The US Supreme Court will decide by the end of this month whether the Bush administration is violating the rights of "enemy combatants" in the war on terrorism. Anayat Durrani reports The United States Supreme Court on 27 April heard arguments in the cases of two US citizens, Jose Padilla and Yasser Essam Hamdi, designated "enemy combatants" and who have been held without charge or trial under US military custody on a naval brig in Charleston, South Carolina. Padilla has been held since June 2002 and Hamdi has been held since January 2002. The Supreme Court will determine whether American citizens deemed a terrorist threat, or who may have knowledge of impending terrorist attacks, can be held incommunicado indefinitely without due process. "Padilla and Hamdi, both United States citizens, have been denied due process of law and other procedural protections that are guaranteed under the US Constitution to civilian detainees," said Marjorie Cohn, executive vice president of the National Lawyers Guild. "Bush has overstepped his legal power by calling Padilla and Hamdi 'unlawful combatants' who can be held without charges or access to counsel until the war on terror is over," she said. In the months following 11 September, President Bush and Congress enacted anti-terror policies that many believe undermine the civil liberties of Americans. Congress authorised the president to "use all necessary and appropriate force against those nations, organisations or persons he determines planned, authorised, committed or aided the terrorist attacks". How the Supreme Court interprets these anti-terror policies may influence the decisions in the Hamdi v Rumsfeld and Rumsfeld v Padilla cases. By default the Supreme Court will determine what civil liberties US citizens labelled enemy combatants are entitled to. "If the Supreme Court agrees with Bush, the US military will be able to snatch people off the street," said Cohn. "They will then be called 'unlawful combatants' and be held in a legal black hole beyond the reach of US courts. This is a serious threat to justice and the rule of law," she said. In May 2002, Padilla, 33, a former gang member and convert to Islam, was accused of being part of a plot to build and detonate a "dirty bomb". Padilla, a Brooklyn native, was arrested when he landed at Chicago's O'Hare International Airport on 8 May. Attorney-General John Ashcroft designated Padilla an "enemy combatant" of the United States, saying it was in the national interest to do so. Padilla is alleged to be an operative for Al-Qaeda. President Bush called him "a threat to the nation" and a "would-be killer". Meanwhile, in December, the United States Second Circuit Court of Appeals in New York ruled that Bush does not possess the power to indefinitely detain an American citizen taken into custody on American soil on suspicion of terrorism. Hamdi's case differs from Padilla's in that he was arrested on a foreign battlefield rather than on American soil. According to the US government, Hamdi, 23, an American citizen of Saudi decent, allegedly was "affiliated" with a Taliban unit which surrendered to Afghan Northern Alliance forces in November 2001. Hamdi was then transferred to US custody. In Hamdi's case, the Fourth Circuit Court of Appeals ruled, based on a two-page declaration by a Pentagon official, that the president's powers were within the constitution, allowing him to detain Hamdi indefinitely. The two-page affidavit by Pentagon official Michael Mobbs alleges that Hamdi travelled to Afghanistan in summer 2001 to train with the Taliban military and that when his unit surrendered he was armed with a Kalashnikov assault rifle. Ashcroft and Bush maintain that the detention of Padilla and Hamdi is necessary in the new kind of war in which the US is engaged. Critics have argued that the cases of Padilla and Hamdi, detained in the name of the war on terrorism, have been more a war on the constitution and the civil liberties of Americans. Attorneys for Hamdi and Padilla have called the treatment of both men unconstitutional and have filed habeas corpus petitions, an objection to false detention or imprisonment. Lawyers for the Bush administration argue that under the constitution the president can order the military to seize and detain suspects whom he designates "enemy combatants" in the war on terror. On 1 June, in a televised press conference, Deputy Attorney-General James Comey briefed reporters on previously classified allegations against Padilla. Comey detailed these allegations against Padilla, whom he described as "a soldier of our enemy, a trained, funded and equipped terrorist". Comey outlined Padilla's alleged plans to use natural gas to blow up high-rise apartment buildings in the US. Andrew Patel, one of Padilla's attorneys, characterised Comey's information as "an opening statement without a trial". He criticised Comey for the timing of the statement and for Padilla's only recent and limited access to an attorney. Another of Padilla's attorneys, Donna Newman, called Comey's statement mere government strategy, saying: "Whenever the government has felt pressure... they come forth to help themselves." The government has come under criticism for its decision to detain US citizens as "enemy combatants" and deny them access to the court system. Ashcroft was criticised a week earlier for overstating the threat posed from Al-Qaeda against the United States. Comey has denied the timing of the disclosure was an attempt to influence the Supreme Court. He said they chose to release the classified information to "help people understand why we are doing what we are doing in the war on terror and to help people understand the nature of the threat we face". The US Supreme Court is expected to announce its decision on the cases at the end of June or early July.
