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Liberty's Court of Last Resort: Ashcroft Scores Another Victory Over the Constitution
Village Voice ^ | January 24th, 2003 5:00 PM | Nat Hentoff

Posted on 01/28/2003 2:22:11 PM PST by dead

Nobody Knows Hamdi's Own Story

Mr. Hamdi could, in fact, be entirely innocent, and yet the court says there is no judicial recourse. —Georgetown University law professor David Cole, National Public Radio, January 8

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During one of our last conversations, the late Supreme Court justice William Brennan said, "Look, pal, we've always known—the Framers knew—that liberty is a fragile thing."

Liberty has become much more fragile under the Bush-Ashcroft-Rumsfeld administration. On December 8, the Fourth Circuit Court of Appeals handed Bush's team its most significant victory so far in inflicting collateral damage on the Bill of Rights in the war on terrorism.

A unanimous three-judge panel ruled that 22-year-old Yaser Esam Hamdi, an American citizen, can be imprisoned indefinitely in a navy brig on American soil. He is being held without charges, and without being able to see his lawyer, federal public defender Frank Dunham. In fact, Hamdi cannot see anyone except for his guards.

Conceivably, Hamdi, if the government continues not to charge him with any crime, will be released only when the open-ended war on terrorism is over, if he lives that long. The president, on his sole authority, put Hamdi in that prison. And unless Hamdi's court of last resort, the Supreme Court, restores his basic constitutional rights as an American citizen, he will stay behind bars. There will be an appeal to the Supreme Court.

The Fourth Circuit's ruling has been hailed by John Ashcroft as "an important victory for the president's ability to protect the American people in times of war." Practically all the stories on Hamdi in the media have gone along with the administration's assertion that Hamdi, fighting with the Taliban, was captured on the battlefield in Afghanistan.

But is this true? The Fourth Circuit accepted, without rebuttal from the prisoner, who has not been allowed to appear in court, a two-page, nine-paragraph affidavit from the government justifying its claim that Hamdi was captured "in a zone of active combat" as an enemy combatant. This is "undisputed," says the court. But look closely at this sentence in the Fourth Circuit's opinion:

"The factual averments in the affidavit, if accurate, are sufficient to confirm that Hamdi's detention conforms with a legitimate exercise of the war powers given to the executive. . . . Asking the executive [the president] to provide more detailed factual assertions would be to wade further into the conduct of war than we consider appropriate and is unnecessary to a meaningful judicial review of this question." (Emphasis added.)

According to the Bush administration, an American citizen can be held indefinitely, incommunicado, on its say-so that the government's facts are actually factual. This is due process? This is America? Yet the Fourth Circuit stated in the same decision that stripping any citizen of his or her constitutional protections "is not a step that any court would casually take."

Hamdi has not been allowed to be interviewed by his lawyer so that the government can be cross-examined in court on the credibility of its affidavit. In the January 9 Washington Post, Stephen Dycus, an expert in national security law at the Vermont Law School, said plainly and irrefutably that Hamdi is "not being given the right to refute the charges against him."

Dycus also made the crucial point that "despite some lip service about the courts preserving some role for themselves [in this case], the [Fourth Circuit] really doesn't play that role." And, as Dycus emphasized, it is the president who has "the last word" on whether the evidence against Hamdi is to be believed. Trust Bush. He's the commander in chief. But the Constitution explicitly insists on the separation of powers. That's why we have the judiciary.

In the January 8-14 Voice, I reported that when Hamdi's case came before Federal District Judge Robert Doumar, without Hamdi present, that judge—after reading the government's two-page affidavit from Michael Mobbs of the Defense Department—said, "I'm challenging everything in the Mobbs declaration."

Judge Doumar continued: "A close inspection of the 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? . . . Without access to the screening criteria actually used by the government in its classification decision [declaring Hamdi an enemy combatant] this Court is unable to determine whether the government has paid adequate consideration to due process rights to which Hamdi is entitled." (Emphasis added.)

