U.S. Is Allowed to Hold Citizen as Combatant

New York Times ^ | 1/08/03 | NEIL A. LEWIS

[kattracks]

ASHINGTON, 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.

[jwalsh07]

Your fears are misplaced.

The powers are granted by the Constitution.

There are 286,000,000 American citizens and three of them were scumbags who betrayed their country. In George Washington's day, they would have been hung.

Hamdi is an enemy combatant, his citizenship is moot. He chose to be an enemy combatant. Screw him.

If a future President begins jailing his politcal foes because of their ideology then that becomes a political question and if it gets bad enough then you lock and load.

[Right_in_Virginia]

"If a future President begins jailing his political foes because of their ideology then that becomes a political question and if it gets bad enough then you can lock and load."

Well, don't I feel better [/sarcasm]

[jwalsh07]

Well, don't I feel better

It doesn't matter how you feel. The Constitution is clear on the separation of powers and the CIC's powers during war time.

The courts have been clear since Ex-Parte Quirin on the status of enemy combatants be they "citizens" or not.

You can worry about Hillary Clinton until the cows come home. Hamdi is an enemy combatant and he's staying in the stockade until Bush says the war is over.

Personally, I think he should be vacationing in Gitmo with his fellow jihadists but hey, I can live with the stockade or the brig.

[Bob J]

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[Right_in_Virginia]

"It doesn't matter how you feel. The Constitution is clear on the separation of powers and the CIC's power during war time."

Can't argue with your statement.

But, can you tell me upon whom war has been declared...and when we know it is won? Can you define to whom these extraordinary war powers can be applied and for how long they can be enforced?

Here's my fear: ~ What's to prevent Hillary! (or whomever) from saying that war continues...and as such~ so does her "Constitutional right" to enforce her "wartime" powers to imprison without a glance toward the Bill of Rights?

I trust George W. Bush.

But shouldn't we pay attention to who else we may be handing such broad powers?

[okie01]

The Times cannot plead mere ignorance.

They know about Quiren.. They just don't want their readers to know it, too.

To have acknowledged Quiren would have negated this precious little distortion...

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...

[okie01]

"I don't want to see these powers in the hands of a President Hillary! Clinton or anyone who thinks and acts as she does."

Since when did the presence (or absence) of a law keep the Clintons from skirting the law or abusing their authority? They did what they wanted, whether the law was on their side or not.

To lawbreakers, laws are no obstacle. Only the lawful are constrained by the law.

The best way, the only way, to protect the country from such abuse is to elect political leaders of character -- people who can be trusted with the power of office.

Ergo, no more Clintons!

[Congressman Billybob]

Contrary to what the New York Times says in this article, this is NOT a new decision. It is NOT an expansion of Presidential power. The Law of War was well established before the United States was a gleam in Sam Adams' eye.

That's all this decision is all about.

Congressman Billybob

[Right_in_Virginia]

"Ergo, no more Clintons!"

Promise?

[alpowolf]

My eyesight is fine. Bolding is not necessary.

I do not agree that the President always has the authority to throw any American citizen in a military prison, for no reason, without judicial review, forever. Please cite the article of the Constitution giving him this authority.

Of course, he does have the power; power is not the same as authority. And of course past Presidents have abused power. This does not make it right.

This Law of War you speak of applies to nation-states. Surely you can see the danger of applying it to a "War on Terror" against no clearly defined enemy that will surely never end. Can you name a politician likely to become President that will ever surrender this kind of power?

This decision will be cited by whichever President decides to use it to make people he/she doesn't like disappear. We are going to have to decide if we want to live in a free republic, or a banana republic.

[alpowolf]

They did what they wanted, whether the law was on their side or not

So the solution is to put the law on their side? To set up the federal agencies to enforce their despotic rule? What sort of logic is that?

No more Clintons? Can you guarantee that? Our Constitution was wisely constructed based on the reality that there is no way to stop corrupt people from getting into office. Shredding the checks and balances established by that Constitution is nothing but blind acceptance that "Comrade Napoleon is always right".

