The Hamdi Ruling

A January ruling by the Fourth Circuit Federal Court of Appeals, headquartered in Richmond, Virginia, has blessed Attorney General John Ashcroft's contention that American citizens detained as enemy combatants can be held indefinitely without access to a lawyer.

The case involves the fate of Yasser Esam Hamdi, an American citizen of Saudi descent who was captured in Afghanistan and has been held in the Norfolk Naval Brig since April of last year. Ashcroft argues that Hamdi forfeited his constitutional rights when he decided to fight alongside the Taliban. Thus far Hamdi has been prevented from having any contact with his family or lawyers and the Justice Department wants to keep it that way indefinitely.

The US government has yet to offer any proof that Hamdi was actually part of the Taliban's army or that he was waging war against American troops. The lawyers acting on Hamdi's behalf filed a habeas corpus motion asking that the government turn over to the defense counsel the documents the feds used to conclude that he was in fact an enemy combatant. The court turned them down tersely, saying "No further factual inquiry is necessary or proper."

The court relies on a single fact to support Hamdi's indefinite detention: that "it is undisputed that he was captured in a zone of active combat operations abroad." None of the additional allegations about Hamdi possessing an AK-47 and other military equipment was relied on for the court's sweeping holding. Hamdi can't see the evidence used to detain him. So he has no way to challenge the government's allegations. And the court doesn't want to see the evidence, either.

"Under the court's reasoning, any journalist, aid worker or, indeed, Human Rights Watch researcher picked up in Afghanistan could be detained indefinitely as an enemy combatant," says Joanne Mariner, a human rights lawyer in New York. "And in its ruling the court finds that active hostilities are ongoing there, so people could be arrested at any time."

"It is important to emphasize that we are not placing our imprimatur upon a new day of executive detentions," writes chief justice Wilkinson. "We earlier rejected the summary embrace of 'a sweeping proposition--namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so.' But 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."

So, in theory, American citizens enjoy the right to meaningful judicial review. In practice, they don't. The Fourth Circuit ruling elicits a sinister echo from the old phrase "With all due deference."

"The events of September 11 have left their indelible mark," Wilkinson concludes. "It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day. 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. Hamdi's status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framer's scheme. Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one."

In other words, the Fourth Circuit court is willing to accept the Bush administration's assertion that Hamdi is an "enemy combatant" without requiring a shred of evidence as to how the government reached that conclusion. Indeed, Wilkinson suggests that it would be impolite for the court even to inquire about the evidence used to obliterate Hamdi's constitutional rights. So much for checks and balances.

"I am most disturbed by the court's recognition that the nature of 'unlawful combatants' may change and that the executive's authority to detain others than those in Afghanistan expands with it," Elaine Cassel, a law professor in Virginia told me. "You can envision this being used against political dissidents, where any of us could be seized and detained without counsel for writing, reading, and teaching during wartime."

If there's a bright spot in this awful opinion it is that the Court specifically states that its holding is not meant to cover the detention of "an American citizen captured on American soil." This is a veiled reference to Jose Padilla, the so-called "dirty bomb" suspect, who was picked up in Chicago, labeled an enemy combatant, and sequestered from legal counsel and family. That's not how Ashcroft reads the decision. One day after the Fourth Circuit issued its ruling in the Hamdi case, the Justice Department filed papers with a federal court in New York demanding that the judge use the Hamdi ruling to keep Padilla from consulting with his lawyers.

Wilkinson, a Reagan appointee, is frequently touted as being on Bush's short list for a Supreme Court nomination. The obedient ruling in Hamdi will no doubt boost his prospects.