The Fourth Circuit Court of Appeals wholly ignored Judge Doumar's entirely legitimate constitutional scrutiny of the government's two pieces of paper purportedly proving the necessity of depriving this American citizen of his right to challenge the government's case against him. As Frank Dunham says of his client, "Nobody knows what his version of the facts might be."

Elisa Massimino, a director of the Lawyers Committee for Human Rights, makes this critical point in the January 9 New York Times: "[The Fourth Circuit] 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."

In its report "A Year of Loss: Reexamining Civil Liberties Since September 11," released in September 2002, the Lawyers Committee for Human Rights declared that in addition to many lives and our sense of invulnerability, "the United States has lost something essential and defining: some of the cherished principles on which the country is founded have been eroded or disregarded."

The Supreme Court is our court of last resort, as well as Hamdi's. While the Fourth Circuit did not say that what happened to Hamdi could be inflicted on an American citizen captured on American soil, constitutional law professor David Cole notes, "There would be some in the government who would claim that in this conflict the combat zone is the world."

Next week: torture, American-style.


TOPICS: Crime/Corruption; Culture/Society; Foreign Affairs; Government; News/Current Events; Politics/Elections
KEYWORDS: axisofweasels; hamdi; snivelingidiots

1 posted on 01/28/2003 2:22:11 PM PST by dead
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To: dead
Although I find it extremely difficult to be sympathetic to an American caught in Taliban gang colors, I think it would be beneficial for the Administration to grant some limited access to Hamadi by lawyers so this issue can be put to rest.
2 posted on 01/28/2003 2:25:19 PM PST by dirtboy
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To: dead
All well and good but Hamdi was picked up in Afghanistan on the battlefield,bearing arms against the US.

Hentoff is a solid guy, IMO, but making Hamdi a cause celebre is not going to make waves in the USA.
3 posted on 01/28/2003 2:25:20 PM PST by swarthyguy
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To: dead
Memo to Nat: When you start paying attention to the Second Amendment for a change, I'll start paying more attention to what you have to say.


4 posted on 01/28/2003 2:26:23 PM PST by Joe Brower (http://www.joebrower.com/)
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To: dead
I hope the liberals are rethinking their silence when an arm of a the Internal Revenue Service burned 82 men, women, and children to death a decade ago.

I would like to agree with Mssr.Hentoff, but the left has no credibility on this issue and thus I have little choice but to trust Ashcroft has his reason for keeping this guy locked up.
5 posted on 01/28/2003 2:27:33 PM PST by JohnGalt
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To: swarthyguy
I agree completely. This is not the case for those of us who are concerned with Bush and Ashcroft's conduct concerning the Constitution post 9/11 to defend. Hamdi is a prisoner of war because he was picked up fighting in an enemy uniform against Americans in a war zone. Trying POWs would set a horrible precedent in International law.
6 posted on 01/28/2003 2:28:35 PM PST by Sparta (Statism is a mental illness)
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To: Sparta
Trying POWs would set a horrible precedent in International law.

I think that since the POW in question is an American citizen, that the Administration should be required to present their evidence of Hamadi's complicity with the Taliban and Hamadi's attorneys should have the opportunity to challenge that evidence. Then, if the evidence is sufficient that he was, indeed, fighting with the Taliban, toss him in the brig and don't open it until the war on terror is over.

7 posted on 01/28/2003 2:34:55 PM PST by dirtboy
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To: Joe Brower

