HISTORIC SUPREME COURT DECISION LOOMING
By Henry Adams

February 21, 2004

On Friday, Feb. 20, the Supreme Court agreed to make a ruling that will lead to the most important pronouncements in more than 50 years on the war powers of the executive in our system of government.[1]

The Supreme Court will rule on the constitutionality of the indefinite detention of an American captured inside the United States as a terrorist suspect.

The Bush administration is arguing that Senate Joint Resolution 23 (September 18, 2001) created, as the Boston Globe put it, "a virtually open-ended grant of power to the president to manage the US response to terrorist threats at all levels, inside this country and abroad." See below for the text of S.J. Res. 23.[2]

When George W. Bush signed S.J. Res. 23, also on Sept. 18, 2001, he issued a statement in which the stage was set for the collision now being refereed by the Supreme Court.[3]

S.J. Res. 23 attempted to restrict the president to "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."[2]

The president's message of the same day, however, showed a clear intent to expand the authority of the executive, referring to the attacks of Sept. 11 as but "the latest terrorist acts," and claiming that S.J. Res. 23 "recognizes the seriousness of the terrorist threat to our Nation and the authority of the President under the Constitution to take action to deter and prevent acts of terrorism against the United States."[3]

In fact, S.J. Res. 23 was drawn more narrowly against the "nations, organizations, or persons" involved in planning and committing the attacks of 9/11.

It is this struggle, going to the heart of the American system of government, that the upcoming Supreme Court decisions will bear upon.

1.

SUPREME COURT TO HEAR DETAINEE CASE
By Lyle Denniston

** To decide if suspect in 'dirty bomb' can be held indefinitely **

Boston Globe
February 21, 2004

http://www.boston.com/news/nation/washington/articles/2004/02/21/

WASHINGTON -- The Supreme Court agreed yesterday to rule on the constitutionality of the indefinite detention of an American captured inside the United States as a terrorist suspect, setting the stage for the most important declarations in a half-century on the government's war powers.

The case of Jose Padilla, a US citizen designated an "enemy combatant" by presidential order, is expected to be heard by the justices in late April along with two other cases linked to the war on terror that were granted review earlier.

Padilla successfully challenged his detention in a lower court, and the justices agreed in a brief order to hear the Bush administration appeal and to handle the case on an expedited basis.

The other cases already before the court involve Yaser Esam Hamdi, a US citizen named an "enemy combatant" after he was captured in Afghanistan, and a group of 16 foreign nationals seized in Afghanistan or Pakistan and now being held at the US naval base in Guantanamo Bay, Cuba.

Together, the three cases could produce a historic constitutional drama, unfolding amid this year's presidential campaign, in which the global fight against terrorism is likely to be a prominent issue. Decisions in all three cases are expected by late June or early July.

The court, which in recent years has shown a willingness to flex its powers in the domestic sphere by striking down more than 30 federal laws, will be confronting a fundamental challenge to its authority to monitor the wartime decisions of the nation's commander in chief.

"With these three cases being heard so closely together, there's going to be a large body of law made this spring," said Richard A. Samp, chief counsel at the Washington Legal Foundation, a legal advocacy group that supports the Bush administration view of presidential war powers. "The court," he said, "is going to decide whether the courts ought to be deferring to the executive branch on foreign policy issues; traditionally, they have been very deferential."

Nancy Chang, a staff attorney for the Center for Constitutional Rights, a legal advocacy group that supports Padilla's challenge, commented: "I can't imagine more serious questions. Collectively, these cases raise some issues of the most profound dimension," issues that she said the court had not been addressed since the Supreme Court ruled in June 1952 that President Truman did not have the power to seize US steel mills to prevent a labor strike during the Korean War.

These are the constitutional questions that the legal papers in the three cases have asked the court to answer:

* Does the president, acting alone, have the power to order the capture and detention of US citizens as enemy combatants, captured either in this country or on a foreign battlefield?

*If Congress must authorize such action, did it do so when it passed a resolution backing the president right after the terrorist attacks of Sept. 11, 2001?

*Did Congress, in a 1971 law forbidding detentions of US citizens unless Congress gave specific permission, bar the detentions President Bush has ordered in the war on terrorism?

*Do the federal courts have any authority to review the detentions either of US citizens or of foreign nationals captured here or overseas and held by the US military?

Lower courts, in deciding the three cases, tracked constitutional law back to the nation's foundation and the government structure built at the convention in Philadelphia in 1787.

