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Washington-A former American POW who spent 13 months in Stalag 17 during World War II and a Japanese-American who, at the same time, was confined in a Utah internment camp, share common ground in the U.S. Supreme Court this week during a very different kind of war. Leslie H. Jackson, 83, was captured by the German Army in 1944 when his B-17 bomber crashed. After interrogation, he was transported to Stalag 17, a converted concentration camp. Fred Korematsu, 85, was arrested in 1942 for defying an executive order that sent more than 120,000 American citizens of Japanese ancestry to internment camps during the war. After his conviction, he was sent to the Topaz internment camp in Utah. Korematsu fought his conviction all the way to the Supreme Court and lost in what would become known as one of the court’s most infamous decisions, Korematsu v. U.S. Both men have filed friend-of-the-court briefs in terrorism-related cases now before the justices. And both hope that history will persuade the court that there are limits to executive power in the war on terrorism. Their briefs are among more than 70 amicus filings in four cases that the justices will hear in the final two weeks of the term’s oral arguments. And while the numbers probably will not sway individual justices, opponents of the Bush administration’s position in these cases outnumber by almost 2-1 those supporting the administration. On April 20, the justices will take up the consolidated cases of Rasul v. Bush, No. 03-334, and Al Odah v. U.S., No. 03-343. The petitioners are Australian, British and Saudi nationals captured abroad in connection with hostilities in Afghanistan and incarcerated at Guantanamo. They ask the high court whether U.S. courts have jurisdiction to hear these foreign nationals’ challenges to the legality of their detentions. A week later, the justices separately take up Hamdi v. Rumsfeld, No. 03-6696, and Rumsfeld v. Padilla, No. 03-1027, on April 28. Both Yaser Hamdi and Jose Padilla are American citizens designated as “enemy combatants.” Hamdi was taken into custody in Afghanistan and Padilla was arrested in Chicago. Both cases involve challenges to the president’s authority to detain indefinitely American citizens designated as enemy combatants by the government. “Fred always says he doesn’t want what happened to him to happen to anybody,” said Kathryn Korematsu of her husband, physically frail after three bouts of pneumonia last year. Justice Hugo Black once noted, “Most cases before this Court involve matters that affect far more people than the immediate record parties.” And that aspect of Supreme Court litigation is no doubt responsible for the growth of amicus briefs: 800% in the last 50 years, according to a study. In the terrorism-related cases, the amicus briefs fall into certain categories. There are the traditional civil liberties and human rights groups, such as the American Civil Liberties Union, Lawyers Committee for Human Rights and Amnesty International, and their frequent opponents, the American Center for Law and Justice and the Washington Legal Foundation. There are competing scholars of international law, federal jurisdiction, habeas corpus and legal history. And on both sides, former diplomats, former federal appellate judges and former government officials. Unique to these cases are amicus briefs by military defense lawyers, former judge advocate general (JAG) officers and former American POWs. And briefs have been filed by relatives of a Saudi national detainee and a Canadian detainee discussing the rights of juveniles under international law. In the Guantanamo cases, “On the left and center, all of the amicus briefs that I’m familiar with are in support of judicial review, the rule of law, due process, and against the notion that the military or the president can designate someone as an unlawful enemy combatant and insulate them from effective judicial review,” said Douglas Cassel, director of the Center for International Human Rights at Northwestern University School of Law and coordinator of the amicus effort. Particularly compelling, he said, were the Korematsu brief and the one filed by the two former JAGs and the Marine Corps legal officer. In the JAG brief, the three retired officers voice their concern that foreigners capturing American forces in future conflicts will use the failure of the United States to follow the Geneva Conventions in Guantanamo as justification for refusing to apply those same conventions to American captives. They focus on the 1949 conventions’ requirement that foreign prisoners receive a hearing by a “competent tribunal” to determine their status. For officers of that background “to come in and publicly take issue with what the Pentagon and White House are doing with these cases is extraordinary,” said Cassel. “I’m not sure this has ever happened in American history.” In the same vein, he said, Korematsu, whose health is fragile, “is really a voice of conscience saying we have made mistakes before and let’s not make them again.” The Washington Legal Foundation, a pro-business organization, is supporting the government in the terrorism cases. “We have always as part of our charter supported a strong national defense and have never supported the courts stepping in and second-guessing the government on foreign policy issues,” said Vice President Richard Samp, adding that he thinks the parties are not “all that far apart” in Hamdi and Padilla. “Everybody agrees it’s troublesome when American citizens are held without trial,” he said. But “so long as you’re only holding less than a dozen people, I don’t think the government’s good faith is going to be seriously challenged.” Pat Robertson’s American Center for Law and Justice also has filed a brief supporting the government. “It’s not a First Amendment case, not a religion case, not a campaign finance case,” said Chief Counsel Jay Sekulow. “But we made a major decision after 9/11 institutionally that we had to broaden the issues.” The center argues the Guantanamo detentions are not illegal under the law of war and international law. And in Hamdi and Padilla, it contends, domestic law must yield to the law of war. Thomas Cullen and Betsy Miller of Jones Day drafted the American POW brief with Jackson, and fellow POWs Edward Jackfert and Neal Harrington, supporting the detainees. “I thought the court could use first-hand knowledge about the value of the Geneva Conventions,” said Jackson. The brief provides evidence of how prisoners were treated depending on whether the conventions applied. In the end, the measure of an amicus brief’s success, said scholars and litigators, is whether it provides information that no one else has given the court.

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