Gun briefs merely stating the obvious

Attorney General John Ashcroft has set off another political brushfire, this time among the politically correct anti-gun crowd. His offense was to order the Justice Department to state the obvious in a pair of briefs filed with the U.S. Supreme Court. The Second Amendment, the department says in its briefs, protects an individual right to “keep and bear arms,” not a state right. This supposedly marks a “radical reinterpretation” of the Constitution, but that would come as a great surprise to the Founders and to courts of roughly the first 150 years of the nation’s existence. The Bill of Rights, of which the Second Amendment of course is a part, was created explicitly because many of the founding generation were concerned that Madison’s Constitution provided no safeguard against federal accumulation of power. The Bill of Rights is almost entirely focused on the protection of individual rights, with the exception of the Tenth Amendment, which reserves to the states and “to the people” those powers not explicitly conferred upon the federal government. In recent years, courts and bureaucrats have taken the position that states have the right to strictly regulate guns, even to the point of for all practical purposes prohibiting ownership of common weapons. But this, as even noted liberal civil libertarians like Nat Hentoff note, is contrary to the body of the Bill of Rights. The Second Amendment right to keep and bear arms, Hentoff and numerous others argue, is crafted similarly to other individual rights, such as the Fourth Amendment’s right against unreasonable search and seizure, the First Amendment right to peaceably assemble and so on. One could argue that the Second Amendment right to bear arms provides the individual with the ability to protect his other individual rights against the state — by force if necessary. The Justice Department does not argue that Second Amendment rights are without limitation. Just as one may not yell “Fire!” in a crowded theater, it is reasonable, for example, to prohibit firearms inside courthouses. As UCLA law professor Eugene Volokh notes in a recent Wall Street Journal essay, if the Supreme Court accepts the Justice Department’s view, then it will have the effect of making it easier to enact modest, sensible regulations of guns. “Today,” he writes, “many proposals, such as gun registration, are opposed largely because of the quite reasonable fear that they’ll lead to ... gun prohibition.” He may be right. More important, however, the Founders were right. Unless the Second Amendment is repealed, the American people clearly have an individual right to bear arms.

Hentoff's pro-Second Amendment and pro-life.

8 posted on 01/28/2003 2:36:57 PM PST by Sparta (Statism is a mental illness)
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To: dirtboy

I think that since the POW in question is an American citizen, that the Administration should be required to present their evidence of Hamadi's complicity with the Taliban and Hamadi's attorneys should have the opportunity to challenge that evidence.

That sounds like treason. If he should be charged with anything, it should be treason. If treason can't be proved, then he should be treated as a POW.

9 posted on 01/28/2003 2:39:32 PM PST by Sparta (Statism is a mental illness)
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To: dirtboy
Proof? He was in Jihadistan bearing arms and studying the koran(!). What more proof is required?
10 posted on 01/28/2003 2:43:19 PM PST by swarthyguy
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To: Sparta
If he should be charged with anything, it should be treason. If treason can't be proved, then he should be treated as a POW.

I think the point is that there should be some kind of due process where the Administration must present the facts that an American citizen had taken up arms against this country, and the citizen in question has the ability to challenge the facts. Otherwise, the precedent is set for an Administration (not necessarily this one) to declare just about ANYONE an enemy combatant, whether or not they actually are, and they have no ability to defend themselves under the Constitution.

If the Administration makes it case, then hose the sumbitch.

11 posted on 01/28/2003 2:44:22 PM PST by dirtboy
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To: JohnGalt
Hentoff was all over Reno and Clinton for both Waco and the Elian Gonzalez raid and supported the impeachment of both of them.

“It would be hard to find any president who has damaged the Constitution in so many different ways.”
- Nat Hentoff on Bill Clinton


12 posted on 01/28/2003 2:46:10 PM PST by dead
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To: swarthyguy
Proof? He was in Jihadistan bearing arms and studying the koran(!). What more proof is required?

The point is, in any other situation, the government must present its case that a citizen engaged in wrongdoing, and the citizen has the right to challenge accusers and rebut evidence. It's called due process. Otherwise, any President would gain the power to declare someone an enemy combatant and there would be no recourse, no review for that person. Are you really sure you want such a precedent set?

Like I've said, have a hearing, have both sides present their case, and if the government makes its case, may the citizen in question wish he had died on the battlefield...

13 posted on 01/28/2003 2:46:54 PM PST by dirtboy
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To: dirtboy
grant some limited access to Hamadi by lawyers so this issue can be put to rest.

POW's don't get lawyers.

And we don't litigate battlefield actions.

14 posted on 01/28/2003 2:50:13 PM PST by angkor
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To: dirtboy
I guess the basic difference between your viewpoint and mine is you choose to see this as a legal matter, a criminal act....I see it as an act of war, treason by this kid and as such, all he deserves are 3 squares.

