http://www.nytimes.com/2004/04/29/politics/29DETA.html?8br
Court Hears Case on U.S.
Detainees
Published: April 29, 2004
ASHINGTON, April 28 — The Bush administration
yielded no ground before the Supreme Court on Wednesday in arguing that the open-ended
military detention of United States citizens as enemy combatants, without
criminal charges or access to lawyers, was justified both in law and as policy.
It is "remarkable that
we have to confront this question when our troops are still on the ground in
Afghanistan," Paul D. Clement, principal deputy solicitor general, told
the justices.
A majority of the justices
expressed some degree of concern over the breadth of the administration's
position. Justice Sandra Day O'Connor asked Mr. Clement why "a neutral
decision maker of some kind" could not be provided to determine whether a
detainee is being properly held. "Is that so extreme that it should not be
required?" she asked.
Mr. Clement said the
potential detainees' initial screening, sorting those to be held from those who
need not be, met that requirement. "For all intents and purposes, that is
a neutral decision maker," he said.
Mr. Clement also rebutted a
suggestion by Justice Ruth Bader Ginsburg that detainees should have a forum to
explain themselves. They already have one, he said, adding, "The
interrogation process itself provides an opportunity for an individual to
explain that this has all been a mistake."
Despite the justices'
evident discomfort, it was far from clear by the end of two hours of intense
and sober argument that the court would tell the administration that it had
gone too far, either in the case of Yaser Esam Hamdi, an American-born Saudi
who was seized in Afghanistan, or Jose Padilla, a Chicagoan taken into custody
at O'Hare Airport.
In a case they heard last
week, the justices appeared sympathetic to the argument that federal courts
have jurisdiction to review the open-ended detention of noncitizens at the
naval base at Guantánamo Bay, Cuba. The cases on Wednesday appeared to raise a
more difficult issue: not only whether the detainees can get into court, but
how the courts are to balance the rights they claim against the needs of
national security that the government asserts.
Mr. Hamdi and Mr. Padilla,
now in a brig in Charleston, S.C., have spent two years in military custody. Several
justices questioned the open-ended nature of the detention.
"Doesn't the court
have some business intervening at some point if it's the Hundred Years' War or
something?" Justice Stephen G. Breyer asked.
Mr. Clement replied,
"I'm not quite sure what you have in mind that they would intervene
on."
Justice Anthony M. Kennedy,
whose position appeared most in doubt, pressed Mr. Clement at one point for
some sign of a concession. "I'm taking away from the argument the
impression, and please correct me if I'm wrong, that you think there is a
continuing role for the courts to examine the reasonableness of the period of
detention," he said in a hopeful tone.
Mr. Clement was quick to
correct him. "Well, I wouldn't take that away, Justice Kennedy," he
said.
The outcome in both cases
may well turn on how the court interprets the resolution Congress passed a week
after the attacks of Sept. 11, 2001, authorizing the president to use "all
necessary and appropriate force" against organizations or
"persons" involved in planning the attacks or aiding the terrorists. If
the detention of citizens requires Congressional authorization, Mr. Clement
said, that resolution provided it.
"To read it to deny
the government the authority to detain a latter-day citizen version of Mohammed
Atta is to simply ignore the will of Congress," he said, comparing Mr.
Padilla to a chief Sept. 11 hijacker.
The lawyer and Justice
Breyer sparred over the meaning of the phrase "necessary and
appropriate." To Justice Breyer, those words provide a basis for
curtailing discretion. He asked why military detention was "necessary and
appropriate in a country that has its courts open, that has regular criminal
proceedings, that has all the possibility of adjudicating a claim that `I'm the
wrong person.' "
He added, "Why is it a
`necessary and appropriate' thing to do once you have such a person who is a
citizen in this country to proceed by other than a normal court
procedure?"
*********************************** INTERVALO PARA SEGUNDA PARTE – AS DUAS FOTOS LATERAIS DE REFERÊNCIA (NO TEXTO ACIMA)
Prof. Jennifer Martinez after arguing on behalf of Jose Padilla, a
Chicagoan the government calls an enemy combatant.
