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.

[alpowolf]

The case is not a judicial review of the charges against Hamdi (are there any charges?), but rather a ruling on whether he is entitled to the Constitutional rights of a citizen. Clearly this court does not think so.

[Poohbah]

Everyone says "read the original intent of the authors." The problem is very simple: the original intent of the authors is found in the wording they used.

The 14th was drafted in haste to be regretted in leisure. (I'm not against the basic concept, but they should've more tightly worded the thing.)

[Congressman Billybob]

You still misunderstand the point. Read the current decision, or read the Quirin decision, take your pick. Since Congress adopted the Law of War into the US Code in 1789, neither the Courts nor the Constitution have anything to do with the conduct of a war, EXCEPT FOR the requirement that war requires the assent of the people as expressed by Congress.

You assume that every issue, no matter what it is, somehow belongs in court. Someone who is a conservative, and reads and respects the Constitution, should realize that certain issues DO NOT belong in court. This is one of them. So says the Supreme Court during World War II, and this Appeals Court, now.

Don't take my word for it. Read and learn from the original documents.

Congressman Billybob

[AmishDude]

Oh, no question. Plain reading of the amendment leads to the interpretation that any person born on US soil is a citizen. This was, of course, not the intent, but I am of the "plain language" school anyway. An amendment allowing Congress to determine qualifications for citizenship would solve the problem.

[Mo1]

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[mrsmith]

No, it is a habeas corpus petition which is what Hamdi is guaranteed by the Constitution.

The court has judicially reviewed his petition and decided that he is an enemy-combatant and should be treated as such under the Constitution.

This thread has a link to the decision and some commentary by freeper lawyers: HERE

[alpowolf]

I'll check that out, thanks.

[alpowolf]

Despite your condescending attitude I did read the decision and I do understand the point you're making. I only tried, in my original comment, to point out the obvious danger of this course. To use another example, I don't agree with the 9th Circuit's holding that the 2nd Amendment is a "collective" right either. I realise that nowadays citizens are expected to not ever question the govt. I just refuse to go along.

[Copernicus]

I've tried to compare and contrast and I remain confused:

Yaser Esam Hamdi

John Walker Lindh

Best regards,

[Right_in_Virginia]

"These powers are not "new".

Do your homework. Read the history."

The powers may not be new.

But the war they apply to certainly is--- and that was my point.

Please tell me how and when we know it's time to end the Executive Branch's wartime powers.

Who'll be signing the peace treaties?

[Copernicus]

Greetings!

It appears everyone has run off elsewhere to discuss the meaning of the word "is".

Maybe you can help me out. Here are relevant passages from the Lindh Criminal Complaint and the Hamdi Detention.

They appear similiar to me.

Lindh:

. According to Walker, he was accepted to al-Qaeda and sent to a Bin Laden guest house in Kandahar for several days. Thereafter, Walker was transported to the al-Farooq camp, arriving on or about June 1, 2001. Within the first several weeks of his arrival there, in or about early June 2001, Walker learned from one of his instructors that Bin Laden had sent people to the United States to carry out several suicide operations. Walker remained at the camp for the duration of the seven week training course, which included courses in weapons, orienteering, navigation, explosives, and battlefield combat. During the weapons training, Walker used shoulder weapons, pistols, and rocket propelled grenades ("RPG"). During the explosives training, Walker used grenades and constructed Molotov cocktails. Walker reported that Bin Laden visited the camp on three to five occasions and gave lectures on "the local situation, political issues, old Afghan/Soviet battles, etc." On at least one of those occasions, Walker and four other trainees met with Bin Laden for approximately five minutes, during which Bin Laden thanked them for taking part in jihad. Walker also stated that, during his training he was offered several options. The first option was to continue training at al-Farooq or at one of Bin Laden's many other camps in Afghanistan, including at Kandahar, Kabul, Khost, and Jalalabad in courses such as artillery, explosives , poisons, intelligence, and terrorist tactics. Another option offered Walker was to go to the front lines and fight the Northern Alliance. Walker also stated that, during his training at al-Farooq, he met with Abu Mohammad Al-Misri, an Egyptian whom Walker understood to be the general manager of the training camps. Al-Misri asked Walker, as well as other foreigners training at the camp, whether he was interested in traveling outside Afghanistan to conduct operations against the United States and certain Israeli targets. (4) Walker declined the offer and chose instead to go to the front lines to fight. 10. Walker further stated that, after completing his al-Qaeda training, Walker was issued an AKM rifle and sent to Kabul with approximately 30 other mujahideen. Walker carried the rifle with him while, together with approximately 150 fighters, Walker made his way from Kabul to the front line in Takhar. Walker's group rotated in two week shifts in the Takhar trenches defending against Northern Alliance attacks. During this time, Walker's AKM rifle malfunctioned, and he was reissued a new rifle and he carried that as well as two grenades along the front line. Walker also stated that, on September 11 or 12, he learned about the terrorist attacks in Washington and New York by radio. According to Walker, it was his and his comrades' understanding at the time that Bin Laden had ordered the attacks and that additional attacks would follow.

