Washington — President George W. Bush has trampled on the most fundamental rights of U.S. citizens by jailing indefinitely those considered ''enemy combatants'' and denying them basic legal protections, the U.S. Supreme Court was told yesterday.
Two American citizens -- one captured on an Afghan battlefield and the other arrested at Chicago's O'Hare airport -- are being held as enemy combatants in solitary confinement in U.S. naval brigs. The Bush administration contends that the President's special powers as a wartime leader allows the men to be held without charge, or even a court hearing.
"Never before in history has this court granted the President a blank cheque to do whatever he wants to American citizens,'' lawyer Jennifer Martinez told the court, arguing on behalf of Jose Padilla, who was arrested two years ago in Chicago on suspicion of plotting to explode a radioactive bomb.
Arguing for the government, Justice Department lawyer Paul Clement said, "It has been well established, and long established, that the government has the authority to hold unlawful enemy combatants . . . to prevent them from returning to the field of battle."
But in a war without a definable end, that could mean indefinite detention for those considered enemies. The Bush administration insists that U.S. citizens still have their full constitutional protections and civil liberties, except those who fight for the still undefined, and stateless, enemy known as international terrorism.
In their questioning, several judges seemed concerned about the lack of limits to detention. Could the detention "last 25 or 50 years?" Justice Sandra Day O'Connor asked.
"I was taken aback by how deferential the court was to the needs of the President to act [with extraordinary powers]," said Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland, who has closely followed several cases before the top court that test presidential war powers.
Other judges grilled the lawyers for Mr. Padilla, who was born and raised in Chicago, and Yaser Hamdi, who was born in Louisiana but grew up in Saudi Arabia.
Mr. Hamdi was captured in Afghanistan in 2001 and, like hundreds of other suspected Taliban and al-Qaeda fighters, was held first in that country and then at the U.S. base in Guantanamo, Cuba. When it was discovered he is an American citizen, Mr. Hamdi was taken to the United States.
The court is expected to rule by the end of June on these two cases and another one concerning the rights of foreigners held at Guantanamo. It has opted not to consolidate the Padilla and Hamdi cases, which some observers believe indicates the judges may feel there are differences between the inherent rights of a U.S. citizen arrested in the United States and one captured on a foreign battlefield.
"How does the government justify some going through the criminal process and some being held indefinitely?" Justice Ruth Bader Ginsburg asked. She was referring to the differences in treatment of Mr. Padilla and Mr. Hamdi compared with that of Zacarias Moussaoui, a non-American arrested in the United States and charged in the Sept. 11, 2001, attacks, and John Walker Lindh, an American captured in Afghanistan while fighting with the Taliban. Those two were charged under the U.S. criminal justice system.
Almost nothing is known about the detention of Mr. Padilla and Mr. Hamdi, or the allegations against them. Mr. Padilla, a onetime Chicago gang member, converted to Islam and in 1998 moved for a while to Egypt. He is alleged to have been involved in scouting for an al-Qaeda plot to detonate a so-called "dirty bomb" in an unspecified U.S. city.
Mr. Hamdi was turned over to U.S. troops after being captured by Northern Alliance soldiers in Afghanistan.
In another anti-terrorism development yesterday, a Spanish judge indicted a Moroccan fugitive sought in connection with the Madrid train bombings on charges of helping to plan the Sept. 11, 2001, attacks -- the first suspect linked to both attacks.
Amer Azizi, 36, helped organize a meeting in northeast Spain in July, 2001, at which key plotters in the U.S. attacks, including suicide pilot Mohamed Atta, finalized details for the attacks, Judge Baltasar Garzon said in the indictment.
It alleges that Mr. Azizi, who fled Spain in November, 2001, provided lodging for people who attended a July 2001, meeting in the Tarragona region of Spain and acted as a courier, passing on messages between plotters.
Spain has identified Mr. Azizi as a suspect in the March 11 bombings in Madrid, which killed 191 people, but no warrant has been issued for his arrest.
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