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Scientific uncertainty (continued)

LAST WEEK, the Supreme Court heard back-to-back oral arguments in two landmark "war on terror" cases — Rumsfeld v. Padilla and Hamdi v. Rumsfeld — examining President Bush’s asserted power to snatch American citizens abroad or in this country, and hold them indefinitely in a military brig, without charge and with no access to lawyers, a trial, or a hearing.

In the case of Jose Padilla (the US citizen arrested at Chicago O’Hare International Airport, jailed in New York, and then classified an "enemy combatant" based on his alleged involvement in a "dirty bomb" plot), Deputy Solicitor General Paul Clement obviously made a strategic decision, as Solicitor General Ted Olson did in the Guantánamo cases the previous week (see "Could the Gulag’s Future Hang on a Real-Estate Deal?", This Just In, April 30), to steer the discussion away from substance and toward legal technicalities. Clement used more than half his allotted 30 minutes to argue that Padilla had filed his case in the wrong geographic district.

Padilla has been held in a South Carolina military brig since June 10, 2002, when military authorities transported him there from New York. Padilla’s lawyer — Donna Newman, the New York criminal-defense attorney appointed to represent him during his Manhattan detention — filed Padilla’s habeas corpus petition in New York the following day, and the Second Circuit Court of Appeals (which has jurisdiction over New York) eventually ruled his detention unlawful. Last week, Clement argued that, when the military moved Padilla to South Carolina, jurisdiction should have moved with him — so Newman should have filed the petition in South Carolina instead.

If the high court agrees with Clement and dismisses Padilla’s case on jurisdictional grounds, then any future US-citizen "enemy combatants" — regardless of where they are initially arrested — would be able, once moved to the brig in South Carolina, to raise challenges only in the Fourth Circuit Court of Appeals, the most pro-government federal-appellate court in the country. Such a procedural requirement would put the government at a significant advantage in all future cases.

In Hamdi, this is not an issue, because the case has been in the Fourth Circuit all along. This case presents facts somewhat more favorable for the government; although Yasser Hamdi is also a US citizen, he was captured in Afghanistan. Few Americans would feel directly threatened by the indeterminate detention of someone — even a fellow citizen — whom the government captured on a foreign battlefield. More of us, on the other hand, would identify with a fellow citizen who, like Padilla, was picked up in Chicago.

At oral argument, Clement’s answers on the merits showed just how breathtaking the Bush administration’s position is. In response to questions probing the limits of the authority claimed by the president, Clement asserted that the military could lock up a citizen indefinitely and, to facilitate interrogation, deny that person access to a lawyer or anyone else. When Justice Stephen Breyer asked why Hamdi could not be given a hearing before a neutral arbiter, Clement said, "It may not seem what you think of as traditional due process ... but the interrogation process itself provided an opportunity for an individual to explain that this has all been a mistake." Thus, the neutral arbiter is the interrogator!

This effrontery peaked after Justice Anthony Kennedy commented, "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." Clement quickly responded, "Well, I wouldn’t take that away, Justice Kennedy," and explained that "the continuing but modest role" of the court is just to hear the administration’s own reasons for continued detention. Hence, the Supreme Court that stopped the Florida recount and put George W. Bush in the White House was told that it could not even limit the length of an American citizen’s stint in Bush’s nascent American gulag.

Padilla’s lawyer, Stanford Law professor Jennifer Martinez, seemed to have trouble explaining just how revolutionary the president’s claim to near-absolute power was. Her relative inexperience in the trenches may have been a factor; the 1997 Harvard Law graduate and former clerk to Justice Breyer replaced Newman (Padilla’s long-time court-appointed trial lawyer) at the last minute based on, in Newman’s words, Martinez’s "stellar résumé." The disadvantage of inexperience did not apply, however, to Hamdi’s older, battle-hardened trial lawyer, federal public defender Frank W. Dunham Jr. He used his three-minute rebuttal to tell the justices and the nation what is really at stake in these cases — probably the most important civil-liberties actions to come before the Supreme Court since the WWII-era Japanese-American internment cases. "One citizen," Dunham said, got "caught up in a problem in Afghanistan. Is it better to give him 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 ... [or] get due process? I think not. And I would urge the court not to go down that road. I would urge the court to find that citizens can only be detained by law."

The court is expected to decide both cases before its summer recess begins in June.

Harvey A. Silverglate is a regular Phoenix "Freedom Watch" contributor, an attorney with Boston’s Good & Cormier, and co-author of The Shadow University (HarperPerennial, 1999). Carl Takei is a writer, paralegal, and soon-to-be law student at Boston College Law School.

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Issue Date: May 7 - 13, 2004
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