Calling Chief Justice Rehnquist

Actor Brad Pitt reacts as he accepts the "Fight Club Award" at the Spike TV "Guys Choice" awards in Culver City, Calif., on Saturday May 30, 2009. AP

Andrew Cohen analyzes key cases and rulings for CBSNews.com and CBS News.


The Justices of the United States Supreme Court had better leave their cell phone and pager numbers with their clerks when they head off for summer break late next week. It is growing more evident by the day that they soon will be called upon to resolve, at least initially, the question of which branch of government-- the executive or the judiciary-- gets to classify American citizens as "enemy combatants" and thereby deprive them of many of their constitutional rights.

Although the Jose Padilla and John Walker Lindh cases have generated the most publicity when it comes to this controversial and foundational issue, the case of Yasser Esam Hamdi is the one rising most rapidly through the legal process. In fact, of all the monumental legal issues raised by the administration's legal war on terror, of all the cases brought or likely to be brought in courts of law across the country, the case captioned: Hamdi v. Rumsfeld et al. is likely to be the first case that makes it to full briefing and argument before the Supreme Court.

This week attorneys for Hamdi and the federal government filed appellate briefs before the 4th U.S. Circuit Court of Appeals on the issue of "enemy combatants." Because Hamdi remains held incommunicado in military custody, and because a trial judge involved in the case has twice ordered the government to provide Hamdi with access to his attorneys, the federal appeals judges are likely to act very soon on the briefs before them.

Once the three-judge appellate panel decides, the losing side is likely to quickly appeal to the full panel of the 4th U.S. Circuit Court of Appeals and, after that, the only next step up legal ladder is the High Court itself. Since time is of the essence, all of these courts are likely to expedite briefing and oral argument schedules. This is especially true if Hamdi wins at the next appellate level. It is conceivable that in a few weeks' time the issues now in dispute will be ripe for resolution by the Justices. And the sooner the Justices chime in the better off everyone will be. This is a vitally important legal question that needs to be answered as quickly as possible.

The administration contends that the president has the right and the authority under the Constitution to classify anyone as an "enemy combatant" during a time of war. That's essentially the whole ball game to Hamdi since the law is fairly clear that an enemy combatant-- think William Holden in "Stalag 17" -- isn't entitled to nearly the same rights, constitutional or otherwise, that the rest of us are entitled to. If the administration wins the argument over who gets to name someone an "enemy combatant" the rest of its strategy of detaining these folks indefinitely until it figures out what to do with them will be fairly easy to implement.

With that in mind, the Justice Department in its 4th Circuit brief contends that this function falls into the president's "core war powers" as Commander in Chief and that the courts -- including implicitly the United States Supreme Court -- must defer to that exercise of authority by the president. "Especially in a time of active conflict," the federal brief argues, "a court considering a properly-filed habeas action generally should accept the military's determination that a detainee is an enemy combatant."

In other words, the government argument goes, "trust us, we're with the military." Except that U.S. District Judge Robert G. Doumar so far hasn't been willing to deposit that trust with Hamdi's guards. At a minimum, you could say, Judge Doumar is willing to "trust but verify." He's ordered the military to make Hamdi available to be counseled by his lawyers, in private- a far cry from ordering his release or any other material remedy Hamdi might be entitled to as a citizen who has been held now for six months without facing charges. The "fundamental justice provided under the Constitution of the United States" requires the government to provide such lawyer access, the judge noted.

Hamdi's lawyers, meanwhile, contend that the government still has not offered any evidence in a court of law that would support its contention that Hamdi is, indeed, an "enemy combatant." The "Executive Branch of the Government does not have the authority," Hamdi's lawyers argue, "to detain an American citizen incommunicado, and to unilaterally withdraw from the courts the power to inquire into the propriety of his detention." Citing the administration's "breathless warning" that the trial judge overstepped his authority, Hamdi's attorneys say that their client, at a minimum, deserves to have counsel meet with him to prepare for an evidentiary hearing which would resolve the question of whether he is, indeed, an "enemy combatant."

The White House says Hamdi is an enemy. Hamdi's attorneys say "prove it." The White House says it's been proven to the administration's satisfaction. Hamdi's attorneys say that isn't good enough -- that the courts must ultimately decide such crucial issues which decide a person's liberty. That's why this case is careening toward the Supreme Court. And that's why the Justices had better not plan on an uninterrupted break before the first Monday in October.



A correction: Those of you scoring at home will note that this week's story about Yasser Esam Hamdi is remarkably similar to last week's story about Yasser Esam Hamid. That's because Hamdi and Hamid are the same fellow. The transposition of the last two letters of his last name is my fault and I apologize for any confusion this may have caused.
  • Bootie Cosgrove-Mather

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