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High court to review anti-terrorism case of 'dirty bomb' suspe

Saturday, February 21, 2004

WASHINGTON -- The Supreme Court agreed Friday to decide whether U.S. citizens arrested in America as "enemy combatants" may be held indefinitely without access to lawyers or courts, setting the stage for a major ruling on presidential powers versus civil liberties.

The justices had already agreed to consider the government's detentions of terror suspects -- American and foreign -- caught overseas and held incommunicado.

But the case of former Chicago gang member Jose Padilla is seen as the one that will set a key standard as the government pursues the open-ended war on terror: Does the threat of attack justify giving federal authorities unprecedented legal latitude to hold their own citizens?

"The Padilla case is the most significant case for the government," said Scott Silliman, a Duke University law professor. "The court will have the opportunity to define what it is we call the 'war on terrorism."'

Padilla is one of two American citizens classified as enemy combatants, a term used for captives who are neither traditional prisoners of war nor ordinary criminal defendants. He was arrested nearly two years ago in Chicago after returning from Pakistan. The government alleges he was part of a plot to detonate a radiological "dirty bomb" in the United States.

Attorney General John Ashcroft said that the designation of enemy combatants "is a vital part of the war on terrorism," that the Supreme Court should reaffirm.

The Padilla case will be argued along with the appeal of the other American charged as an enemy combatant, Yaser Esam Hamdi. He was picked up on the battlefield in Afghanistan.

Lawyers for both men claim their treatment is unconstitutional. Hearing the cases together will simultaneously address the rights of U.S. citizens captured abroad and at home.

At issue is President Bush's claim of authority to protect the nation and pursue terrorists unfettered by many traditional legal obligations and outside previous precedents for government conduct in wartime.

The Supreme Court is expected to hear both cases in late April, with a ruling by summer.

Separately, the court is hearing a challenge from foreign-born terror suspects held in open-ended custody at the military's prison camp at Guantanamo Bay, Cuba. That case asks whether those more than 650 prisoners may challenge their detention and treatment in U.S. courts.

Critics in the United States and abroad have grumbled that the prolonged detentions violate basic human rights and international agreements.

The court's decision to hear the Padilla case comes up as the Bush administration is easing restrictions on the detentions. It recently allowed Hamdi and Padilla to meet with attorneys, though Padilla has yet to do so.

And on Thursday, officials said five Britons being held at Guantanamo Bay would be released, including two men who are involved in the Supreme Court case: 20-year-old Asif Iqbal and 25-year-old Shafiq Rasul.

Michael Greenberger, who worked on counterterrorism projects in the Clinton administration's Justice Department, said "everything they're doing now is an attempt to make an awful situation much more defensible when it gets to the Supreme Court."

Padilla was arrested on U.S. soil, and the initial allegations against him were aired in the civilian criminal court system. He was later whisked to a military prison in South Carolina, where he was off-limits to his lawyer or other outsiders.

"Because the president said 'I think you're a bad man,' he's been in jail for two years," said Andrew Patel, one of Padilla's attorneys. "He hasn't had a chance to defend himself. That's not the way we do things in this country, when we're at war or when we're at peace."

Hamdi is a suspected Taliban foot soldier captured overseas shortly after the Sept. 11 terror attacks. He was placed alongside Padilla in the same South Carolina brig after U.S. authorities verified his claim that he had been born in Louisiana of Saudi parents.

The administration claims that Padilla, Hamdi and the Guantanamo prisoners are enemy combatants, potential al-Qaida terrorists or their Taliban protectors captured since the jetliner attacks that killed thousands in New York, Pennsylvania and at the Pentagon in 2001.

"The perception that the administration critics have, that innocent people were grabbed off the street, thrown in a black hole and are languishing, that's totally untrue," said David Rivkin Jr., a Washington lawyer who served in the Reagan and first Bush administrations.

He said the administration has done a thorough job ensuring that the detainees are threats to national security.

The case is Rumsfeld v. Padilla, 03-1027.


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