first time in history - the obligation to provide enemy belligerents who are citizens with the full plethora of rights due to criminal defendants."

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