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Citizen enemy combatants { January 8 2003 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2003/01/08/national/08CND-DETAIN.htmlhttp://www.nytimes.com/2003/01/08/national/08CND-DETAIN.html
January 8, 2003
Court Rules U.S. Can Hold Citizens as 'Enemy Combatants'
By NEIL A. LEWIS
WASHINGTON, Jan. 8 -- A federal appeals court handed the Bush administration a major victory today in ruling that a wartime president has the authority to detain indefinitely a United States citizen captured as an enemy combatant on the battlefield and deny that person access to a lawyer.
The closely watched case that set up a stark clash between the nation's security interests and its citizens' civil liberties, resulted in an expansion of the power of the presidency as the three-judge panel ruled unanimously that Mr. Bush was due great deference in conducting the war against terrorism. The judges of the United States Court of Appeals for the Fourth Circuit in Richmond, Va., said that it was improper for courts to probe too deeply into the detention of Yasser Esam Hamdi, a 22-year-old American-born Saudi Arabian who was captured on the battlefield in Afghanistan and is imprisoned in a military brig in Norfolk, Va.
The case arose when lawyers for Mr. Hamdi challenged his detention, asserting that because he was a citizen he had the same constitutional rights as citizens in criminal cases, including the right to consult with a lawyer and to question the reasons for his confinement.
The appeals panel said that to deprive any citizen of his constitutional protections "is not a step than any court would casually take."
Nonetheless, in the opinion written by the circuit's chief judge, J. Harvie Wilkinson III, the court said: "The safeguards that all Americans have come to expect in criminal prosecutions do not translate neatly to the arena of armed conflict. In fact, if deference is not exercised with respect to military judgments in the field, it is difficult to see where deference would ever obtain."
The full opinion can be read on the appellate court's web site: www.ca4.uscourts.gov.
The Hamdi case appears to be the first in modern American legal history in which a citizen has been detained without being charged and without being given access to a lawyer. While Mr. Hamdi's lawyers are certain to seek a review from the Supreme Court, there is no guarantee the justices will take up the case.
Along with Mr. Hamdi, the only other American citizen being held without charges is Jose Padilla, an American accused of trying to explode a radioactive bomb in the United States. He is being held in a military brig in South Carolina.
Today's ruling may be the most far-reaching yet in a host of court cases brought on by the Bush administration's efforts in the war against terrorism.
In one case, a federal trial judge has upheld the administration's decision to hold about 600 prisoners at the Guantánamo naval base in Cuba, ruling that the laws of the United States do not apply there. Other federal judges have ruled that the Bush administration could not hold hearings on immigration violations in secret and could not withhold the names of those arrested on such charges from the public. Those rulings are making their way up through appeals courts.
The Hamdi case began with the narrow focus of whether the courts should be satisfied with a Defense Department official's two-page, nine-paragraph statement that offered a spare accounting of facts to justify the government charge that Mr. Hamdi has been properly labeled an enemy combatant. A lower court judge, Robert G. Doumar of Federal District Court, ruled in August that the declaration by Michael Mobbs, a special assistant to the deputy secretary of defense, was not sufficient.
The appeals court today reversed that finding but went much further in defining the authority of the executive branch in wartime.
"The constitutional allocation of war powers affords the president extraordinarily broad authority as commander in chief and compels courts to assume a deferential posture in reviewing exercises of this authority," the court said. While courts are entitled to review detentions when asked, the court said that, "courts are ill-positioned to police the military's distinction between those in the arena of combat who should be detained and those who should not."
The court said that it would be improper for the judicial branch to launch an exhaustive inquiry into the conditions of Mr. Hamdi's capture as requested by his lawyers. To do so, the judges said, would be to haul officers back from across the globe and the conduct of the war should not be determined by litigation.
Frank W. Dunham Jr., a federal public defender in Virginia, who argued the case for Mr. Hamdi, had asserted that the defendant was entitled to challenge the allegations that he was an enemy soldier.
But the court said that because it was "undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there."
In addition, the judges rejected appeals by Mr. Hamdi's lawyers that they should consider whether the war was at an end. Such questions, the court said, were solely the province of the president and his military advisers.
Judge Wilkinson ended the opinion today with a mention of the casualties of the Sept. 11 terrorist attacks. "It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day," he wrote. "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."
Judge Wilkinson was joined on the panel by Judge William W. Wilkins, both of whom were appointed by President Ronald Reagan. The third panel member, Judge William B. Traxler, was first named to the bench by the first President George Bush and elevated to the appeals court by President Bill Clinton.
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