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Washington�The U.S. Supreme Court wrapped up oral arguments for the current term last week by hearing cases stemming from the war on terror. Those two cases and a third argued the week before, say high court scholars and litigators, will define the 2003-2004 term and most likely will be only the beginning of the court’s involvement in war-related questions. “There will be a next step in the court having to deal with the war, but it will deal with it incrementally,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, an amicus party supporting the government in the cases. Full habeas issue On the last day of oral arguments, lawyers for the Bush administration and for Yaser Hamdi and Jose Padilla, Americans designated by President Bush as “enemy combatants,” clashed over the source of the president’s authority to hold those two men indefinitely-more than two years now-without charges and without a full habeas corpus hearing. Hamdi v. Rumsfeld, No. 03-6696; Rumsfeld v. Padilla, No. 03-1027. The week before, the justices heard a challenge by a group of foreign nationals detained at the Guantanamo Bay naval base in Cuba. Those enemy combatants argue that they have a right to challenge their detentions through habeas petitions in federal court. Rasul v. Bush, No. 03-334; Al Odah v. U.S., No. 03-343. Key issues on the justices’ minds during the Hamdi and Padilla arguments were the practicality of full habeas review for citizen enemy combatants, the indefinite duration of the detentions in a war with no clear end point and the source of the president’s power to detain Hamdi and Padilla. “My sense was a majority of the court seemed troubled by the breadth of the government’s assertion of unchecked executive power to detain,” said Professor David Cole of Georgetown University Law Center and author of Enemy Aliens (New Press, 2003). “Justices [Sandra Day] O’Connor, [Stephen] Breyer and [David] Souter all asked questions about how long can this go on.” Those three also probed Deputy Solicitor General Paul Clement on why the military couldn’t provide a hearing in which citizen detainees could be heard. Clement said they have that opportunity in the initial screening and later interrogation by the military. As in the Guantanamo Bay case, Cole said, it appeared there may be a majority of justices for the view that, at a minimum, the military has to provide a hearing similar to what is required by Article V of the Geneva Conventions: “not a full-blown hearing, but an opportunity for the individual to be heard on his claim and to respond to evidence. That opportunity has been denied to every person labeled an enemy combatant, whether citizen or foreign national.” Cole and Professor Douglas Kmiec of Pepperdine University School of Law agreed that there seemed to be virtually no support for the ruling by the 2d U.S. Circuit Court of Appeals that the president has no authority to hold Padilla because of a 1971 law requiring specific congressional authorization for the detention of American citizens. Clement argued that Bush has that authority as commander in chief and under Congress’ authorization of all necessary and appropriate force against nations, organizations and individuals following the 9/11 attacks. “On balance, I think the court is likely to articulate an opinion that gives deference to presidential authority but also tries to outline where the end point to their toleration might be,” said Kmiec. “As Justice Breyer said, we want to know if we’re dealing with something akin to a 100 years’ war and what the role of the judiciary is in intervening before then.” Coyle’s e-mail address is [email protected].

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