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Enemy combantant { August 14 2002 }

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Judge Skewers U.S. Curbs on Detainee

By Tom Jackman
Washington Post Staff Writer
Wednesday, August 14, 2002; Page A10

NORFOLK, Aug. 13 -- Line by line, a federal judge today dissected the government's reasoning for holding Yaser Esam Hamdi incommunicado in a Navy brig here and indicated that he didn't think prosecutors provided enough facts for him to decide whether Hamdi should have access to a lawyer.

U.S. District Judge Robert G. Doumar said he would soon rule on a request by Hamdi's father to allow a federal public defender to visit Hamdi, who was captured in Afghanistan with Taliban forces in November, taken to Guantanamo Bay, Cuba, with other prisoners, then moved here when he told authorities that he was born in the United States. The government has declared Hamdi an "unlawful enemy combatant," entitled to neither constitutional protections nor international prisoner-of-war status.

Doumar sparred repeatedly with the government's lawyer over why Hamdi was an enemy combatant and what exactly that meant, saying the government appeared to be trying to place unprecedented restrictions on a prisoner's rights.

"I tried valiantly to find a case of any kind, in any court, where a lawyer couldn't meet" with a client, Doumar said. "This case sets the most interesting precedent in relation to that which has ever existed in Anglo-American jurisprudence since the days of the Star Chamber," a reference to English kings' secret court from the 1400s to the 1600s.

Doumar twice has granted requests to visit Hamdi, and the 4th U.S. Circuit Court of Appeals in Richmond has twice intervened and prevented the visits. Last month, the appeals court instructed Doumar to revisit the case with greater consideration to national security and the executive branch's constitutional right to wage war.

The government then filed a two-page declaration of facts, by Michael H. Mobbs, a special adviser in the Defense Department, explaining how Hamdi was determined to be an enemy combatant. When Doumar asked the government for additional information, prosecutors declined. The 4th Circuit told Doumar last week to consider first whether the Mobbs declaration was sufficient to decide whether the government had good reason to label Hamdi an enemy combatant.

Doumar began the hearing by saying he would focus exclusively on the Mobbs declaration. But he added, "If I rely on this, then I must pick it apart. And if you gave me the information, then all of this could have been avoided."

For the next hour, he proceeded to pepper Assistant Solicitor General Gregory G. Garre with questions both momentous and minimal: Who is Mobbs? And what qualified him to be a "special adviser"?

Garre said Mobbs was an undersecretary of defense, substantially involved with detainee issues.

"My secretary's familiar with the Hamdi case," the judge said. "Should she decide? She's a special adviser."

Doumar noted that the declaration doesn't say how long Hamdi would need to be detained and for what purpose: "How long does it take to question a man?" the judge asked. "A year? Two years? Ten years? A lifetime?"

Garre said he couldn't answer that now "any better than we could 11 months after Pearl Harbor."

Garre declined to take the judge's bait, frequently referring Doumar to the government's pleadings or the 4th Circuit's rulings. "I tell you, it's hard to get an answer out of you," the judge told Garre at one point.

In a typical exchange, Doumar asked, "Can the military do anything they want with him, without a tribunal?"

"The present detention is lawful," Garre said.

Doumar asked again, "What restraints are there?" Garre said Hamdi had asked to speak to diplomats from Saudi Arabia, where he was raised.

"Can I beg you to answer my question?" Doumar then said. "If the military sat him in boiling oil, would that be lawful?" Garre said he didn't think anyone had suggested that.

Doumar said it seemed too easy to call someone an unlawful combatant and use it to hold someone indefinitely: "If the man next door to you is an unlawful combatant, maybe Mr. Mobbs could say you're an enemy combatant."

Federal Public Defender Frank W. Dunham Jr. pointed out that Mobbs's declaration doesn't use the words "unlawful enemy combatant."

Garre said that Mobbs was merely providing the factual foundation and that the military had made the decision. "The reason why the courts have a limited role is, under our constitutional system, the executive [branch] is the branch which is in the best position to make the military determination," Garre said.

Doumar confirmed with Garre that the government would provide no more information beyond the Mobbs declaration, which he said had "certain omissions that seem substantial," such as specifics about Hamdi's battle experience and why he was brought to Norfolk. "If that is sufficient standing alone," the judge said, "to put him in a cell without windows for six months or 10 months or four months or whatever it is, then so be it. I have some real doubts about that."

If Doumar determines that the Mobbs declaration isn't enough for him to make a decision, he could again order the government to turn over its interrogators' notes on Hamdi, its records of his movements and his chronology of custody.

"I have no desire to have an enemy combatant get out of any status," Doumar said. "However, I do think that due process requires something other than a basic assertion by someone named Mobbs that they have looked at some papers and therefore they have determined he should be held incommunicado. Just think of the impact of that. Is that what we're fighting for?"

2002 The Washington Post Company

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