April 28 (Bloomberg) -- U.S. Supreme Court justices questioned whether the Bush administration has the right to detain American citizens indefinitely as part of the war on terrorism by labeling them as ``enemy combatants.''

Several justices asked whether there was any limit on the government's ability to hold Yaser Esam Hamdi, who was captured with Taliban fighters in Afghanistan, and Jose Padilla, arrested in Chicago and accused of plotting to explode a radioactive ``dirty bomb'' in the U.S. The justices heard two hours of arguments on the cases today in Washington.

``Doesn't the court have some business intervening at some point if it's the Hundred Years' War or something?'' Justice Stephen Breyer asked administration lawyer Paul Clement.

The cases, scheduled to be decided before July, go to the heart of the Bush administration's strategy for combating al-Qaeda and other accused terrorists. It comes at a time when the administration is vying to stabilize the war in Iraq and still has 10,000 U.S. troops in Afghanistan.

Several justices questioned the practicality of offering a full-scale hearing to Hamdi, one of thousands of fighters captured by U.S. and allied troops in Afghanistan.

``Are we supposed to send a Gulfstream over there with 10 people who witnessed his capture?'' Justice Anthony Kennedy asked Hamdi's lawyer, Frank M. Dunham Jr. ``I mean, how does this work?''

Military Hearing?

Dunham told the justices that, at a minimum, the military should be required to convene a hearing that would give Hamdi a chance to argue that he wasn't waging war against the U.S.

``He has been held for over two years in the U.S. with no opportunity to be heard on the facts on which his detention is based,'' Dunham said.

Justice Sandra Day O'Connor asked Clement, the administration lawyer, whether Hamdi, 23, at least had a right to present his case to a ``neutral decisionmaker of some kind in the military.'' She asked: ``Is that so extreme that it should not be required?''

Clement said U.S. forces released 10,000 people captured in Afghanistan after determining they weren't a threat. Hamdi went through that screening process and acknowledged he had gone to Afghanistan to fight with the Taliban, Clement said.

``The interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake,'' Clement said.

Hamdi's attorneys say the Bush administration has violated his constitutional right to ``due process of law'' by holding him for 2 1/2 years without pressing charges, almost all that time without access to a lawyer.

Hamdi's Capture

A federal appeals court barred Hamdi from challenging his detention, saying the government had done enough by producing a statement from a Pentagon official describing Hamdi's capture.

The high court also is considering whether the government may hold Padilla, an American citizen detained in 2002 in Chicago after arriving on a flight from Pakistan. The government regards him as an al-Qaeda operative.

A different federal appeals court ruled that Padilla must be either charged with a crime, held as a material witness or released. The court concluded that the military lacks authority to imprison an American citizen who was seized on U.S. soil.

The Bush administration contends that Congress gave the president broad power to fight terrorism and that Bush has additional authority in his capacity as commander-in-chief.

Clement told the high court it shouldn't engage in ``judicial micromanaging'' of the president's handling of the war. He argued that the government needs to hold detainees to gather intelligence and prevent new acts of terrorism.

Congressional Authorization

Justice Antonin Scalia said Bush's commander-in-chief status ``doesn't mean he has the power to do whatever it takes to win the war.'' Earlier, Scalia had signaled skepticism of the detainees' case, suggesting that the congressional authorization implied that the president had the right to hold enemy fighters.

``Is it conceivable that he has the right to kill them but not detain them?'' Scalia asked.

The administration is also asking the court to throw out Padilla's case on procedural grounds. Clement said Padilla filed his so-called habeas corpus petition in the wrong federal court -- in New York rather than South Carolina where he is being held -- and improperly named Defense Secretary Donald Rumsfeld as the sole defendant.

Both Padilla and Hamdi are being held in a Navy brig in Charleston, South Carolina.

`Any American'

Padilla's attorney, Jennifer Martinez, said the Bush administration's position would give it the right to detain ``any American, anytime, anywhere.'' She said individuals shouldn't be held longer than 48 hours without charges in the absence of specific guidelines from Congress.

Chief Justice William H. Rehnquist pointed to a measure enacted by Congress a week after the Sept. 11, 2001, attacks, authorizing the president to use ``necessary and appropriate force'' against those behind the hijackings. Rehnquist said that authorization ``is quite broad'' and seemed to indicate the president could detain people.

The arguments were the last of the court's 2003-2004 term. The cases are Hamdi v. Rumsfeld, 03-6696, and Rumsfeld v. Padilla, 03-1027.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

Last Updated: April 28, 2004 17:10 EDT