Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

U.S. Is Allowed to Hold Citizen as Combatant
New York Times ^ | 1/08/03 | NEIL A. LEWIS

Posted on 01/08/2003 8:31:11 PM PST by kattracks


WASHINGTON, Jan. 8 — A federal appeals court handed the Bush administration a major legal victory today in ruling that a wartime president can indefinitely detain a United States citizen captured as an enemy combatant on the battlefield and deny that person access to a lawyer.

The case, which set up a stark clash between the nation's security interests and its citizens' civil liberties, may have expanded the power of the presidency as the three-judge panel ruled unanimously that President Bush was due great deference in conducting the war against terrorism.

The judges of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., said it was improper for the federal courts to probe too deeply into the detention of Yasser Esam Hamdi, a 22-year-old American-born Saudi who was captured on the battlefield in Afghanistan and is now imprisoned in a military brig in Norfolk, Va.

Lawyers for Mr. Hamdi challenged his detention, asserting that because he is a citizen he has the same constitutional rights as citizens in criminal cases, including the right to consult a lawyer and to question the reasons for his confinement.

The appeals panel said that to deprive any citizen of his constitutional protections "is not a step that any court would casually take."

Even so, in the opinion written by the circuit's chief judge, J. Harvie Wilkinson III, the panel said, "The safeguards that all Americans have come to expect in criminal prosecutions do not translate neatly to the arena of armed conflict. In fact if deference is not exercised with respect to military judgments in the field, it is difficult to see where deference would ever obtain."

Attorney General John Ashcroft called the decision "an important victory for the president's ability to protect the American people in times of war."

But Elisa Massimino, a director of the Lawyers Committee for Human Rights, said: "The court seems to be saying that it has no role whatsoever in overseeing the administration's conduct of the war on terrorism. That is particularly disturbing in the context of a potentially open-ended, as-yet-undeclared war, the beginning and end of which is left solely to the president's discretion."

The lawyers authorized by Mr. Hamdi's father to argue the case on his son's behalf are certain to seek a review from the Supreme Court, but there is no guarantee that the justices will take up the case.

The only other American citizen known to be held without charges is Jose Padilla, the so-called dirty-bomb suspect. Unlike Hamdi, who was captured on a battlefield in Afghanistan, Mr. Padilla was arrested at O'Hare International Airport in Chicago on suspicion of being involved in a terrorist plot to detonate a radioactive device. He is being held in a military brig in South Carolina.

Today's ruling may be the most far-reaching yet in a host of court cases brought on by the administration's efforts in the war against terrorism.

In one case, a federal district judge has upheld the administration's decision to hold about 600 prisoners at the Guantánamo naval base in Cuba, ruling that the laws of the United States do not apply there.

Other federal judges have ruled that the Bush administration could not hold hearings on immigration violations in secret and could not withhold the names of those arrested on such charges from the public. Those cases are making their way through the appellate courts.

The Hamdi case began with the narrow issue of whether the courts should be satisfied with a Defense Department official's two-page, nine-paragraph statement that offered a spare accounting of facts to justify the government charge that Mr. Hamdi has been properly labeled an enemy combatant.

Judge Robert G. Doumar of Federal District Court in Norfolk ruled in August that the declaration — made by Michael Mobbs, a special adviser to the under secretary of defense for policy — was not enough.

The appeals court reversed that finding today and went much further in defining the authority of the executive branch in wartime.

"The constitutional allocation of war powers affords the president extraordinarily broad authority as commander in chief and compels courts to assume a deferential posture in reviewing exercises of this authority," the panel found.

While courts are entitled to review detentions when asked, the panel ruled that, "courts are ill-positioned to police the military's distinction between those in the arena of combat who should be detained and those who should not."

The panel said it would be improper for the judicial branch to launch an exhaustive inquiry into the conditions of Mr. Hamdi's capture, as his lawyers had requested. To do so, the judges said, would require officers to travel back to the United States from across the globe. They said the conduct of the war should not be determined by litigation.

The appeals court did not go so far as to deny Mr. Hamdi the use of the writ of habeas corpus, a legal mechanism allowing people to challenge their detention, a position that might attract a Supreme Court review. Instead, the judges said the judicial inquiry had to be extremely limited.

Frank W. Dunham Jr., a federal public defender in Virginia who argued the case for Mr. Hamdi, had asserted that the defendant was entitled to challenge the accusations that he was an enemy soldier.

But the court said that since it was "undisputed" that Mr. Hamdi "was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there."