My weak point is the WoT could extend a generation and that's where i do feel a little squeamish about this.

In my defense, he's of Saudi origin so maybe he has some good stuff to give to the USG.
15 posted on 01/28/2003 2:50:33 PM PST by swarthyguy
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To: dirtboy
I agree the enemy combantant designation must be clarified or its got to go. However, my problem with giving Hamdi a hearing is that you can not have criminal procedings against a prisoner of war. It is a violation of the Geneva Convention.

I don't think any Al-Qaeda types in the US should recieve enemy combatant status. They must be dealt with according to the Constitution, a trial by a jury of American citizens.

Your idea that Bush has to prove that Hamdi is a POW is a good one, but I'm not sure its legal under International law.
16 posted on 01/28/2003 2:50:39 PM PST by Sparta (Never Again)
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To: swarthyguy
Q - How do you know that?

A - The government says so.

The government says a lot of things. Hamdi is an American citizen, and until the executive branch can prove their case, he should be entitled to a fair (even if closed) hearing.

Then hang him.

17 posted on 01/28/2003 2:50:52 PM PST by dead
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To: Sparta
Well I'll be darned! I am happy to stand corrected!

Thanks, and stay safe,


18 posted on 01/28/2003 2:51:18 PM PST by Joe Brower (http://www.joebrower.com/)
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To: angkor
Subjecting a POW to civilian or military legal procedings is a violation of the Geneva Convention. The only exception is after a war and only for war crimes.
19 posted on 01/28/2003 2:52:19 PM PST by Sparta (Statism is a mental illness)
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To: swarthyguy
War on Terror

War on Drugs

War on Poverty

War on Cancer

20 posted on 01/28/2003 2:55:10 PM PST by Doctor Stochastic (Hope is a good breakfast, but it is a bad supper. - Francis Bacon)
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To: dirtboy; FreeTheHostages
I agree with you and Hentoff.
21 posted on 01/28/2003 2:56:01 PM PST by aristeides
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To: dead
Allowing a lawyer ends any fruits from interrogation.
22 posted on 01/28/2003 2:56:41 PM PST by swarthyguy
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To: dead
The government says a lot of things. Hamdi is an American citizen, and until the executive branch can prove their case, he should be entitled to a fair (even if closed) hearing.

As long as John "I'd like to suspend Habeus Corpus" Aschcroft is around, I don't see that happening.

23 posted on 01/28/2003 2:58:35 PM PST by Pahuanui
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To: dirtboy
When they came for the communists, I didn't say anything, I wasn't a communist.
When they came for the trade unionists, I didn't say anything, I wasn't a trade unionist.
When they came for the Jews, I didn't say anything, I wasn't a Jew.
When they came for me, there was no one left to say anything.

Welcome to reality folks, tyranny rarely starts all at once, but a little at a time.

24 posted on 01/28/2003 3:10:44 PM PST by Stavka2
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To: Sparta
Then let him be charged and tried, instead of kept without due process. Most tyrannical governments, if you do the research, rarely ever charge anyone with anything, they just keep them....forever.
25 posted on 01/28/2003 3:14:18 PM PST by Stavka2
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To: swarthyguy
Proof? He was in Jihadistan bearing arms and studying the koran(!). What more proof is required?

Then use that in court and prove it, don't just hold a man without charges, that is exactly what ole King George used to do...and even then Parliment usually sided against him....where is Congress?

26 posted on 01/28/2003 3:15:22 PM PST by Stavka2
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To: aristeides
And I agree with all three of you.
27 posted on 01/28/2003 3:16:25 PM PST by p. henry
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To: angkor
Ok, so he's a POW, then at the end of the war he MUST be released and repatriated to his HOME country. Don't like that? Then try him as a criminal. POWs also get rights, under the Geneva Convetion, something the US came up with and is a founding signitary.
28 posted on 01/28/2003 3:17:22 PM PST by Stavka2
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To: Stavka2
I agree with you in principle, but take into account that trying POWs is a violation of the Geneva Convention. As I said earlier, the enemy combantant designation needs to be subjected to due process or scrapped altogether.
29 posted on 01/28/2003 3:22:50 PM PST by Sparta (Statism is a mental illness)
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To: Stavka2

Ok, so he's a POW, then at the end of the war he MUST be released and repatriated to his HOME country. Don't like that? Then try him as a criminal. POWs also get rights, under the Geneva Convetion, something the US came up with and is a founding signitary.

