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Enemy combatant { August 7 2002 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A50845-2002Aug6.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A50845-2002Aug6.html
U.S. Defies Judge on Enemy Combatant
Justice Dept. Refuses To Provide Documents
By Tom Jackman
Washington Post Staff Writer
Wednesday, August 7, 2002; Page A01
The Justice Department yesterday defied a federal judge's order to provide him with documents that would have supported the government's classification of a man captured in Afghanistan and being held in a Navy brig in Norfolk as an "enemy combatant."
Government lawyers allowed a noon deadline to pass without handing the materials over, saying that the separation of powers clause of the Constitution gives the executive branch the authority to make that determination.
"An inspection of the requested materials would all but amount to a [new] review of the military's enemy combatant determination, and thus exceed the limited standard of review governing the Executive determination at issue," the Justice Department said in a legal memo.
The argument frames the sensitive question of what rights, if any, are available to military prisoners, particularly an American-born one such as Yaser Esam Hamdi, as the United States continues its war on terrorism. The Justice Department has said that the judicial branch has little right to intervene in the conduct of the war, but yesterday's action was the first time the government has not agreed to a judge's request.
The government's action sets the stage for a constitutional confrontation tomorrow with U.S. District Judge Robert G. Doumar in Norfolk. Doumar has twice ordered the government to allow a lawyer to visit Hamdi, and twice the government successfully obtained stays of Doumar's order.
Doumar is scheduled to hear arguments tomorrow on whether the government's enemy combatant classification was proper and whether Hamdi could see a lawyer. After Doumar ruled that Hamdi was entitled to counsel, the 4th U.S. Circuit Court of Appeals ordered him last month to reconsider, giving great deference to the government's wartime determinations. Doumar then told prosecutors to provide him with copies of Hamdi's statements, notes from interviewers, a chronology of his locations, and the names and addresses of his interrogators. Doumar said he would review the information privately.
Prosecutors instead filed a motion asking Doumar to drop his request.
"Such intrusive discovery is unnecessary in this case," wrote Assistant U.S. Attorney Lawrence R. Leonard and the solicitor general's office. "None of the materials listed in the court's July 31 order is within the scope of a proper inquiry into Hamdi's legal status."
Stephen Dycus, a national security law expert at the University of Vermont, said he could not think of any other time the government ignored a court's order. "I don't think the Justice Department has the power to simply defy the court," he said. " . . . I don't remember anything in the 4th Circuit's order that would limit the District Court's ability to look into the national security necessity for keeping this guy."
Hamdi was captured in Afghanistan in November and sent to Guantanamo Bay, Cuba, but when investigators learned that he was born in Louisiana, he was transferred to Norfolk. The federal public defender for Eastern Virginia, Frank W. Dunham Jr., began efforts to meet with Hamdi in case the government decided to charge him.
However, the government had labeled Hamdi an enemy combatant and said he is not entitled to counsel. Dunham and Hamdi's father, Esam Fouad Hamdi, filed a motion with Doumar seeking access to the detainee.
Doumar granted the request, and the government appealed to the 4th Circuit in Richmond. A three-judge panel's ruling July 12 sent the case back to Doumar, saying he needed to have more facts and hear more arguments.
The opinion, written by Chief Judge J. Harvie Wilkinson III, advised Doumar that "the political branches are best positioned to comprehend this global war in its full context and it is the President who has been charged to use force against those nations, organizations, or persons he determines were responsible for the September 11 terrorist attacks."
But Wilkinson also wrote that some judicial review is necessary, otherwise "any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel."
A week later, Doumar asked the government to explain why it was holding Hamdi, and on July 25, prosecutors submitted a two-page declaration by Michael H. Mobbs, a Defense Department special adviser on enemy combatants.
Mobbs wrote that Hamdi traveled to Afghanistan in July or August of last year, joined a Taliban military unit, received weapons training and remained with his unit after the Sept. 11 attacks.
Prosecutors believe that Mobbs's declaration should be sufficient for Doumar's needs. "Under the fundamental separation of powers principles recognized by the 4th Circuit . . . in justifying the detention of captured enemy combatants in wartime, the military should not need to supply a court with the raw notes from interviews with a captured enemy combatant . . . or the other types of information listed in the court's order," Leonard wrote.
A Justice Department spokesman declined to comment. Dunham said "the government's doing everything it can to avoid reaching the merits of the case."
Dycus suggested that prosecutors, mindful that the case is being closely watched by lawyers and civil libertarians, "must have in mind setting some precedent that would be helpful to them in certain other cases."
© 2002 The Washington Post Company
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