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WASHINGTON — The Supreme Court appeared divided and troubled Wednesday during contentious arguments in a pair of landmark cases testing presidential power to detain U.S. citizens as enemy combatants in the war on terrorism, without judicial review.

At one time or another, most of the justices sounded sympathetic to the government’s wartime stance, but several also clearly struggled to find a compromise that would allow Yaser Esam Hamdi and Jose Padilla — both U.S. citizens captured and held without charges in a U.S. Navy brig for more than two years — some limited form of military-style due process. Some seemed to want to give the government a deadline for charging and trying detainees. The court also dropped hints that Congress ought to play a stronger role by authorizing continued detentions of specific suspected terrorists.

But in the end, it remained unclear where the court may come down.

Underlining the importance of the cases, top members of Congress and the Bush administration watched the two hours of oral argument. Audience members included White House Counsel Alberto Gonzales –frequently mentioned as a future Bush administration nominee to the high court –and Sens. Charles Schumer, D-N.Y., and Edward Kennedy, D-Mass.

The cases, aired on the final day of oral arguments in the current court term, were Hamdi v. Rumsfeld, No. 03-6696, and Rumsfeld v. Padilla, No. 03-1027. The justices and their clerks will now hunker down to speed-write rulings in both cases, along with the Guantanamo Bay detention cases argued April 20, before the court wraps up its term at the end of June.

For most of the two hours, references to due process and habeas corpus rights of U.S. citizens were countered at every turn with reminders of wartime realities and the president’s need to make battlefield decisions without second-guessing from the courts.

In one typical exchange during the Hamdi case, Justice David Souter suggested, “It may very well be that the executive has power in the early exigencies of an emergency. But at some point in the indefinite future, the other political branch has got to act if if that power is to continue.”

Then Justice Antonin Scalia suggested in an incredulous tone that if Hamdi ultimately is freed, he could return to Afghanistan, where he was captured in 2001, to resume battle against the United States. Bush administration lawyer Paul Clement agreed, reminding the court that more than 10,000 U.S. troops remain in Afghanistan.

“I find it remarkable that we have to confront this question when our troops are still on the ground in Afghanistan,” Clement said.

But the court did not shy away from making the government confront the issue of due process for citizens deemed to be enemy combatants. Justice Anthony Kennedy, a likely swing vote, pressed Clement to identify the “outer bounds” of when interrogating a prisoner is no longer useful. Justice Sandra Day O’Connor asked, “Have we ever had a situation like this where presumably this wartime status could last for 25 years, 50 years, whatever it is?”

Justice Stephen Breyer invoked the Magna Carta to remind Clement of “one basic idea that’s minimum: that a person who contests something of importance is entitled to a neutral decision-maker and an opportunity to present proofs and arguments.”

Breyer noted that existing military rules allow officers, even near the battlefield, to determine through a hearing process whether someone who has been captured is in fact an enemy combatant or is, for example, a humanitarian aid worker accidentally caught.

But Clement said Hamdi was not entitled to that procedure, and he stuck to his point that Congress, a few days after the attacks of Sept. 11, 2001, had authorized the president to use all “necessary and appropriate” measures to combat the terrorist threat. Designating U.S. citizens as enemy combatants is one such measure, he said.

Hamdi was captured by Northern Alliance forces in late 2001 in Afghanistan, allegedly carrying an AK-47 assault rifle. According to the Bush administration, he identified himself as a Saudi citizen born in the United States.

Based on initial interviews that indicated he had trained with the Taliban, Hamdi was declared an enemy combatant. He was initially held in Afghanistan and then at the U.S. Naval Base at Guantanamo Bay, Cuba. But when it was determined that Hamdi might be a U.S. citizen because he was born in Baton Rouge, La., he was transferred to Navy brigs in Norfolk, Va., then in Charleston, S.C. His father also contends in court filings that Hamdi is a U.S. citizen.