Hamidi:

In addition to stating that Hamdi has been classified as an enemy combatant, the Mobbs declaration went on further to describe what the government contends were the circumstances surrounding Hamdi's seizure, his transfer to United States custody, and his placement in the Norfolk Naval Brig. According to Mobbs, the military determined that Hamdi "traveled to Afghanistan in approximately July or August of 2001" and proceeded to "affiliate[] with a Taliban military unit and receive[] weapons training." While serving with the Taliban in the wake of September 11, he was captured when his Taliban unit surrendered to Northern Alliance forces with which it had been engaged in battle. He was in possession of an AK-47 rifle at the time of surrender. Hamdi was then transported with his unit from Konduz, Afghanistan to the Northern Alliance prison in Mazar-e-Sharif, Afghanistan and, after a prison uprising there, to a prison at Sheberghan, Afghanistan. Hamdi was next transported to the U.S. short term detention facility in Kandahar, and then transferred again to Guantanamo Bay and eventually to the Norfolk Naval Brig. According to Mobbs, interviews with Hamdi confirmed the details of his capture and his status as an enemy combatant.

Best regards,

[Congressman Billybob]

All wars are "new." No war is ever a repeat of any prior war.

Treaties now, like treaties throughout history, are signed by the Executive Branch at direction of the President, but do not go into effect until the Senate, per the Constitution, ratifies them. Nothing new in this, either.

Also, Congress always retains the power to end any war without a treaty, and without the cooperation of the Executive Branch. Congress' two methods of ending any war on its own are, a) declare the war ended, or b) refuse to finance any further, either immediately, or not after a certain date. There is nothing new in this, either.

Wars are always terrible business, and the plans beforehand are always knocked askew when the first guns are fired. However, the Constitution and the separation of powers it requires, are still the same and intact, as they have been since the first war fought by the United States of America, the War of 1812, which fully established our fledgling nation and is remembered in our National Anthem.

Congressman Billybob

[Congressman Billybob]

The Lindh case came early. President Bush made what was, in my view, a bad decision to allow him to be tried in civil court. Obviously, Bush has changed his mind to a stronger position on American citizens who choose to take up arms against the US. That led to the different result in the Hamdi case.

You're absolutely right that the two cases cannot be squared with each other. This represents a change in the Administration's policy, which has now been confirmed as constitutional by the Court of Appeals decision.

Congressman Billybob

[Right_in_Virginia]

Thank you for your reply. But,I wasn't asking you to explain the responsibilities of our Executive and Legislative branches of government. They are clear and straight foward.

I was hoping you would define the parameters of this war...and tell me how and when we know this war is over...and who~exactly~would be signing a "peace treaty".

I was hoping you would tell me when we, the American people, know it's time to put an end to the wartime powers we've given the Executive branch of our government.

In this moment of history, I understand the need for these powers. I respect and trust these powers in the hands of the Bush administration.

But, if we can't define when and how it's time for these extraordinary powers to end and allow the Constitution to once again reign supreme....then we need to be VERY careful.

