Who Made George W. Bush Our King?He Can Designate Any of Us an Enemy Combatant

Courts have no higher duty than protection of the individual freedoms guaranteed by our Constitution. This is especially true in time of war, when our carefully crafted system of checks and balances must accommodate the vital needs of national security while guarding the liberties the Constitution promises all citizens.

—Fourth Circuit Court of Appeals judge Diana Gribbon Motz, dissenting, Hamdi v. Rumsfeld, July 9

Some of the most glorious illuminations of the Bill of Rights in American history have been contained in Supreme Court dissents by, among others, Louis Brandeis, William Brennan, Hugo Black, and Thurgood Marshall. Equal to those was the stinging dissent by judge Diana Gribbon Motz when the Fourth Circuit Court of Appeals (8 to 4) gave George W. Bush a fearsome power that can be found nowhere in the Constitution—the sole authority to imprison an American citizen indefinitely without charges or access to a lawyer.

This case is now on appeal to the Supreme Court, which will determine whether this president—or his successors until the end of the war on terrorism—can subvert the Bill of Rights to the peril of all of us.

Judge Motz began her dissent—which got only a couple of lines in the brief coverage of the case in scattered media reporting—by stating plainly what the Bush administration has done to scuttle the Bill of Rights:

"For more than a year, a United States citizen, Yaser Esam Hamdi, has been labeled an enemy combatant and held in solitary confinement in a Norfolk, Virginia, naval brig. He has not been charged with a crime, let alone convicted of one. The Executive [the president] will not state when, if ever, he will be released. Nor has the Executive allowed Hamdi to appear in court, consult with counsel, or communicate in any way with the outside world."

I have not seen what I am about to quote from her dissent anywhere in the media. You might want to send what follows to your member of Congress and senator. Judge Motz said accusingly:

"I fear that [this court] may also have opened the door to the indefinite detention, without access to a lawyer or the courts,of any American citizen, even one captured on American soil, who the Executive designates an 'enemy combatant,' as long as the Executive asserts that the area in which the citizen was detained was an 'active combat zone,' and the detainee, deprived of access to the courts and counsel, cannot dispute this fact." (Emphasis added by NH).

As I have detailed in two previous columns ("A Citizen Shorn of All Rights," Voice, January 1-7, 2003, and "Liberty's Court of Last Resort," Voice, January 29-February 4, 2003), Hamdi was taken into custody by the Northern Alliance in Afghanistan, and then declared an "enemy combatant" by order of George W. Bush on the flimsiest of "evidence" that he had been a soldier of the Taliban—an accusation that Hamdi has not been able to rebut in a court of alleged law.

Judge Motz is not engaging in scare tactics when she says that with the president having assumed the powers of an absolute monarch, in this kind of case, any American citizen can be hauled off an American street and stripped of all his or her rights. On June 5, Attorney General John Ashcroft unequivocally told the House Judiciary Committee that the streets of America are now "a war zone."

Furthermore, The Washington Post—in a July 13, 2002, lead editorial, a year before the Motz Fourth Circuit dissent—warned of the increasing tendency of the courts to defer to the dangerously overreaching executive branch:

"FBI Director Robert Mueller has said that a sizable number of people in this country are associated with terrorist groups, yet have so far done nothing wrong [so] there is therefore no basis to indict them. How many of them, one wonders, might the government [by bypassing the courts] hold as enemy combatants? And how many of them would later turn out to be something else entirely?"

But how much later would these innocent citizens—locked away until the war on terrorism is over—be let out?

This is an unprecedentedly serious assault, folks, on the core of our system of justice. As Judge Motz said in her passionate dissent, "[This court's] decision marks the first time in our history that a federal court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the Executive's designation of that citizen as an enemy combatant, without testing the accuracy of the designation. Neither the Constitution nor controlling precedent sanctions this holding." (Emphasis added by NH).

As for the government's "evidence" that Hamdi is an enemy combatant, Judge Motz emphasizes that all the Defense Department offered is a two-page, nine-paragraph statement by Michael Mobbs, a special adviser for policy in the Defense Department. The buck stops with Donald Rumsfeld.

As Judge Motz points out, the majority of the Fourth Circuit, in its "breathtaking holding" relying on the Mobbs declaration, ruled that it is "undisputed" that Hamdi was captured in a zone of active combat. This, she charges, is "pure hearsay . . . a thin reed on which to rest abrogation of constitutional rights, and one that collapses entirely upon examination. For Hamdi has never been given the opportunity to dispute any facts."

Before this case reached the Fourth Circuit, it was heard in Federal District Court—with Hamdi unable to be present or to communicate at all with his public defender, Frank Dunham, who therefore could not contest the Mobbs declaration. Nevertheless, Judge Robert Doumar, a Reagan appointee, scathingly demolished the government's "evidence."

"A close inspection of the [Mobbs] declaration reveals that [it] never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban. . . . Is there anything in the Mobbs declaration that says Hamdi ever fired a weapon?" (Emphasis added by NH.)

In the January 9 New York Times, Elisa Massimino of the Lawyers Committee for Human Rights exposed an earlier decision by a panel of the Fourth Circuit to bow to Bush and to continue the stripping of Hamdi's citizen's rights. "[The Fourth Circuit] seems to be saying that it has no role whatsoever in overseeing the administration's conduct of the war on terrorism . . . the beginning and end of which is left solely to the president's discretion."

