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The Supreme Court appeared divided and troubled last week 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 on April 28. 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 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 U.S. Court of Appeals for the 4th Circuit in Richmond, Va., 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 was briefly 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 2nd 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.”

WILL COURT DUCK ENERGY CASE OVER PROCEDURE?

Until last week, the case of Cheney v. United States District Court for the District of Columbia, No. 03-475, was best known for triggering a months-long debate over duck hunting. Or, more precisely, over the propriety of Supreme Court Justice Antonin Scalia taking a duck hunting trip with Vice President Dick Cheney while the case was pending.

Finally, the case, which actually concerns the scope of executive power, was argued on April 27. Scalia took his place on the bench in spite of widespread criticism and pressure to recuse. Ducks were never mentioned, and Scalia participated in the argument with as many tough questions as usual, though they were delivered in an unusually subdued tone.

As it turned out, the arguments were almost an anticlimax, as the legal debate quickly became mired in procedural complexities that might derail the case and turn it into a forgotten footnote.

The factual question at the heart of the case is whether Cheney should be forced to make public the records of his now-defunct energy policy task force. But the hour-long arguments were consumed with technical questions about the finality of the lower-court judgment and why the Bush administration appealed so quickly to the Supreme Court when it was ordered to submit task force documents to a judge for discovery.

“Why are we dealing with the merits?” asked Justice Ruth Bader Ginsburg at one point. “I thought the merits have to be resolved in the first instance by the courts below.” Justice Sandra Day O’Connor also expressed annoyance that the government’s appeal strategy had not given lower courts a chance to rule on the merits of the issue.

Still, the debate over executive power was joined when the discussion veered into substance.

“This is a case about the separation of powers,” Solicitor General Theodore Olson told the Court in his opening line. He insisted that no judge-ordered discovery process would be acceptable in determining whether the Cheney task force was covered by the Federal Advisory Committee Act. That law requires executive branch advisory groups to meet in public and make their records accessible – but not if their membership is confined to full-time or permanent part-time federal employees.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia ordered the discovery so he could determine if non-employees had acted as “de facto” advisory committee members on the energy task force, thereby triggering application of the law.

Sullivan’s ruling was backed up by the U.S. Court of Appeals for the D.C. Circuit.

“Congress may not intrude” on presidential policy making through the FACA law, Olson asserted, prompting Justice Anthony Kennedy to remind him that “the authority of the courts is also involved here” because of the discovery issue. Kennedy seemed unhappy with the suggestion that advisory committees reporting to the president and vice president should be immune from outside scrutiny. “I hear in your argument echoes of every discovery dispute I’ve ever heard,” Kennedy said.

But Olson said the presidency is different, justifying limits on judicial power. Presidents, he said, should not be forced by courts to choose between risking contempt charges and invoking executive privilege to resist discovery. If private groups can compel the president to turn over documents any time they suspect outside influence, there will be time-consuming “FACA lawsuits in a heartbeat” against all presidential advisory groups.

That argument appeared to resonate with justices, including Stephen Breyer, who expressed concern that the executive branch will be “hit with a discovery order” every time an assistant commerce secretary picks up the phone and consults with a private citizen over policy. “You’re putting government in a cocoon.”

The case before the Court arose nearly three years ago amid allegations that outsiders like Enron Corp. head Kenneth Lay had met with the task force. The public interest groups Judicial Watch and Sierra Club filed separate suits under FACA. They alleged that, in fact, the task force included nongovernment employees as “de facto” members, thereby bringing it under the public disclosure requirements of the law. They invoked a 1993 D.C. Circuit ruling that ordered similar public disclosure of documents of then-first lady Hillary Rodham Clinton’s health care reform task force.

The cases were consolidated before Sullivan, who ruled against Cheney and ordered discovery. But the vice president refused, instead seeking a protective order and claiming that no discovery was appropriate. The government stopped short of claiming executive privilege, but asserted that the law did not apply because all those attending task force meetings were federal employees.

The judge refused to grant a protective order, and Cheney sought a writ of mandamus against the court, which is why the District Court is nominally a party in the case. A divided panel of the D.C. Circuit dismissed Cheney’s appeal for lack of jurisdiction and said the issues Cheney raised could be dealt with after final judgment – making the extraordinary plea unnecessary.

Alan Morrison of the Public Citizen Litigation Group, representing the Sierra Club, told the Supreme Court it was unfair for the government to portray itself as “backed in a corner” with no other choice but to resist discovery. It had other options that would have preserved its claims of executive privilege. He also asserted that a loss for the government will not hamper the ability of presidents to obtain advice. “We concede you can call anybody you want.”

Judicial Watch staff lawyer Paul Orfanedes told the Court that Judge Sullivan had acted properly in ordering discovery as a way to “avoid the constitutional issues” of executive power. He also disputed Olson’s claim that the lawsuits were based on unsubstantiated allegations of outside influence on the energy task force. He said government officials had acknowledged consulting outside individuals.

“What does that prove?” asked Justice John Paul Stevens, who seemed unusually hostile to the public interest groups’ arguments.

— Tony Mauro

FOREIGNERS’ ANTITRUST SUITS AT ISSUE

Questions about the global reach of U.S. antitrust law were at the root of an argument heard April 26 by the Supreme Court.

The justices expressed concerns about overstepping the intended boundaries of U.S. antitrust laws and the possibility of decreased antitrust prosecution abroad if U.S. laws were interpreted to allow foreigners the right to bring antitrust actions in U.S. courts.

The case at hand – now known as F. Hoffmann-LaRoche Ltd. v. Empagran S.A., No. 03-724 – was filed by Cohen, Milstein, Hausfeld & Toll lawyers on behalf of foreign vitamin buyers allegedly harmed by a cartel of multinational companies. Cohen, Milstein’s clients sued under the 1982 Foreign Trade Antitrust Improvement Act, which they say allows foreign companies to bring antitrust suits in U.S. courts against multinational corporations.

The U.S. Court of Appeals for the D.C. Circuit last fall allowed the suit against the alleged vitamin cartel to proceed, writing that the conduct of the vitamin cartel “injures both foreign plaintiffs and domestic plaintiffs, and it is clearly the conduct that Congress intends to reach with our antitrust laws.”

Justice Stephen Breyer, the Supreme Court’s leader on antitrust issues, asked if allowing foreign plaintiffs to sue in U.S. courts over transactions that occurred overseas amounts to “judicial imperialism,” noting that, in many other countries, aspects of U.S. antitrust law – including liberal rules on damages, jury trials, discovery, and class actions – are highly controversial.

The justices had few questions for R. Hewitt Pate, the Department of Justice assistant attorney general for antitrust, who shared argument time with Stephen Shapiro, a Mayer, Brown, Rowe & Maw partner arguing on behalf of the alleged cartel. Both Pate and Shapiro argued that foreign-brought antitrust suits should be barred in the United States, unless there is evidence that the alleged antitrust violation had an impact in the United States.

Pate said that opening the door to foreign-brought antitrust actions in U.S. courts could hurt antitrust enforcement here and abroad. For example, if a company involved in an illegal cartel blows the whistle to an enforcement agency, it could very well be given immunity from criminal prosecution. But that very disclosure could then be used by individuals or companies claiming to have been hurt by the cartel to bring suit in the United States, where the whistleblowing company could face treble damages if found guilty. The possible effect: The company remains silent, and the illegal activity is never disclosed.

Justice Antonin Scalia suggested that although more than 100 countries have antitrust regimes, there are many countries that have not developed antitrust laws of their own. His question: “What about the majority of nations without antitrust laws? Might they be eager for us to do the job for them?”

In response to Justice Ruth Bader Ginsburg’s questions about comity, or recognition by courts in different jurisdictions of the laws and judicial decisions of another, Thomas Goldstein, on behalf of those challenging the purported cartel, offered an unusual possible solution. To avoid friction with other jurisdictions, Goldstein suggested, the lower courts could limit the remedies available to foreign plaintiffs to those allowed in their home courts. In other words, if a plaintiff’s home country allows only single damages, Goldstein suggested, the U.S. court could set a cap of single damages if that plaintiff prevails.

— Lily Henning

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