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Hamdi, Enemy Combatants and Rubberstamping the Shredding of Constitutional Rights
Hamdi, Enemy Combatants and the Courts
by JOANNE MARINER

The cases of “enemy combatants” detained in naval brigs in Virginia and South Carolina, and on the U.S. naval base on Guantanamo, are gradually making their way up to the Supreme Court. One thing about these cases is certain: the courts that rule on them will fill their opinions with inspiring language about liberty, justice, and individual rights.

This generalization will hold true whether the court in question decides to protect the rights of the detainee, or whether, as the U.S. Court of Appeals for the Fourth Circuit did in a recent ruling, the court decides to rubber-stamp the actions of the executive branch. While many judges fail to acknowledge the Constitution’s substantive application in limiting reliance on indefinite detention, they uniformly show deference to the document’s rhetorical demands.

Thus it comes as no surprise to find the Fourth Circuit invoking the Bill of Rights, due process, and individual freedoms in its opinion in Hamdi v. Rumsfeld, issued earlier this month. Like the court’s prior ruling in the case, the January 8 opinion pays abundant lip service to the very rights that it fails to protect.

Detention Without Charges or Counsel for Over a Year

Yaser Hamdi, whose name reflects his Saudi Arabian parentage, is a Louisiana-born man who allegedly fought on the side of the Taliban in Afghanistan. Having been taken into custody by U.S. forces in late 2001, he was held in incommunicado detention on Guantanamo for a few months and, in April 2002, was transferred to a naval brig in Norfolk, Virginia.

Like the detainees who remain on Guantanamo–and like Jose Padilla, an American citizen detained in a naval brig in South Carolina–Hamdi is, according to the U.S. government, an “enemy combatant.”

What this means is that even though Hamdi has been detained for over a year and subject to interrogation while in U.S. custody, he has been denied all access to legal counsel and to the courts. The petition for a writ of habeas corpus at issue in this case was filed on Hamdi’s behalf by his father.

None of the past legal precedents cited by the government to justify Hamdi’s incommunicado detention involve a like deprivation of basic constitutional rights. Prior to the current crop of “enemy combatant” cases, the courts had never upheld the indefinite detention of American citizens without charges and without access to counsel.

Indefinite Detention “On the Government’s Say-So”

In an opinion in the Hamdi case that the Fourth Circuit issued in July, the court proclaimed that it could not embrace the “sweeping proposition . . . 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.” These words, widely quoted in the media, were taken as proof that the federal courts would not meekly accede to every action taken by the government in the name of the war on terrorism.

Although the Fourth Circuit in that ruling reversed an order of the district court that had mandated that the government grant Hamdi access to counsel, its opinion appeared to suggest that the district court should perform a “meaningful” review of Hamdi’s detention. That, at any rate, is what the district court proceeded to do.

Predictably, the district court’s requests that the government explain its factual basis for detaining Hamdi were strenuously rejected. Insisting that the district court accept, at face value, a brief nine-paragraph declaration on Hamdi’s detention written by a Defense Department functionary-that the court, in other words, bar Hamdi from disputing any of the allegations made by the government regarding the circumstances of his detention–the government appealed the district court’s production order back up to the Fourth Circuit.

With that appeal, it was up to the Fourth Circuit to demonstrate precisely what it had meant by “meaningful judicial review.”

Enemy Combatants, Journalists, and Aid Workers

The Fourth Circuit’s January 8 opinion suggests that meaningful is, well, a flexible word. Indeed, the appellate court needed only a single fact to ratify Hamdi’s indefinite, incommunicado detention.

In the view of the court, the fact that “it is undisputed that [Hamdi] was captured in a zone of active combat operations abroad” provided sufficient factual grounds for the government’s actions. Although the government, in the nine-paragraph declaration it submitted regarding the detention, made additional allegations–for example, that Hamdi carried an AK-47 when he was captured–none of these alleged facts were relied on in the court’s broad holding.

The reason these facts were not taken into account is that, before basing its ruling on disputed facts, the court might have had to allow Hamdi to challenge the veracity of the allegations in court. To keep Hamdi out of court–and perhaps more importantly, in the government’s view, to keep him away from a lawyer–the appellate court took the safe course of basing its ruling on undisputed facts.

But the safe course, from this perspective, resulted in a scarily broad holding. On the Fourth Circuit’s reasoning, any journalist, aid worker, or human rights investigator found in Afghanistan could be detained indefinitely as an enemy combatant. As the district court had pointed out in an earlier order in the case, it should be at least necessary to ascertain whether Hamdi (or anyone else in his circumstances) was a combatant in Afghanistan “or just a bystander.”

In an editorial on the Hamdi case, the Wall Street Journal applauded the Fourth Circuit’s decision, stating that “no one, including Hamdi” disputes the fact that he was trained by Al Qaeda, belonged to the Taliban, and was picked up in Afghanistan with an AK-47 in his hands. But since neither the court nor the Wall Street Journal’s writers have had any contact with Hamdi, their claims seem purposefully obtuse.

Their statement is only true in the most trivial sense: that Hamdi has been granted no opportunity to dispute these or any other fact.

In the truly meaningful sense–as in meaningful judicial review–no facts are clear in this case. What fact can be considered undisputed when Hamdi, the only person with the knowledge necessary to dispute the facts, has had no access to the court? Even the fact of Hamdi’s capture in Afghanistan–although it went unchallenged by Hamdi’s father–cannot be deemed entirely reliable.

Of Terrorism and Careerism

In closing, it is worth noting some additional, salient context: there has been much talk that the Bush administration is considering Judge J. Harvie Wilkinson, the author of the Fourth Circuit’s opinion in Hamdi, as a potential Supreme Court nominee. (Granted, Wilkinson isn’t actually named as the sole author of the opinion, but it is overwhelmingly likely that he is, in fact, the author: He is Chief Judge and thus likely to dominate the court’s most significant cases, of which this is certainly one; he wrote the court’s previous two opinions in the case; and his handwriting is all over this one.) No doubt Wilkinson’s opinion in Hamdi will help his chances for a promotion to the Supremes.

If anyone doubts that the war on terrorism is a job fair for ambitious conservatives, just keep a close eye on the Bush administration’s nominees over the coming year. Already, Assistant Attorney General Michael Chertoff, who currently directs the Justice Department’s work on terrorism, is about to be named to the U.S. Court of Appeals for the Third Circuit.

Chertoff may end up being the first among many. Catholic University law dean Douglas W. Kmiec, who submitted a friend of the court brief in support of the government’s position in Hamdi–and who subsequently published an opinion piece in the ultra-conservative National Review applauding the Hamdi ruling–is being considered by the White House for a position on the U.S. Court of Appeals for the District of Columbia. And White House Counsel Alberto Gonzales, the brains behind the administration’s views on enemy combatants and military commissions, has emerged as another favorite for a Supreme Court nomination.

Prospects for Robert Doumar, the district court judge whose Hamdi rulings the Fourth Circuit so dismissively reversed, are less bright. Although the appellate courts urgently need judges of his moral courage and constitutional understanding, he has probably guaranteed himself an indefinite stay at the trial court level. At least defendants can be assured that he’ll do his best to be fair.

JOANNE MARINER is a human rights llawyer in New York. This article was originally published by Writ FindLaw. She can be reached at: mariner@counterpunch.org.