Now, the full Fourth Circuit bench has handed George W. Bush the crown that George Washington disdained. What if the Supreme Court agrees? Bush will be King George IV.

And the evidence for that is?

It is forthcoming, we assume. Actually, he was taken into custody. No one has proven he fired on American troops. But if he was armed and in the presence of enemy troops, that's pretty compelling evidence alone.

At any rate, such is the assumption in BushCo declaring him an 'enemy combatant'. Combatants are, generally speaking, engaged in combat.

We'll see if they can prove their case.

I don't believe that the Geneva Convention applies to Hamdi, and neither does the US Government. The position that the administration is taking is that Al Qaeda terrorists in Aghanistan are not enemy combatants because they were not fighting for the legitimate government in Afghanistan. The Taliban was nothing but thugs.

The war against terrorism will probably not be over in our lifetimes. By your logic, Hamdi can be detained forever.

There are countries in the world where people may be detained forever without contact with their lawyers or their family or the judicial system but America has never been one of them, until now.

Hamdi has been denied judicial review of the facts in the case.

The facts of the case have been presented to the district judge in Virginia. The question is, who has the constitutional authority to identify Hamdi as a enemy comatant, a judge in Virginia or the boots on the ground and their CIC. Constitutional law gives great deference in that respect ot the CIC which is why the fourth circuit keeps whacking the judge in Virginia.

His lawyer has not been able to meet with him in order to present his version of the facts.

That's correct and perfectly constitutional until hostilities cease in Afghanistan.

The case is going forward on the pleadings.

Hopefully Hamdi loses and is eventually tried by a military tribunal for treason.

Then you should read the IV Geneva Convention regarding same. Part 1 , Article 5 speaks to saboteurs and spies, unlawful combatants and the ability of states to hold them incommunicado until hostilities cease.

The war against terrorism will probably not be over in our lifetimes. By your logic, Hamdi can be detained forever.

By my logic, Hamdi's forever would be much shorter than that. However, constitutionally speaking, keeping Hamdi in the stockade for the duration of hostilities in Afghanistan is a no brainer consistent with 227 years of American history.

There are countries in the world where people may be detained forever without contact with their lawyers or their family or the judicial system but America has never been one of them, until now.<

BS. Argue the facts or don't argue. The violin section is two blocks left.

Your equating Hamdi with a common criminal is bereft of logic and honesty.

And by the way, if the Bush administration is sou out of control and stomping on the feet of our civil liberiteis why is it that only two traitors, Padilla and Hamdi, have been denied there so rights?

I am not the one who argues that Hamdi isn't an enemy combatant. It's the official position of the administration vis-a-vis the men held in Gitmo. You could look it up.

I have great respect for Bush and Ashcroft, but I don't believe that they are perfect and incapable of mistakes. My personal opinion is that they've made a mistake.

I have no doubt that the SCOTUS will review and I will be interested to see what they say.

. . .and Nat is a Liberal of the highest order. . .probably an admirer of Stalin as well; for sure Fidel . . .

You should attempt to have a casual grasp of the facts, before blathering your opinions.

Having interviewed Cubans who survived Castro's gulags, I have never understood or respected the parade of American entertainers, politicians and intellectuals who travel to Cuba to be entranced by this ruthless dictator who, for me, has all the charisma of a preening thug, akin to any killer on "The Sopranos."

These Castro-philes are among those who discredit liberalism because they're unable to recognize and be repelled by unbridled evil.

- Nat Hentoff - I still think of Elian

He also regularly cites the embrace of Stalin (along with Mao) by liberal America has another example of their blindness towards obvious evil.

". . .you are right and he is not even an admirer of Fidel; I stand corrected; I was confusing him with someone else. Hentoff stands closer to the new 'tradition' of Chris Hitchens et al. . ."

from my post #45 to B.Knotts; correcting my post of #20 to JimKress. . .

but will say it again; Sorry; I made a 'mistake of identity'; and I did correct it. . .but there are no erasures on FR :%)

I don't worry about Bush abusing this system, but it is open to abuse and set up like the U.N. has set up it's kangaroo Court.

The Patriot Act will be abused eventually, given Bill Clintons use of the IRS to attack his enemies, I don't see Hillary having a problem using the Patriot Act to do the same.

The alarms went off for me because of the manner in which it was rammed through the congress and senate neither of which were presented the Bill to read until after they voted to approve it. Then the sirens began to sound when someone finally did get around to reading it and found out that congress and the public were lied to. The worse and most invasive parts of the Patriot Act do not sunshine in four years or in four hundred years.

In the past, in times of war, things were instituted temporarily for the security of the nation, and one could look at the Patriot Act as being one of those things that will be cast aside when the need to keep terrorist from using our rights and priviledges against us to escape justice or that will enable them to carry out their attacks is a thing of the past.

But why the lie? Why say it's temporary when it's not? And why is it set up like the U.N. has set up it's court? And why did the government only protect elected officials and military from the U.N. court while leaving the ordinary citizen still in danger of finding themselves under the authority of the U.N. court?

Lots of questions, no answers, I'm glad someone is taking a look at this mess. We should expect the congress to repeal it and replace it with something that actually does sunshine as advertised.

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