GOODBYE HABEUS CORPUS
washingtonpost.com
The I-Said-So Test Thursday, June 20, 2002; Page A22
"A court's inquiry should come to an end once the military has shown ... that it has determined that the detainee is an enemy combatant. ... [T]he court may not second-guess the military's enemy-combatant determination."
THESE WORDS were not written by some petty dictator whose kangaroo courts rubber-stamp his every whim and whose whims may include locking up citizens he regards as enemies. They were filed yesterday by the U.S. Department of Justice before the 4th Circuit Court of Appeals in Richmond in the case of Yaser Esam Hamdi. Mr. Hamdi is probably an American citizen, captured in Afghanistan and currently held without charge at a military base in Norfolk. He is not a sympathetic character, but that should not obscure the extraordinary power President Bush is claiming for himself in Mr. Hamdi's case: the right to detain without trial American citizens forever with no meaningful judicial review.
The government's aggressive position in this matter is unnecessary. There is little doubt a court would find Mr. Hamdi, as the government alleges, an enemy combatant, and there is clear precedent for holding such combatants even if they are U.S. citizens. It is unclear how such precedents should be applied in the context of an undeclared war of indefinite duration against a non-state actor, a subject that will require careful balancing over time. But only the most doctrinaire civil libertarian would demand the release at this stage of someone bent on doing great harm to this country.
But instead of establishing in court that Mr. Hamdi is being held lawfully, the government is fighting with all its strength to keep Mr. Hamdi from challenging his detention at all. For starters, it is holding him incommunicado and has prevented him from talking to a lawyer -- contending that access to counsel would interfere with his interrogation. When Federal Public Defender Frank Dunham sought to challenge Mr. Hamdi's incarceration for him, a judge ordered that he be allowed to speak to Mr. Hamdi. But the government persuaded the 4th Circuit to step in, arguing that Mr. Dunham -- never having met Mr. Hamdi -- could not properly file an action on his behalf; a classic Catch-22, since the government won't let him meet his would-be client. Mr. Dunham responded by filing an action on behalf of Mr. Hamdi's father. The judge once again ordered that he be allowed to meet with Mr. Hamdi. But the government asked the 4th Circuit to intervene again.
In its argument this time, the Justice Department acknowledges formally that the courts retain the authority to review a petition challenging the legality of a citizen's detention -- a basic tenet of U.S. liberty. But it contends that military detainees, even citizens, have "no right of access to counsel to challenge their detention." Moreover, the role of the courts in considering any challenges is "extremely narrow"; generally, a court "should accept the military's determination that a detainee is an enemy combatant." At most, "a court could only require the military to point to some evidence supporting its determination." The court cannot look beyond the evidence the government claims to have.
If this is correct, any American could be locked up indefinitely, without a lawyer, on the president's say-so. You don't have to believe that Mr. Hamdi is innocent to see grave peril in this. The Constitution's checks and balances don't contemplate blind trust in the wisdom or good faith of the president. And the courts must not acquiesce in Mr. Bush's claim that they are powerless to ensure the lawfulness of presidential behavior. |
