ACLJ Calls on Supreme Court to Follow Constitution and Permit President to Act as Commander-in-Chief in War on Terror - Not Hundreds of Federal Judges.

Business Editors

WASHINGTON--(BUSINESS WIRE)--April 26, 2004

The American Center for Law and Justice, which specializes in constitutional law, said today the U.S. Supreme Court should follow the Constitution and permit President Bush to act as Commander-in-Chief in the war on terror - not hundreds of federal judges. The Supreme Court will consider two cases regarding terrorism on Wednesday - both involving U.S. citizens who were taken into custody and are being held as enemy combatants in the war on terrorism.

"We are at a critical point in this country in determining who will run the war on terrorism - will it be the President as Commander-in-Chief - or will it be the federal judiciary with hundreds of federal judges across the nation - that's the question facing the Supreme Court," said Jay Sekulow, Chief Counsel of the ACLJ, which has filed amicus briefs with the Supreme Court in the terrorism cases. "The President as Commander-in-Chief must be permitted to exercise his constitutional authority in matters of war. And, the federal judiciary must not usurp that authority. The Supreme Court has a sound legal roadmap in these cases - it's the Constitution. It is our hope that the high court abides by the Constitution in these most critical cases."

The Supreme Court will hear two cases on Wednesday. In the first case, the court will be asked to uphold a federal appeals court decision that found the government acted properly in detaining Yaser Hamdi, an American citizen seized on the battlefield in Afghanistan - classified as an enemy combatant - and being held in the Naval Station Brig in Norfolk, Virginia.

The ACLJ brief in the Hamdi case contends that "enemy belligerents are detained, not based on probable cause or other important domestic constitutional principles, but because of their armed belligerency, capture, and continuing threat to American interests. Their detention, therefore, is preventive rather than punitive."

In asking the high court to uphold the decision of the U.S. Court of Appeals for the Fourth Circuit, the ACLJ brief concludes: "Hamdi's detention is pursuant to the President's well-established authority to detain an enemy combatant during wartime." Further, the brief asserts that "under the Constitution's allocation of war powers, neither Petitioner's status as enemy combatant, nor the fact of his detention are subject to judicial scrutiny. As the Fourth Circuit explained, 'Hamdi's status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framer's scheme.' To use Justice Goldberg's oft-quoted phrase, the Constitution 'is not a suicide pact.'"

In the second case to be heard on Wednesday, the Supreme Court will be asked to determine that President Bush acted appropriately when he made a decision to hold Jose Padilla, an American citizen seized on U.S. soil as a terrorism suspect, as an enemy combatant in a military brig in South Carolina.

The ACLJ brief argues that Padilla, who has been held since 2002 as a suspect in an alleged al-Qaeda plot to detonate a radioactive "dirty bomb" in the U.S., is an enemy combatant - not subject to the jurisdiction of U.S. courts.

The brief contends that the President, as Commander-in-Chief, has the "responsibility to formulate and implement policies to protect and defend the United States." And, the brief asserts that the President "needs and deserves the latitude to develop such policies without undue interference by the Judiciary which, in any case, lacks the competence to deal with such situations."

The ACLJ is asking the Supreme Court to overturn a decision by the U.S. Court of Appeals for the Second Circuit, which the ACLJ contends substituted its judgment for the President's in the Padilla case. The brief concludes: "It is the President who must determine the risks and benefits of national policy, not the courts, and it is in times of grave national crisis and danger that the courts must defer to the elected leaders to craft appropriate policies in the nation's interest. This is such a time."

The ACLJ briefs in both the Hamdi and Padilla cases are available online at www.aclj.org.

Last week, the Supreme Court heard oral arguments in a case involving Presidential authority to hold detainees at Guantanamo Bay, Cuba. The ACLJ also filed an amicus brief in that case.

The American Center for Law and Justice, which specializes in constitutional law, is based in Washington, D.C.