Posted on 06/25/2002 11:51:26 PM PDT by JohnHuang2
ICHMOND, Va., June 25 — An appellate judge hearing one of the most closely watched cases pitting civil liberties against national security seemed favorable today toward the government argument that an American citizen can be held indefinitely without being charged with anything or represented by a lawyer.
The case involves Yaser Esam Hamdi, 21, who was born in Louisiana, reared in Saudi Arabia and captured on the battlefield in Afghanistan. Mr. Hamdi was sent to Guantánamo Bay, Cuba, until officials discovered he had been born in the United States, and then moved him to the naval brig in Norfolk, Va. He has been held there since April 5, not charged with any crime or allowed to see a lawyer, although a district court has appointed a public defender to represent him.
In oral arguments here before the United States Court of Appeals for the Fourth Circuit, J. Harvie Wilkinson III, the chief judge, appeared incredulous today at Mr. Hamdi's lawyer's assertion that his client — captured during battle and designated an enemy combatant — had any constitutional rights.
"What is unconstitutional about the government detaining that person and getting from that individual all the intelligence that might later save American lives?" Judge Wilkinson asked Geremy Kamens, an assistant federal public defender helping to represent Mr. Hamdi.
Mr. Kamens said the Constitution prohibited the indefinite detention of an American citizen, and Judge Wilkinson was quick to interrupt.
Was he suggesting that the government could not detain a citizen "who has taken up arms against America?" Judge Wilkinson asked in a voice that suggested he could not believe his ears.
Mr. Kamens argued that there was no evidence that Mr. Hamdi was actually an enemy combatant, but the judge came back at him.
Suppose an inquiry established that Mr. Hamdi was an enemy combatant and fought on the side of the Taliban and Al Qaeda against American forces, Judge Wilkinson said. "What is unconstitutional about the detention of that individual and trying to get intelligence from that individual over a period of time, during the course of hostilities, that would save American lives?"
The judge added that he knew of no previous cases that said it was wrong to interrogate an enemy combatant who had been captured on the battlefield.
"This has been done in every war that I know of," he said.
The sharp exchange seemed a preview of an argument likely to reach the Supreme Court in an escalating battle between the rights of American citizens and the power of the president to detain and interrogate enemy combatants while hostilities are continuing.
Judge Wilkinson and two colleagues were hearing an appeal by the government of a lower court ruling that ordered the Navy to give Mr. Hamdi unfettered access to the public defender. The hearing was conducted by teleconference, because the judges were dispersed. It was piped through speakers into the federal courthouse here, where reporters listened in.
The Fourth Circuit, one of the most conservative appellate courts in the country, could issue its opinion any time.
The government argued in papers filed last week that the lower court judge, Robert G. Doumar of Federal District Court, was trying to usurp the president's authority in a time of war and had acted improperly in providing Mr. Hamdi a lawyer before allowing the government to make its case.
The government's case was argued today by Paul Clement, deputy solicitor general, who said the courts should not second-guess the president's decision to hold Mr. Hamdi as an enemy combatant. The judiciary "can answer legal questions," Mr. Clement said, but further interference would not be "terribly helpful."
Judge Wilkinson, who asked to see the president's determination of Mr. Hamdi's status, which has not been made public, said the case posed serious separation-of-powers issues. But he was far more emphatic in his questioning of and declarations to the public defender.
Today's vigorous argument "underscores one of my basic problems with this case," Judge Wilkinson said. which is that it poses a number of difficult questions and the lower court appears not to have given them proper attention.
"How in the world could the district court have proceeded to decide all these questions and potentially pre-empt them by appointing counsel without even giving the government a chance to be heard?" he asked. "That's what I don't understand."
Mr. Kamens said the district court's appointment of a lawyer had nothing to do with the legality of Mr. Hamdi's detention, but Judge Wilkinson replied that the appointment of counsel was significant.
"If counsel is appointed," he said, "we are deciding, for starters, that someone who may well be an enemy combatant has a right to counsel, No. 1. That's a major issue.
"I don't know, for example, how counsel can be separated from access or indeed from the other rights in the criminal justice system. I don't know how you can appoint counsel without throwing into jeopardy the government's intelligence-gathering operation."
The government said, and Judge Wilkinson agreed, that intelligence-gathering could be disrupted because the introduction of a third party could break the atmosphere of trust that the government was trying to establish with the prisoner, particularly if the lawyer urged the prisoner to assert his rights against compelled self-incrimination.
Judge Wilkinson said the district judge's appointment of counsel had already "decided four or five mega issues without even giving the other side the chance to present its case."
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