Justices struggle to find balance on detainee policy

WASHINGTON -- President Bush's policy of indefinitely detaining people accused of terrorist links met skeptical questions from most of the US Supreme Court justices yesterday -- but key justices appeared to be equally troubled by the prospect of ordering that a person who could be a ''ticking time bomb" be freed when he may hold intelligence that could prevent a wider attack.

Before a packed courtroom, justices struggled to define the proper balance between individual liberty and national security in the war on terrorism as they considered the potentially landmark cases of Jose Padilla and Yasser Hamdi, each a US citizen ''enemy combatant" who has been detained by the military without a trial and largely incommunicado for more than two years.

The hearing was the second in as many weeks over the president's power to indefinitely detain accused terrorists. Last week, the Supreme Court heard arguments involving noncitizens at Guantanamo Bay Navy Base in Cuba, but those cases involve whether US courts have jurisdiction to hear their claims.

Hamdi, accused of fighting with the Taliban in Afghanistan, and Padilla, suspected of plotting a terrorist bombing, are both being held inside the United States, so the Bush administration does not dispute the right of US courts to review their cases. However, the administration wants to limit judicial oversight to reviewing evidence provided by the military that the detainees are fighters. Giving detainees access to lawyers, the administration contends, would disrupt their interrogations.

But lawyers for the detainees said the Constitution and the law gives their clients the right to a fair hearing to make the case that they are innocent of the accusations against them. They accused the executive branch of overreaching its authority. ''Even in wartime, America has always been a nation governed by the rule of law," said Padilla's lawyer, Jennifer Martinez. ''We simply ask this court to hold that, at a minimum, Congress would have to clearly and unequivocally authorize such a departure from our nation's tradition and that since Congress has not done so, Mr. Padilla is entitled to be charged with a crime and to have his day in court."

The fact that Congress has not explicitly given President Bush the authority to declare someone who is far from a conventional battlefield an ''enemy combatant" was a dominant theme in the day's arguments.

Deputy Solicitor General Paul Clement argued that Congress implicitly authorized the president to detain people he decided were combatants -- even US citizens inside the country -- when it allowed him to use ''all necessary and appropriate force" against the perpetrators of the 2001 terrorist attacks and those that harbored such organizations.

But the lawyers said that under a law passed 50 years ago to prevent events such as the World War II detention of Japanese-Americans, no US citizen may be held by the government without explicit Congressional authorization.

Illustrating the court's ambivalence, Justice Sandra Day O'Connor, who along with Justice Anthony Kennedy is often a swing vote, appeared impatient with Martinez's argument that because Congress has not acted, the court cannot allow the government to hold alleged terrorists.

''Well, that [explicit congressional authorization] would be, of course, perhaps desirable, but we're faced with a situation of the here and now, and what do we do?" she asked. ''Do we just turn loose a ticking time bomb?"

Martinez replied that Congress would step into the breach very quickly, to provide authorization and set up appropriate procedures for handling cases.

And O'Connor said several times that the Use of Military Force Authorization ''appears to authorize detention" because capturing enemy combatants to keep them from continuing to fight and to gain intelligence from them is a normal part of conducting a war. Chief Justice William Rehnquist also said that ''the authorization passed by Congress was quite broad."

But O'Connor also expressed reservations about allowing detention to continue in a war on terrorism that ''could last for 25 years, 50 years" without at some point letting a detainee make the case that he is innocent before a neutral decision-maker.

Clement acknowledged that for ''hard-core Al Qaeda operatives, the end of the war is a very difficult thing to perceive." But he said that for Hamdi, whom the government says was captured by the Northern Alliance while fighting with a Taliban unit, the end of the war might come sooner -- after the president or Congress decides that the war in Afghanistan is effectively over.

That assurance drew skepticism from Justice David Souter. ''It seems to me that your answer boils down to saying 'Don't worry about the timing question, we'll tell you when it's over,' " he said.

Frank Dunham, Hamdi's lawyer, said the military's regulations required giving his client a hearing.

Justice Stephen Breyer pressed Clement on why the government could not give Hamdi a battlefield hearing to determine whether he was in fact an enemy combatant or was just, say, an aid worker or someone forced into service against his will by the Taliban.

Clement spent about half his allotted 30 minutes in the Padilla case arguing that lawyers should have filed the case in South Carolina, where he is being held. Instead the case was filed in New York, where law enforcement authorities took Padilla before the military assumed control of his case.

If the court agreed that Padilla filed the case in the wrong district, it would have to start over, Martinez said afterward.