- The Washington Times - Sunday, February 1, 2004

Of all the actions taken by the Bush administration in the war on terrorism, none has been more controversial — across the political spectrum — than the president’s empowering only himself to imprison an American citizen as an enemy combatant — without charges, indefinitely and without continuous access to a lawyer. This case, Hamdi vs. Rumsfeld, is now before the Supreme Court, despite the strong objections of the government, which urged the court not to take it.

The citizen, Yaser Hamdi, was captured in Afghanistan by bounty hunters in the Northern Alliance. He was allegedly caught fighting for the Taliban and turned over to American forces. A federal district judge ruled that the evidence against Mr. Hamdi has not been fully proved. But the Fourth Circuit Court of Appeals, in an 8-4 decision, ruled that the president has enough basis to hold Mr. Hamdi indefinitely without charges and without any prospect of a trial.

Mr. Hamdi, in a Navy brig for two years on American soil, had been denied any access to his lawyer. But suddenly, on Dec. 2, the Defense Department announced that he would be able to see his attorney — just a day before the Justice Department was required to file a brief before the Supreme Court regarding Mr. Hamdi.

In November, during oral arguments on Mr. Hamdi’s case before the Second Circuit Court of Appeals, two of the three judges harshly rebuked the administration, signaling that the panel would find that the president does not have the constitutional authority — without the approval of Congress — to lock Mr. Hamdi up under these conditions. The Second Circuit’s actual Dec. 18 decision stated exactly that.

Significantly, although the third judge on the Second Circuit panel supported the president’s position, he did agree with the majority that the president, though actingascommander in chief in a military decision, did not have the authority to deny Mr. Hamdi the right to seehislawyer (whom he needed in order to help contest the government’s case against him).

Accordingly, the government’s abrupt decision to let Mr. Hamdi see his attorney seemed to be a transparent attempt to improve its position before the Supreme Court. However, the nine justices will still have to confront the Sixth Amendment question of this citizen’s right to counsel, because the Defense Department has made it clear that giving Mr. Hamdi access to a lawyer at this time “is not required by domestic or international law and should not be treated as a precedent.”

Moreover, SolicitorGeneral Theodore Olson, in thegovernment’s brief to the Supreme Court, emphasized that the administration does not agree that it has any obligation to let Mr. Hamdi see a lawyer. It said it made an exception this time because it had finished questioning him.

I expect, therefore, that the SupremeCourtwillsee through the government’s stratagem to let a lawyer slide into the Navy brig only by the sufferance of the government.

What the justices will have to deal with are the findings of the majority of the Second Circuit Court of Appeals. First, in 1971, in reaction to the shameful herding of Japanese-Americans into detention camps during World War II, Congress passed the Non-Detention Act, which declares unambiguously that “no citizen shall be … detained by the United States except pursuant to an Act of Congress.”

But the administration claims that the Congressional Authorization for Use of Military Force, passed in September 2001, gives the president that unilateral authority in order to go after the terrorists who committed the September 11 attacks and continue to operate worldwide. However, the Second Circuit held that this post-September 11 resolution does not, in any way, authorize the president, solely on his say-so, to detain American citizens — let alone without charges, indefinitely and with no constitutionally guaranteed access to a lawyer.

Neal Sonnet, chair of the American Bar Association’s task force on enemy combatants, said on ABC’s “Nightline” Jan. 9 about the administration’s insistence that the courts must defer to it in these matters: “…the administration has gone beyond the bounds. They have arrogated power to themselves that has never been done before in the history of this country.”

Actually, Abraham Lincoln did just that during the Civil War, suspending habeas corpus and herding dissenters before military tribunals. However, in 1866, the Supreme Court ruled that “the Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Lincoln, on his own say-so, had defied the Constitution.

President Bush, too, has denied citizen Yaser Hamdi the most fundamental due process rights at the very core of our rule of law. Will the Constitution survive high noon at the Supreme Court?

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