Bush and his lawyers in the Justice Department in all three cases are seeking to preserve the maximum amount of discretion for the commander in chief to choose the means to carry on the war against terrorism, with little or no interference by courts.

They also are attempting to establish the congressional resolution enacted in 2001 as a virtually open-ended grant of power to the president to manage the US response to terrorist threats at all levels, inside this country and abroad.

Those aspects of the constitutional controversy will be before the court at the April hearing, even though the Bush administration has made repeated efforts in recent weeks to narrow the scope of the cases of Padilla, Hamdi, and the foreigners at Guantanamo.

It has allowed Padilla and Hamdi to have access to lawyers for the first time in their nearly two years of detention, although military officers will oversee any such contacts. And it has begun releasing a number of the Guantanamo detainees -- including two of the 16 whose case is pending before the justices.

So far, the government has filed no criminal charges against Padilla, Hamdi or any detainee at Guantanamo.

Padilla is suspected of being part of a plot to set off a radiological "dirty bomb" inside the United States, and the government contends that he had close ties with the Al Qaeda terrorist network.

The attorney who represents Padilla, Donna R. Newman of New York City, told Bloomberg News yesterday that she looked forward to the hearing in the case, and repeated her main legal claim: "The executive does not have the power that they claim here, specifically to hold a citizen who has been captured in the US."

That argument succeeded in the US Court of Appeals for the Second Circuit, based in New York City, in a ruling last December that ordered Padilla released from the Navy brig and turned over for possible criminal prosecution.

The appeals court, however, has since postponed his release pending Supreme Court action on the government's appeal of the case.

In that appeal, Justice Department lawyers argue that the appeals court ruling in Padilla's favor "eliminates a core wartime judgment of the commander in chief."

They say Padilla had close ties to Al Qaeda, planned to engaged in "hostile and warlike acts," and had intelligence information that could help the US ward off future terrorist attacks.

Earlier this month, however, the Pentagon announced that it had concluded questioning Padilla for intelligence information, and thus decided he could now see a lawyer. Attorney Newman said yesterday that the details of that visit are still being negotiated.

2.

SENATE JOINT RESOLUTION 23
AUTHORIZATION FOR USE OF MILITARY FORCE (ENROLLED BILL)
SEPTEMBER 18, 2001

http://www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm

Became Public Law No. 107-40.

One Hundred Seventh Congress of the United States of America

AT THE FIRST SESSION

Begun and held at the City of Washington on Wednesday,

the third day of January, two thousand and one

Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the 'Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL -- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements --

(1) SPECIFIC STATUTORY AUTHORIZATION -- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS -- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Speaker of the House of Representatives.

Vice President of the United States and President of the Senate

3.

STATEMENT BY THE PRESIDENT

The White House
Office of the Press Secretary
September 18, 2001

http://usinfo.state.gov/topical/pol/terror/01091917.htm

Today I am signing Senate Joint Resolution 23, the "Authorization for Use of Military Force."

On September 11, 2001, terrorists committed treacherous and horrific acts of violence against innocent Americans and individuals from other countries. Civilized nations and people around the world have expressed outrage at, and have unequivocally condemned, these attacks. Those who plan, authorize, commit, or aid terrorist attacks against the United States and its interests -- including those who harbor terrorists -- threaten the national security of the United States. It is, therefore, necessary and appropriate that the United States exercise its rights to defend itself and protect United States citizens both at home and abroad.

In adopting this resolution in response to the latest terrorist acts committed against the United States and the continuing threat to the United States and its citizens from terrorist activities, both Houses of Congress have acted wisely, decisively, and in the finest traditions of our country. I thank the leadership of both Houses for their role in expeditiously passing this historic joint resolution. I have had the benefit of meaningful consultations with members of the Congress since the attacks of September 11, 2001, and I will continue to consult closely with them as our Nation responds to this threat to our peace and security.

Senate Joint Resolution 23 recognizes the seriousness of the terrorist threat to our Nation and the authority of the President under the Constitution to take action to deter and prevent acts of terrorism against the United States. In signing this resolution, I maintain the longstanding position of the executive branch regarding the President's constitutional authority to use force, including the Armed Forces of the United States and regarding the constitutionality of the War Powers Resolution.

Our whole Nation is unalterably committed to a direct, forceful, and comprehensive response to these terrorist attacks and the scourge of terrorism directed against the United States and its interests.

George W. Bush