In addition, the judges rejected appeals by Mr. Hamdi's lawyers that they should consider whether the war was at an end. Such questions, the court said, were solely the province of the president and his military advisers.

The judges also rejected Mr. Hamdi's assertion that the Geneva Convention required the government to convene a tribunal to determine if he was a lawful or unlawful combatant. The panel said that only governments and diplomats could invoke the Convention, not individuals.

Judge Wilkinson ended the opinion with a reference to the casualties of the Sept. 11 attacks.

"It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day," he wrote. "Yet we speak in the end not from sorrow or anger, but from the conviction that separation of powers takes on special significance when the nation itself comes under attack."

Judge Wilkinson was joined on the panel by Judge William W. Wilkins and Judge William B. Traxler. Judge Wilkinson and Wilkins were appointed by President Ronald Reagan. Judge Traxler was first named to the bench by the first President Bush and elevated to the appeals court by President Bill Clinton.



TOPICS: Breaking News; Foreign Affairs; News/Current Events
KEYWORDS: copernicus3; hamdi
Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-63 last
To: Copernicus
The Supreme Court will not overturn the Court of Appeals decision. The lower court's decision is entirely in line with the Supreme Court's World War II decision in the Quirin case.

Your attempt to equate these cases with the mass murder of the Jews by Nazi Germany is both offensive and idiotic. The Law of War applies to "enemy combatants" only. Enemy combatants are not protected by the Constitution of the United States, or by the constitutions of any other nation. So said the US Supreme Court, sixty years ago.

They are protected only by the various Geneva Conventions (which we are following) and the Hague Conventions before them. This has abolutely NOTHING to do with "equal protection under the laws" in the US Constitution. It has absolutely NOTHING to do with the concept of "a living Constitution."

In my judgment, Bush should have dealt with John Walker Lindh exactly the same as President Roosevelt dealt with Bruno Haupt during WW II. The law has not changed one whit. President Bush could have done that, as he is doing with Hamdi. Please read the Quirin case, a unanimous (8-0) decision of the Supreme Court. Then you will have a clue as to the state of the law, and the fact that the US Constitution does not govern these cases. You are under a gross misconception to think that it does.

Congressman Billybob

Click for latest column on UPI, "Three Anti-Endorsements" (Now up on UPI wire, and FR.)

As the politician formerly known as Al Gore has said, Buy my book, "to Restore Trust in America"

61 posted on 01/12/2003 8:06:00 AM PST by Congressman Billybob
[ Post Reply | Private Reply | To 59 | View Replies]

To: Copernicus
"Can you be declared an "enemy combatant" if you are in possession of a small amount of prohibited drugs? "

Do you see that in the authorization?

"How about possession of prohibited ammunition? "

Do you see that in the authorization?

"The penalty at airports for any number of trivial offenses could become the foundation "

Do you see that in the authorization?


Of course not, and neither would a judge.
Which you would know, besides by using your own good sense, by reading the ruling.

62 posted on 01/12/2003 8:48:35 AM PST by mrsmith
[ Post Reply | Private Reply | To 60 | View Replies]

To: Congressman Billybob; mrsmith
Your attempt to equate these cases with the mass murder of the Jews by Nazi Germany is both offensive and idiotic

As you will, governments do what governments do.

We live in the Era of the Clinton Legacy after the ruling leadership in their collective wisdom wilfully refused to convict a sitting President of High Crimes and Misdeameanors.

Now we see the Judiciary join a game of pass the buck in two nearly identical cases with diametrically opposed results.

I am to believe the Bellilesian Argument that result B is more correct than result A because of a precedent set by the Dean of all American Socialists -FDR.

This court attempts to exorcise demons by first conjuring them and then acknowledging them, for example with a passing reference to Jose Padilla.

Another curious phrase which should alarm any American who has even briefly catalogued the growing usurpations of our Leviathan government would be this one:

because the conflict in which Hamdi was captured is waged less against nation-states than against scattered and unpatriated forces. We have emphasized that the " unconventional aspects of the present struggle do not make its stakes any less grave.

I will try to look on the positive side of this decision: Geraldo Rivera is known to be armed in combat zones where scattered and unpatriated forces engage in conflict.

Maybe he will be seized and detained as an enemy combatant and thus we will all be released from his incessant inane commentary.

Best regards,

63 posted on 01/12/2003 5:10:11 PM PST by Copernicus (A Constitutional Republic revolves around Sovereign Citizens, not citizens around government.)
[ Post Reply | Private Reply | To 61 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-63 last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson