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Presidential Power, Tested

Attorney Andrew Cohen analyzes legal issues for CBS News and

One of the major themes of Wednesday's historic argument before the Supreme Court was whether Congress gave the president the power to unilaterally detain U.S. citizens like Jose Padilla and Yaser Hamdi when it gave the President the authority to go to war against terrorists.

As Justice Stephen Breyer hinted several times during the two hours of lively give-and-take, it's possible that both enemy combatant cases might hinge on what Congress meant when it gave the President the power on September 14, 2001, to use all "necessary and appropriate" force to wage this war.

The White House argues that it may detain the men indefinitely, without charges, and without offering them the ability to contest their confinement before a neutral judge.

Attorneys for the men argue that no President, even a wartime President, can order the indefinite detention of an American citizen without subjecting that detention to some sort of independent review, preferably by the courts. And so the phrase "necessary and appropriate" - in all of its typically-ambiguous legislative splendor - ends up being as good a tool as any to help explain the positions taken by the parties involved in the Padilla and Hamdi cases.

Wednesday's arguments mainly fell into the two camps of logic generated by the words "necessary" and "appropriate." And it's clear from the fascinating session that what is necessary isn't always appropriate and what is appropriate isn't always necessary.

For example, government attorney Paul Clement told the Justices Wednesday that the isolated detention of Hamdi and Padilla was necessary to ensure that the U.S. military maximized their value as intelligence assets. But the two lawyers for the men told the Court that it is appropriate in our system of justice to ultimately give all suspects an attorney and the right to confront the evidence against them.

Clement told the Court that it is necessary for the president to exercise war powers even as they relate to American citizens to the virtual exclusion of the other two branches. Hamdi's attorney, Frank Dunham, told those same Justices that under the Constitution it is appropriate for the federal courts to review all cases in which an American citizen is detained by the executive branch.

The White House argued that its detention policy is necessary to prevent future terror attacks. Dunham and Padilla's attorney, Jennifer Martinez, countered that the appropriate action would be to prosecute the men under our regular criminal justice system.

Clement said it's up to the White House to determine what is "necessary and appropriate" in the war on terror. The lawyers for the alleged "combatants" told the Justices that the courts should be able to interpret what Congress meant when it gave the President that authority.

The executive branch says the Supreme Court should have a "modest" but "continuing" role in evaluating the claims of men like Hamdi and Padilla. The lawyers for the men told the Justices that they should exercise power now because the law demands that the judicial branch act as a check upon the power of the executive.

It's never easy to discern which way the Court is leaning and it was especially hard on Wednesday. The Justices as a group seemed to accept the notion that the President is entitled to great deference in these matters.

There was very little hostile rhetoric directed from the bench toward Clement on the subject and, to the credit of the attorneys for Padilla and Hamdi, they, too, refused to personalize this conflict between the branches.

But this judicial deference, in itself, doesn't end the case for the White House because - not surprisingly - there appears to be a divide on the court about what that deference really means in this case.

Justice Antonin Scalia and Chief Justice William Rehnquist seemed to accept virtually all of the government's arguments. Justice Scalia, who was his usual inquisitive self during the arguments offered by the attorneys for Padilla and Hamdi, barely asked any questions of Clement.

As usual, Justice Clarence Thomas asked no questions at all but is a safe bet to vote with Scalia and Rehnquist, his two most conservative colleagues. Justices Ruth Bader Ginsburg, John Paul Stevens, Stephen Breyer and David Souter appeared most uncomfortable with the government's position and Justices Sandra Day O'Connor and Anthony Kennedy, as they often do, seemed to toggle back and forth.

What does this all mean? It's means that we are likely to see a 5-4 ruling on the merits of these cases and that your guess is as good as mine about which way the wind will blow.

It means we could see a split ruling between the cases, with Padilla faring better than Hamdi because the former was apprehended in Chicago while the latter on a battlefield in Afghanistan.

It also means we could see some sort of a compromise ruling here; a ruling that gives a little bit to both sides. For example, several of the "swing" Justices, including O'Connor and Kennedy, seemed particularly curious about the concept of requiring the military to provide some sort of formal proceeding for the men that would afford them their due process.

The way the Justices seemed to view it, that scenario would give the men what the Constitution requires them to have (the right to confront the evidence against them, the right to challenge that detention, the right to have a hearing before a neutral judge of some sort) but also would enable the executive branch to maintain control over the process (because the White House controls military operations).

It's clear from Wednesday's session that Hamdi and Padilla are not likely to get "their day in court" the way the rest of us would if we were accused of a crime. But it's also clear from the arguments that a majority on the Court isn't satisfied that they've gotten their just due.

By Andrew Cohen