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Libertarians: Rulings narrow government's power

| Tuesday, June 29, 2004

By ruling that "enemy combatants" should receive their day in court, the U.S. Supreme Court dealt the Bush administration a setback, civil libertarians said Monday.

Supporters of the administration's efforts found sympathetic language in the rulings, too. They said the Supreme Court made clear that any judicial review of the status of potential terrorists should be deferential to the administration.

"Today's historic rulings are a strong repudiation of the administration's argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts," said Steven Shapiro, legal director of the American Civil Liberties Union.

Daniel Kanstroom, a professor at the Boston College law school and director of the International Human Rights Program, said the rulings do not definitively determine the nature of the judicial review.

Kanstroom filed a friend of the court brief in support of U.S. citizen Jose Padilla, arrested at O'Hare International Airport in Chicago, accused of plotting to blow up high-rise apartments in the United States and held by the government.

Kanstroom said Supreme Court justices seemed to envision detainee hearings akin to deportation hearings in which the accused doesn't have all the rights of a criminal defendant, but still is allowed "a right to be heard and the right to present evidence."

The rulings came in three cases. In Padilla's case, the Supreme Court ruled he had filed his petition for release in the wrong court. A 5-4 majority said he should have filed in federal court in South Carolina.

In another case, an 8-1 majority ruled that Yaser Esam Hamdi, a Saudi-born U.S. citizen seized in Afghanistan, could contest his detention in U.S. courts.

In a third case, the Supreme Court addressed the status of foreigners being held at the U.S. Guantanamo Bay Naval Base in Cuba. The court ruled 6-3 that federal courts have the jurisdiction to consider challenges to the custody of foreigners.

One of Padilla's lawyers, Donna Newman, said she was heartened by the rulings. "All we have requested is our day in court, and now it's quite clear from the Hamdi decision that we will get our day in court," Newman said.

Richard Klingler, a lawyer who filed friend of the court briefs supporting the administration in the Hamdi and Guantanamo cases for Citizens for the Common Defense, in Washington, D.C., said he was surprised "the court wasn't more attuned to its own precedent and the war powers interest that the (president) had invoked."

Richard Samp, chief counsel for the Washington Legal Foundation, a public interest law firm, found the rulings "a tactical setback for the government, not a major issue." He believes the justices will expect any judicial review "to be pretty deferential to what the government has to say."

The cases had brought a split between conservative political groups. The Cato Institute, a libertarian research organization in Washington, D.C., influential among conservatives, applauded the court's rulings.

"The Bush administration was seeking carte blanche to take people into custody and to keep the role of the courts severely limited, and the Supreme Court came back and said that's not the law," said Tim Lynch, director of Cato's project on criminal justice.

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