- The Washington Times - Saturday, October 26, 2002


President Bush has authority as commander in chief to order the indefinite imprisonment of American-born terror suspects without second-guessing by federal judges, the Justice Department told a federal appeals court yesterday.

Justice Department lawyers set the stage for a landmark courtroom battle in Virginia on Monday, telling the 4th U.S. Circuit Court of Appeals in Richmond that a federal judge in Norfolk did not have the authority to conduct an inquiry into the president's decision to imprison Yaser Esam Hamdi as an "enemy combatant" without charges, a lawyer or a trial.

The case pitting the constitutional powers of a president against the constitutional protections afforded individual Americans is expected to reach the U.S. Supreme Court.

Justice Department lawyers insisted that a two-page declaration about Hamdi's battlefield activities submitted to U.S. District Judge Robert Doumar provided "an adequate factual basis to justify the military's wartime detention" of Hamdi without additional judicial review. The sworn declaration was submitted by a Pentagon lawyer.

The appeals court should reject Hamdi's request for "further judicial examination" of his designation as an enemy combatant without the peacetime constitutional protections of individual citizens, Justice Department lawyers wrote.

"There is no place in (a) combat zone for a judicially imposed, administrative fact-finding process," they told the appeals court. "There is no reason to subject them to the additional and unprecedented production demands made by the district court."

The president deserves "great deference" from federal courts to his designations of enemy combatants, Justice Department lawyers said.

Hamdi, 22, born in Baton Rouge, La., to Saudi parents and raised in Saudi Arabia, has been in military custody since being turned over to U.S. forces last Dec. 1. Hamdi has been held at the Navy brig in Norfolk since April.

Michael H. Mobbs, a veteran international lawyer working for the Pentagon, told the U.S. District Court in Norfolk in July that Hamdi deserved detention as an "enemy combatant."

Hamdi trained with and fought for the Taliban in Afghanistan, Mr. Mobbs said.

But Judge Doumar ordered the federal government on Aug. 16 to provide additional information beyond Mr. Mobbs' declaration to explain why it was holding Hamdi in a legal twilight zone.

Judge Doumar requested statements made by Hamdi and soldiers who captured him, as well as details of the screening process used by military authorities to designate Hamdi an enemy combatant so that he could determine the legality of Hamdi's open-ended imprisonment.

Mr. Mobbs' declaration was "little more than the government's 'say-so,'" Judge Doumar said.

Accepting the declaration alone would be "abdicating any semblance of the most minimal level of judicial review" of a president's actions, said Judge Doumar, a former Republican state chairman in Virginia named to the federal bench by President Reagan in 1981.

Federal public defender Frank W. Dunham, named by Judge Doumar as Hamdi's court-appointed attorney, launched an effort in May to challenge Hamdi's detention. Monday's oral argument is the third time that the case has come before the appeals court.

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