[Copernicus]

The Law of War was well established before the United States was a gleam in Sam Adams' eye.

You can number me among the confused regardless of the New York Times interpretation.

Has the United States Congress declared war and extended war powers to the Chief Executive?

How can the War on Terrorism be distinguished from the War on Drugs or the War on Poverty?

Is it the War on Terroism or the War on Drugs or the War on Poverty that forbids citizens from traveling with more than an arbitrary amount of cash(especially through airports);can be relieved of that cash without judicial review or due process;or even presumes guilt until innocence is established with an extensive strip search? (especially through airports)

Is the charge of "enemy combatant" established when a citizen is seized on a battlefield or when he/she is sitting in a domecile?

Will the charge of "enemy combatant" be applied equally to Earth First! Arsons; IRS Tax Dissidents; Militias;or political incorrect websites?

In short will I be an "enemy combatant" if I am traveling through Tennessee with my wife, child and dog and subject to a felony stop and the gratuitous execution of a family pet?

Any number of bows and ribbons will not change the fact the Bush Administration is little more than the third term of the Clintigula Administration.

"Read my lips: No New Tyranny" seems to be the motto of Bush43.

Best regards,

[Congressman Billybob]

Yes, I can "name a President who surrendered this kind of power." His name is Thomas Jefferson. And he did not surrender the power. Congress took it away from him, as Congress has done with respect to all declared wars in history -- except the Korean War which is not ended, but only is a "truce."

The War Against the Babary Pirates was declared in almost identical fashion to the War Against Terrorism. Those and several other declarations were quoted in my United Press International article on 19 September, 2002, and also posted on FreeRepublic. The Barbary Pirate War ended with two peace treaties, submitted by the President and approved by the Senate. This war will end the same way.

Please do your homework. Read the declarations of war and the histories, both of which have already been posted on FR. Then you will understand the constitutional legitimacy of the current declaration of war.

Congressman Billybob

Click for latest column on UPI, "Incision Decision in the Senate" (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"

[Congressman Billybob]

You are buying into the bad reporting by the New York Times. These powers are not "new." Exactly the same powers were given to President Jefferson to deal with the Barbary Pirates, and then taken away when the two Peace Treaties to end that war, were approved by the Senate.

Do your homework. Read the history.

Congressman Billybob

[Congressman Billybob]

This does not "shred the checks and balances." You, too, are buying into the bad reporting by the Times. Congress gave President Jefferson the same powers to deal with the Barbary Pirates, and then took them away when that war was won.

Do your homework. Read the histories. All this has been posted on FR before. The Constitution is being obeyed, not destroyed.

Congressman Billybob

[alpowolf]

I did not say "name a President who surrendered this kind of power" I said "Can you name a politician likely to become President that will ever surrender this kind of power? " In other words who is today's Thomas Jefferson? Likewise consider today and tomorrow's Congress not that of Jefferson's day.

I will indeed review the history of the mentioned War Against the Barbary Pirates to see if President Jefferson was given the authority to jail American citizens without judicial review.

You didn't actually cite the Constitution but rather Congress. Not the same thing.

The only other thing I can add is that just because a Congress in the past has done something does not automatically make it right or even legal. Getting away with a crime does not validate it.

[alpowolf]

Bypassing the judicial branch is shredding a check/balance. The concurrence of the legislative branch does nothing to change that.

[alpowolf]

Bypassing the judicial branch is shredding a check/balance. The concurrence of the legislative branch does nothing to change that.

[mrsmith]

There was judicial review- the 54 page ruling that is the subject of this article.

This ruling itself says that there must be judicial review of any detentions.

You really should read the ruling.

[AmishDude]

Even more outrageous is the fact that we hand out US citizenship to any child born in the US to parents who are only temporarily in this country. I think that children born to non-citizens who are not in this country on immigration visas should be considered as citizens of the parents' country, not the US.

Unfortunately, you've got to pass a constitutional amendment. I believe it's the 14th amendment -- designed to give citizenship to the former slaves -- that was written so poorly that later courts ruled that anyone born on US soil became a US citizen.