I agree 100% with you on this post.

30 posted on 01/28/2003 3:23:52 PM PST by Sparta (Statism is a mental illness)
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To: Sparta
A hearing to determine whether a citizen like Hamdi is properly being held as an enemy combatant needn't be a trial.
31 posted on 01/28/2003 3:26:33 PM PST by aristeides
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To: aristeides
I think I can go along with that. If he's declared an enemy combantant(POW), it's hands off unless he's a war criminal(ie. an actual 9/11 plotter.). Otherwise, he must be given his Constitutional protections like all other criminal defendants.
32 posted on 01/28/2003 3:29:09 PM PST by Sparta (Statism is a mental illness)
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To: dirtboy
Then, if the evidence is sufficient that he was, indeed, fighting with the Taliban, toss him in the brig and don't open it until the war on terror is over.

Actually, I think the death penalty would be appopriate. Treason, you know. But that does need a trial first.

33 posted on 01/28/2003 4:05:56 PM PST by templar
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To: aristeides
Point is: citizens get public hearings or tribunerals, but they do get something...not solitary minus charges. This is tyranny...if winning this war means that we must become just like those we dispise, have we really won?
34 posted on 01/28/2003 4:08:55 PM PST by Stavka2
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To: Sparta; Stavka2
Subjecting a POW to civilian or military legal procedings is a violation of the Geneva Convention.

It was wrong for me to say he is a POW, knowing that some would think he is subject to the Geneva Convention on the basis of the term "POW".

Actually the Geneva Convention goes into some detail on the issue of legal combatants. And by any reading of the pertinent definitions, Hamidi is not a legal combatant.

So he is a combatant, but not a legal one, and therefore not subject to the Geneva Convention.

However he remains a combatant nonetheless, and therefore can be incarcerated under the conventions of war, e.g., no lawyers, no habeus corpus.

International law is by no means vague on this issue. Hamidi has no standing whatsoever. However, U.S. law is somewhat vaugue and undefined, so don't go trotting-out these stageplays of outrage and self-righteousness.

Hamidi is a military enemy in a military brig. Period.

35 posted on 01/28/2003 4:26:42 PM PST by angkor
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To: swarthyguy
Proof? He was in Jihadistan bearing arms and studying the koran(!). What more proof is required?

A lot, actually. Unless those things are now Unconstitutional.

36 posted on 01/28/2003 5:29:01 PM PST by DAnconia55
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To: DAnconia55
A lot, actually. Unless those things are now Unconstitutional.

To quote columnist James J. Kilpatrick quoting Judge Wilkinson:

[Hamdi is] "an American citizen captured and detained by American allied forces in a foreign theatre of war during active hostilities and determined by the United States military to have been allied with enemy forces."

Is the US military now supposed to be prepared to present for anyone captured (as Judge Doumar of the Virginia District court ordered): the names and addresses of his captors, a description of Hamdi's uniform (if any), the name of the Taliban unit?

In short be clerks instead of soldiers.

37 posted on 01/28/2003 5:51:59 PM PST by ExpandNATO
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To: DAnconia55
That's your viewpoint. Proof for what?

This is not a criminal case. This was a fighter bearing arms against the USA. In Afghanistan.

Interrogate the crap out of this little shit. Keep him incommunicado. Squueze him for any info.

And let him serve as an example to any other socalled citizens that being the bearer of a US passport will not protect you if you're a traitor and on the battlefield carrying arms to kill Americans.
38 posted on 01/29/2003 9:19:36 AM PST by swarthyguy
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