05Jan04-Gina Holland-High Court May Broaden Terror War Review
GINA HOLLAND
Associated Press
WASHINGTON - The Supreme Court will announce this month whether it will broaden a review of the Bush administration's imprisonment of terror suspects.
The court already overrode the objections of the administration in November to take an appeal that asks whether foreigners held at the U.S. Navy base at Guantanamo Bay, Cuba, may contest their captivity in American courts.
Now justices will decide whether to hear the appeal of U.S.-born terrorism suspect Yaser Esam Hamdi. The government won its argument in a lower court that Hamdi may be kept incommunicado and without access to a lawyer or U.S. courts, even though he is a citizen.
A second case awaiting the justices' return from the holidays is a challenge to the government's policy of withholding names and other details about hundreds of foreigners who were detained in the months after the Sept. 11, 2001, attacks.
The appeals come before the justices after a series of setbacks for the White House, most recently rulings last month from appeals courts in San Francisco and New York that sided with alleged enemy combatants.
"It's bollixed their strategy a little bit," said Timothy Lynch, a lawyer with the Cato Institute, a libertarian think tank in Washington.
The government had won several lower-court rulings that gave it momentum and time to interrogate suspects like Hamdi without interference from courts, Lynch said.
The Supreme Court is reviewing one of the government's earlier victories, in the Guantanamo Bay case, and will hear arguments in the spring. The court has a chance to intervene in two others: involving Hamdi and immigrant information.
Hamdi has been in custody for two years, since being captured during fighting in Afghanistan. He was brought to the United States and has been held in a naval brig in South Carolina.
At the same jail is Jose Padilla, a former Chicago gang member accused of plotting to detonate a so-called dirty bomb. Padilla's attorneys won a victory on his behalf last month in the New York-based 2nd U.S. Circuit Court of Appeals. The second ruling was in favor of prisoners held at Guantanamo Bay Naval Base.
"It's taken two years for these cases to percolate. It's like it is springtime. The bulbs are producing flowers. They're popping up all over the place," said Mary Cheh, a constitutional law professor at George Washington University.
Cheh joined legal experts and former prisoners of war in urging the Supreme Court to review Hamdi's appeal. They said in a filing that the U.S. military could mistakenly arrest journalists or aid workers in another country, and those people would have no way to prove their innocence.
The government maintains that the detentions of terror suspects, without legal rights, are necessary for national security.
White House spokesman Scott McClellan said last month that detainees are being treated well, but "let's keep in mind we're talking about enemy combatants who were involved in planning and plotting to harm American citizens."
Scott Silliman, director of Duke University's Center for Law, Ethics and National Security, said that government lawyers are hoping the high court decides against reviewing more terror cases for now.
A loss at the high court in any of the enemy combatant cases, he said, "will have a crippling effect on the current legal strategy for dealing with terrorists."
The Pentagon, in a surprise move, announced in December that it would let Hamdi see an attorney because it was finished interrogating him. The Supreme Court could still use his appeal to decide if such detentions are unconstitutional.
On Friday, a coalition of journalism organizations and media companies asked the Supreme Court to let them join an appeal in another terror-related case. The news groups are siding with an immigrant in Florida whose challenge to his detention after the Sept. 11 attacks was handled in secret. At issue is the secrecy of the proceeding for Mohamed Kamel Bellahouel. The Bush administration had a Monday deadline to file its own arguments in the case.
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