- The Washington Times - Thursday, January 9, 2003

U.S. citizens can be detained by the government as enemy combatants during wartime without the constitutional protections afforded Americans in criminal prosecutions, a federal appeals court panel ruled yesterday.
The three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, in overturning a lower court ruling, said the citizenship status of Yaser Esam Hamdi, 22, did not change when he was captured in Afghanistan while fighting alongside Taliban guerrillas and al Qaeda terrorists.
"The events of September 11 have left their indelible mark. It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day," wrote Chief Judge J. Harvey Wilkinson III and Judges William W. Wilkins and William B. Traxler in their 54-page ruling.
"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," they said.
"Hamdi is not 'any American citizen alleged to be an enemy combatant' by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces," he said.
Attorney General John Ashcroft hailed the decision, calling it "an important victory for the president's ability to protect the American people in times of war."
"Detention of enemy combatants prevents them from rejoining the enemy and continuing to fight against America and its allies, and has long been upheld by our nation's courts, regardless of the citizenship of the enemy combatant," Mr. Ashcroft said in a statement.
Hamdi, through his attorneys, challenged the lawfulness of his confinement at the Norfolk Naval brig, questioning in a petition whether a declaration by a special adviser to the undersecretary of defense for policy outlining the circumstances of his capture in Afghanistan was sufficient to justify his detention.
The court said that because it was undisputed that Hamdi was captured in a "zone of active combat in a foreign theater of conflict," the declaration was a sufficient basis on which to conclude that President Bush had detained Hamdi under his constitutional war powers.
"No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition," the court said.
In the wake of the September 11 attacks, the court said Congress also had authorized the president "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks" or "harbored such organizations or persons."
The court said that Mr. Bush responded by ordering U.S. military troops to Afghanistan to subdue al Qaeda and the governing Taliban regime supporting it, and that during ongoing military operations, thousands of suspected enemy combatants, including Hamdi, were captured by American and allied forces.
Judges Wilkinson and Wilkins were appointed by President Reagan. Judge Traxler was first appointed by President Bush in 1991 and by President Clinton in 1998.
Although initially detained in Afghanistan and then Guantanamo Bay, Cuba, Hamdi was transferred to the Norfolk Naval Station brig after it was discovered he may not have renounced his U.S. citizenship. He has remained in Norfolk since April 2002.
In his petition, Hamdi said that as an American citizen, he "enjoys the full protections of the Constitution," and that the government's detention of him without charges, access to a judicial tribunal or the right to counsel violated his constitutional rights.

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