- The Washington Times - Sunday, March 14, 2004

At last, two American citizens, Yaser Esam HamdiandJose Padilla, will have a hearing before the Supreme Court in April on whether they can continue to be held indefinitely in Navy brigs without charges as “enemy combatants” — and without their guaranteed Sixth Amendment right of access totheir lawyers.

On April 20, the high court will hear arguments on whether the non-citizens held by the United States at Guantanamo Bay should have access to American civilian courts. But the denial of the most basic due process rights, including real access to a lawyer for American citizens, is the most crucial test that the Bush administration’s design for national security has faced in our courts thus far.

Aware of the sharp criticisms of the administration’s position by former appellate federal judges appointed by both Republican and Democratic presidents, the Defense Department on Dec. 2 granted Mr. Hamdi temporary access to his lawyer, but only so that theadministrationcan strengthen its case before the Supreme Court.

It was made clear that the Bush administration had no intention of setting a precedent by granting Mr. Hamdi access and that the government has no obligation to allow even American citizens to see their lawyers once the president had designated their clients as enemy combatants.

I recommend that the Supreme Court justices read Brent Kendall’s report in the Feb. 13 Los Angeles Daily Journal (a legal-issues newspaper) about what actually happened when federal public defender Frank Dunham finally met Mr. Hamdi, whom he had never seen before. Mr. Dunham “found himself in an interview room not only with Hamdi, but with a naval commander who was there to observe their conversation.” Moreover, “hovering over them was a video camera, its red light brightly lit.” The essential need for privacy during lawyer-client conversations was obviously being violated by the naval officer’s presence and by the videotaping of the conversation in its entirety.

Add to the government’s mocking of Mr. Hamdi’s fundamental due process right the fact that intelligence agents outside the room were also monitoring the lawyer-client exchanges.

Mr. Hamdi “had a meeting with counsel, but didn’t have access to counsel,” said Mr. Dunham. On Feb. 11, the Defense Department suddenly decided to also let Mr. Padilla’s lawyers — Donna Newman and Andrew Patel — see their client. I spoke to Mr. Patel before the meeting. He knew that he and his co-counsel would also be unable to speak to their client in privacy. As he told the Daily Journal, “access to counsel is a privileged, confidential communication. (What is happening here) falls as far short of that as you can imagine.”

Mr. Dunham, mordantly commenting on the Bush administration’s evasion of the Constitution, said that any lawyer “ought to turn in your bar ticket,” he told the Daily Journal, “if you go into a situation and encourage your client to talk about matters when the other side is listening.”

Another government tactic was to pledge to Mr. Dunham that the team listening in on his conversations with Mr. Hamdi would not report them to government lawyers on the other side of this case. But Mr. Dunham points out that this pledge may be broken if representatives of the government monitoring the conversation — acting solely on their own judgment — decide that what’s being said will affect national security.

AsMissNewman,Mr. Padilla’s co-counsel, said in a supplemental brief to the Supreme Court: “The conditions that the government seeks to impose on any meeting between the counsel and Padilla are so restrictive that such a meeting cannot be viewed in any meaningful sense as an attorney-client meeting.”

Technically, since these two American citizens have been held for nearly two years without charges, one could say that they have no Sixth Amendment rights, even if their cases are going to the Supreme Court — because there is, as yet, no criminal case against them. Why, then, are they being punished for nearly two years while imprisoned incommunicado in solitary confinement without any contact with their families?

Is this the American rule of law? If the Supreme Court does decide that the president, as commander in chief, can indeed ignore the Constitution, then I trust he will be able to explain exactly the core American values we are fighting to preserve in our war against our terrorist enemies.

In this crucial case, we all must consider the chilling precedent that President Bush may have set for what future presidents will be able to do to American citizens.

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