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Battlefield justice

"Battlefield justice" Continued...

Issue: "God and mammon," Jan. 14, 2006

Key in the dispute over domestic spying-and over the detention of terror suspects-is whether the actions of U.S. officers fall under President Bush's war powers or under the aegis of law enforcement. Also crucial is whether detainees are more correctly classified as criminal suspects, enemy combatants, or prisoners of war.

In papers filed with the Supreme Court Jan. 3, lawyers for suspected "dirty bomber" Jose Padilla raised both the domestic wiretap and detention issues. In 2002 Mr. Padilla, a U.S. citizen, was arrested on suspicion that he was part of a plot to blow up apartment buildings in New York, Washington, or Florida. Labeling him an "enemy combatant," authorities held him for three years before charging him last month with being part of a North American terror support cell.

In 2004, the Supreme Court heard Hamdi v. Rumsfeld, a case involving Yasir Hamdi, an American citizen whom U.S. forces captured in an Afghanistan combat zone with a gun in his hand. Mr. Hamdi's father had challenged the Pentagon's classification and detention of his son as an enemy combatant. A slim plurality of the court ruled in favor of the Defense Department, concluding that under the Authorization of Use of Military Force that Congress passed in the wake of the Sept. 11 terror attacks, President Bush did have the authority to detain a U.S. citizen. Still, Justice Sandra Day O'Connor wrote that Mr. Hamdi, as a U.S. citizen, should be given a meaningful opportunity to contest his detention before a neutral arbitrator. Justices David Souter and Ruth Bader Ginsburg dissented, concluding that Mr. Hamdi's detention was unauthorized.

"The Bush administration is concerned, and rightly so, that the judicial branch is not as deferential as it ought to be to the president in time of war," said Judicial Watch's Tom Fitton.

An Alito confirmation could change that. As a judge, he has shown great reluctance to second-guess prosecutors and law enforcement agencies, requiring plaintiffs to prove that officials made significant mistakes that may have prevented the just resolution of a case. Among 60 criminal appeals yielding published rulings in which Mr. Alito wrote, he sided with the defendant in only 12 cases. With cases like Mr. Padilla's headed for the high court-and an administration at least as committed to fighting terrorism as it is to fighting abortion-judiciary committee liberals will likely question Mr. Alito about that as well.

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