The U.S. Supreme Court has decided to take up another case that touches on whether aspects of the Bush administration's war on terror violate the Constitution. Specifically, the court will examine whether an American arrested on U.S. soil and declared an enemy combatant can be held indefinitely without trial.
The nation's highest court will hear the case of Jose Padilla, a convert to Islam who was arrested two years ago after returning to the United States from Pakistan. The government alleged he was part of an al-Qaida plot to explode a so-called dirty bomb, a device designed to spread low levels of radiation. Jailed in South Carolina, he along with hundreds of foreigners being detained at a U.S. base in Cuba have been declared enemy combatants and threats to U.S. national security.
Now, the Supreme Court will decide whether the powers of the president to protect the nation from attack during wartime extend to denying an American arrested on U.S. soil the constitutional right to due process. Supporters say a wartime president does have that power, but many legal analysts and human rights advocates call detentions without trial unconstitutional.
The Supreme Court has already agreed to take up a similar challenge filed by Yaser Hamdi, an American captured not in the United States but on the battlefield in Afghanistan. He as well has been declared an enemy combatant.
But it could be that the court views the Padilla case differently because he was arrested here in the United States and not abroad. "I think it's a distinction without a difference," said former Reagan administration Justice Department attorney David Rivkin, who is among those who believes the government has the right to detain enemy combatants indefinitely.
"In both instances, they're American citizens, in both instances they're enemy combatants and in both instances they were involved in activities that ultimately constitute an armed struggle or armed conflict against the United States. Given the fact that all of the September 11, 2001 activities occurred on U.S. soil, it seems to be paradoxical to argue that the battlefield is not here."
But Jamie Fellner of Human Rights Watch rejects that argument. "Is the war on terrorism in the United States really a 'war' in which the president can simply act as commander in chief and do whatever he wants with anybody he labels an enemy combatant?" she asked. "Or, do criminal laws have to be used and the protections that the law provides under the system be used?"
In addition to reviewing the Padilla and Hamdi cases, the Supreme Court has also decided to hear legal challenges filed on behalf of hundreds of foreign-born enemy combatants being held in Cuba. Rulings are expected by July.