So, I'll ask you once again: ~ How do we determine when it's time to end the wartime powers we've given to our Executive branch of the government?

My question is sincere and from the heart. I'm seeking confirmation that we have not forfeited a sustaining part of our freedoms~~ I'm asking you to relieve my unease with the powers we've given our government to hold citizens as combatants without due process.

When does it end?

Best to you..
RIV

[riversarewet]

"And second, 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."

"I have brought this point up more times than I can count. The Bush-bots always ignore it. Perhaps they don't want to think about the future. Perhaps they harbor a secret hope (as some Clintonistas did) that the Constitutional term limits can somehow be circumvented or eliminated and their man can be El Presidente for Life."

---

Like it or not, the President of the United States has a lot of power. I would have no problem with this ruling even if Hillary Clinton was President. This was the correct descision, and is not based on who happens to be President at the time.

If you are so afraid someone like Hilliary would abuse their power, I have news for you, the courts are not going to protect you.

[Congressman Billybob]

I've tried to make this clear, repeatedly. Every declared war ends when Congress says so. The people have their input on that. Witness the popular uprising that brought a failed end to the Viet Nam War. But it is now, and always has been, the constitutional call of Congress, no more, no less.

Billybob

[Right_in_Virginia]

"I've tried to make this clear, repeatedly. Every declared war ends when Congress says so."

I agree. But, we're not dealing with a formal, Congressional declaration of war...certainly not the kind that defines the country we are fighting.

We're dealing with a new entity~~a righteous war that MUST be fought and MUST be won...A war that has the requisite support of the American people~~~yet remains a war without a nation state to hold accountable.

When do we know it's time to celebrate victory and rescind our govenment's war time powers???

This, my friend, is what I'm asking you to define.

[mrsmith]

"allow the Constitution to once again reign supreme"

The Constitution reigns supreme, that is the whole point of the court's ruling.
You really should read the ruling it is very well written by a judge who has a great love for and knowledge of our Constitution.

The court cannot rewrite the Constitution- you should wish all courts had borne that in mind through our history.

It is a beauty in our system that the war will end when the elected President ends it, or when a majority of the elected representatives end it.

What criteria would be used? Well, obviously one would be when the people referred to in the authorization are all handled- that is a finite number and obviously includes very few citizens.

Note that the president is NOT authorized to use this military force against ANY citizen who is a terrorist or enemy or criminal (this is a point many ignore); but only "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"

[Copernicus]

You're absolutely right that the two cases cannot be squared with each other. This represents a change in the Administration's policy, which has now been confirmed as constitutional by the Court of Appeals decision.

Perfect.

You stipulate my point and move on to argue your case.

Equal protection under the law is now subject to chronological interpretation?

EARLY in the reign of Bush43 he actually BELIEVED we are nation of laws and not men? He thought he was actually REQUIRED "to preserve, protect and defend the Constitution of the United States"?

But after a few months in office he realized precedent applies, to wit:

German citizenship does not exempt an individual from execution by gas because of their Jewish bloodline.

"Load the trains Reichmeister Reno,uh, Ashcroft, whoever!"

I eagerly await your interpretation if/when the Supreme Court overturns the Court of Appeals decision.

Will we then enter the La-La Land of the "Living Constitution"?

Either send Lindh to Gitmo or send Hamdi to prison.

That's my final offer.

Best regards,

[Copernicus]

but only "against those nations, organizations, or persons HE DETERMINES planned, authorized, committed, or aided the terrorist attacks that

HE DETERMINES

Interesting phrase.

This administration has already purchased media advertisements that connect terrorism to drug use.

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

How about possession of prohibited ammunition? (In New Jersey a commonly used form of self defense ammunition is fined at the rate of $1000.00 and 1 year in prison per cartridge)(For non-felons)

The penalty at airports for any number of trivial offenses could become the foundation for exactly the same affadavit presented in the Hamidi case, or for that matter, the Lindh case.

These usurpations can only occur when a nation is no longer in touch with it's "inner rifleman".

References: Franz Kafka;George Orwell, et.al.

Best regards,