- The Washington Times - Monday, January 27, 2003

There was no discernible concern in most of the media, and therefore in the public at large, when the Fourth Circuit Court of Appeals decided on Dec. 8 that Yaser Esam Hamdi, an American citizen, can lawfully be imprisoned indefinitely in a military brig on American soil without access to his lawyer, incommunicado and without charges.
Attorney General John Ashcroft declared the decision was an "important victory for the president's ability to protect the American people in time of war."
Looked at closely, the decision was actually a victory by the government over due process fairness that is at the core of our constitutional system. At the same time, it was a defeat for another foundation of American justice: the separation of powers. The 4th Circuit so agreeably deferred to the executive branch of government that Mr. Hamdi did not receive meaningful judicial review of his imprisonment.
The 4th Circuit, along with most of the media, agreed with the government that Mr. Hamdi had been captured "in a zone of active combat" in Afghanistan as an enemy combatant. The press keeps saying he was fighting in the ranks of the Taliban. So does the government. But is this true? Was he an enemy combatant?
Consider this statement by the 4th Circuit: "The factual averments in the (government's) affidavit, if accurate, are sufficient to confirm that Hamdi's detention conforms with legitimate exercise of the war powers given the executive."
Keep in mind the phrase "if accurate." The 4th Circuit based this ruling solely on a two-page, nine-paragraph affidavit by Michael Mobbs of Donald Rumsfeld's Defense Department. Since the prisoner has not been permitted to see or speak to his attorney, federal public defender Frank Dunham, and he has not been able to testify as to whether this affidavit is accurate. Mr. Hamdi has been denied his Sixth Amendment right to confront his accusers.
"Nobody knows what Hamdi's version of the facts might be," his lawyer says. But the 4th Circuit judges have certainly read the record of the previous hearing, without Mr. Hamdi being present, before federal District Judge Robert Doumar, a Reagan appointee with a reputation for careful adherence to due process and the separation of powers.
Having read the government's two-page affidavit, Judge Doumar said in open court, "I'm challenging everything in the Mobbs declaration. … A close inspection of the declaration reveals that (it) never claims that Hamdi was fighting for the Taliban… Is there anything in here that said Hamdi ever fired a weapon?…
"Without access to the screening criteria actually used by the government in its classification decision (that Hamdi was an enemy combatant), this court," said Judge Doumar, "is unable to determine whether the government has paid adequate consideration to the due process rights which Hamdi is entitled" to have.
By keeping Mr. Hamdi in a military prison without charges so that he can be interrogated indefinitely without the basic constitutional rights of an American citizen the 4th Circuit is not only ignoring Judge Doumar's legitimate due-process concerns, but the 4th Circuit is also essentially abdicating its own responsibility under the separation of powers.
As Stephen Dycus, an expert in national security law at the Vermont Law School, said in the Jan. 8 Washington Post: "Despite some lip service about the courts reserving some role for themselves (in this case), (the 4th Circuit) really doesn't play that role." As a Jan. 16 Newsday editorial read: "If judges take what the government says as gospel, then judicial review will be a sham."
Going farther to illuminate this bypassing of the separation of powers in Mr. Hamdi's case, Elisa Massimino a director for the Lawyers Committee for Human Rights emphasized in the Jan. 9 New York Times that the 4th 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."
As a result of this decision, Mr. Hamdi's court of last resort is the U.S. Supreme Court, to which an appeal has been made. If this court agrees with the 4th Circuit, yet more serious damage to the Constitution will have resulted from the administration's war on terrorism which the president and his colleagues have continually maintained will be fought "within the bounds of the Constitution."
Is anyone in Congress concerned with the erosion of the separation of powers as Yaser Esam Hamdi remains in solitary confinement, abandoned so far by the Bill of Rights?

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