Getty Images
"We have never authorized detention of a citizen in this country
without giving him an opportunity to be heard, to say, 'Hey, I am an innocent
person,' " Frank W. Dunham Jr., told the justices on behalf of Yaser Esam
Hamdi.
*********************************** INTERVALO PARA SEGUNDA PARTE
Court Hears Case on U.S.
Detainees
Published: April 29, 2004
(Page 2 of
2)
To Mr. Clement, the phrase
was a commitment to presidential authority rather than a limit. "I
certainly wouldn't read the Authorization of Force's use of the term `necessary
and appropriate' as an invitation for judicial management of the executive's
war-making power," he said, adding, "I would have viewed it as a
delegation to the executive to use its traditional authority to make
discretionary judgments in finding what is the necessary appropriate
force."
Mr. Clement asked the court
to recognize that "where the government is on a war footing, you have to
trust the executive to make the kind of quintessential military judgments that
are involved in things like that."
Jennifer Martinez, a
Stanford Law School professor representing Mr. Padilla, and Frank W. Dunham
Jr., a federal public defender representing Mr. Hamdi, reportedly captured on
an Afghan battlefield with the Taliban, vigorously disputed the meaning Mr.
Clement attached to the Congressional resolution. Ms. Martinez said
authorizations to use force in wartime, even broadly written, have not
"traditionally been interpreted to allow the executive unlimited power
over citizens."
To Justice O'Connor's
comment that "it appears to allow detention of people captured," Mr.
Dunham replied that the resolution spoke only of military force and "does
not have the word detention anywhere in it."
Mr. Dunham said if the
resolution was interpreted to authorize "indefinite executive
detention" at the president's discretion, "we could have people
locked up all over the country tomorrow without any due process, without any
opportunity to be heard."
He added, `'There is no
indication that Congress intended any such thing."
The two cases, Hamdi v.
Rumsfeld, No. 03-6696, and Rumsfeld v. Padilla, No. 03-1027, followed different
routes to the court.
Mr. Dunham appealed a
ruling by the United States Court of Appeals for the Fourth Circuit, in
Richmond. That court ruled that although Mr. Hamdi was entitled to challenge
his detention by means of a petition for a writ of habeas corpus, he was not
entitled to contest the government's assertion of the basis for his
classification as an enemy combatant, in a nine-paragraph statement by a
Pentagon official, Michael H. Mobbs. In dismissing Mr. Hamdi's petition, the
appeals court said Mr. Mobbs's statement provided all the justification the
government needed.
In answer to a question
from Justice John Paul Stevens, Mr. Dunham said although there was a
"substantial dispute" about the validity of the government's
assertions, he could not provide any details. Although he had recently been
allowed to meet Mr. Hamdi for the first time, he said, "everything he has
told me they tell me is classified, so I'm not allowed to convey it to the
court this morning."
In the case of Mr. Padilla,
said by the government to have plotted detonating a "dirty"
radiological bomb, the administration brought the Supreme Court appeal. The
United States Court of Appeals for the Second Circuit, in New York, ruled that the
president was without authority to detain Mr. Padilla. The court cited a law
Congress passed in 1971 to prohibit the detention of citizens without explicit
authorization by Congress. The resolution authorizing military force after
Sept. 11 did not provide that authority, the appeals court said.
The administration is
arguing that the 1971 law, known as Section 4001, does not apply at all in the
military context. But in any event, Mr. Clement argued, the appeals court
decision should be overturned because by the time Mr. Padilla filed his habeas
corpus petition, he was in military custody in the Fourth Circuit and was
outside the Second Circuit jurisdiction.
If the Supreme Court rules
for the government on that basis — a distinct possibility — the decision would
shed no light on the deeper issues the case raises.
FOTO LATERAL AO TEXTO DA SEGUNDA PARTE:
"We
have never authorized detention of a citizen in this country without giving him
an opportunity to be heard, to say, 'Hey, I am an innocent person,' "
Frank W. Dunham Jr., told the justices on behalf of Yaser Esam Hamdi.