In proceedings initiated by Hamdi’s father in the U.S. District Court for the Eastern District of Virginia, the government was ordered to give Hamdi access to a lawyer and produce documents establishing that Hamdi was an enemy combatant. The government appealed, and the Fourth Circuit U.S. Court of Appeals reversed, finding that the Constitution gives the president the power to detain enemy combatants without further judicial inquiry. With the case pending before the Supreme Court, the administration allowed Hamdi to meet twice with his lawyers at the Charleston brig in recent months.

Hamdi’s lawyer, Frank Dunham Jr., the federal public defender in the Eastern District of Virginia, made an impassioned argument against unfettered executive power.

“Mr. Clement is a worthy advocate and he can stand up and make the unreasonable sound reasonable,” Dunham said. “But when you take his argument at core, it is, ‘Trust us.’. . . We have the great writ [ habeas corpus] because we didn’t trust the executive branch when we founded this government.”

Dunham continued, “Is it better to give him his rights, or is it better to start a new dawn of saying there are circumstances where you can’t file a writ of habeas corpus and there are circumstances where you can’t get due process? I don’t think so.”

Clement also argued for the government in the Padilla case, which many analysts believe will be harder for the government to win because Padilla, unlike Hamdi, was taken into custody on U.S. soil by civilian law enforcement officers. But the court seemed as divided on Padilla as it did on Hamdi.

Padilla was arrested at Chicago’s O’Hare Airport in May 2002. Accused of having close ties with al Qaeda, Padilla was said to have planned in Pakistan and Afghanistan for a “dirty bomb” terrorist attack in the United States.

After what the government brief describes as a “careful, thorough, and deliberative process,” Padilla was declared an enemy combatant and transferred to the custody of the Defense Department at the Navy brig in South Carolina. His court-appointed lawyer, Donna Newman, filed a habeas corpus petition in the Southern District of New York, where Padilla had briefly been detained as a material witness before a post-Sept. 11 grand jury.

The government contested the petition and even challenged the jurisdiction of that court, asserting the customary rule that habeas petitions should be filed against the warden holding the prisoner — in Padilla’s case, the commander of the brig in South Carolina. U.S. District Judge Michael Mukasey ruled that his court had proper jurisdiction and that the government had authority to detain Padilla, but also said Padilla should be allowed to see his lawyer.

On appeal, the New York-based Second Circuit ruled that without congressional authorization, the administration had no authority to hold Padilla. The divided panel invoked the Non-Detention Act, which prohibits the federal government from detaining any U.S. citizen except under federal law specifically authorizing it. The government appealed — though as with Hamdi, it allowed Padilla to be visited by his lawyer in recent weeks.

The procedural issue — whether the habeas petition should have been filed in South Carolina rather than in New York –took up a surprisingly large part of the argument, suggesting that some justices see it as a major problem in resolving the case.

Clement portrayed it as a significant flaw in Padilla’s argument, but Justice John Paul Stevens asked, “What difference does it make to the government?” Clement replied, “I think it makes sense to have the defense mounted in the place where the detention is taking place.”

Under questioning, Clement said it made no difference legally that Padilla was arrested on U.S. soil, prompting Kennedy to ask, “Could you shoot him when he got off the plane?” Clement said no, but Kennedy persisted: “I assume you could shoot someone that you had captured on the field of battle.”

Clement replied, “Not after we captured them and brought them to safety.”

Arguing for Padilla, Stanford Law School professor Jennifer Martinez told the court, “Even in wartime, America has always been a nation governed by the rule of law. . . . The government asks this court for a broad ruling that would allow the president unlimited powers to imprison any American anywhere at any time without trial, simply by labeling him an enemy combatant.”

Asked repeatedly about the congressional authorization passed after the Sept. 11 attacks, Martinez said it did not specifically deal with the issue of detaining U.S. citizens as enemy combatants.

But Chief Justice William Rehnquist countered, “The authorization passed by Congress is quite broad, and it talks about force against individuals.”

Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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