FacebookTwitterGoogle+RedditEmail

Hamdi, Enemy Combatants and the Courts

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.

 

More articles by:

JOANNE MARINER is a human rights lawyer living in New York and Paris.

February 19, 2019
Richard Falk – Daniel Falcone
Troublesome Possibilities: The Left and Tulsi Gabbard
Patrick Cockburn
She Didn’t Start the Fire: Why Attack the ISIS Bride?
Evaggelos Vallianatos
Literature and Theater During War: Why Euripides Still Matters
Maximilian Werner
The Night of Terror: Wyoming Game and Fish’s Latest Attempt to Close the Book on the Mark Uptain Tragedy
Conn Hallinan
Erdogan is Destined for Another Rebuke in Turkey
Nyla Ali Khan
Politics of Jammu and Kashmir: The Only Viable Way is Forward
Mark Ashwill
On the Outside Looking In: an American in Vietnam
Joyce Nelson
Sir Richard Branson’s Venezuelan-Border PR Stunt
Ron Jacobs
Day of Remembrance and the Music of Anthony Brown        
Cesar Chelala
Women’s Critical Role in Saving the Environment
February 18, 2019
Paul Street
31 Actual National Emergencies
Robert Fisk
What Happened to the Remains of Khashoggi’s Predecessor?
David Mattson
When Grizzly Bears Go Bad: Constructions of Victimhood and Blame
Julian Vigo
USMCA’s Outsourcing of Free Speech to Big Tech
George Wuerthner
How the BLM Serves the West’s Welfare Ranchers
Christopher Fons
The Crimes of Elliot Abrams
Thomas Knapp
The First Rule of AIPAC Is: You Do Not Talk about AIPAC
Mitchel Cohen
A Tale of Two Citations: Rachel Carson’s “Silent Spring” and Michael Harrington’s “The Other America”
Jake Johnston
Haiti and the Collapse of a Political and Economic System
Dave Lindorff
It’s Not Just Trump and the Republicans
Laura Flanders
An End to Amazon’s Two-Bit Romance. No Low-Rent Rendezvous.
Patrick Walker
Venezuelan Coup Democrats Vomit on Green New Deal
Natalie Dowzicky
The Millennial Generation Will Tear Down Trump’s Wall
Nick Licata
Of Stress and Inequality
Joseph G. Ramsey
Waking Up on President’s Day During the Reign of Donald Trump
Elliot Sperber
Greater Than Food
Weekend Edition
February 15, 2019
Friday - Sunday
Matthew Hoh
Time for Peace in Afghanistan and an End to the Lies
Chris Floyd
Pence and the Benjamins: An Eternity of Anti-Semitism
Rob Urie
The Green New Deal, Capitalism and the State
Jim Kavanagh
The Siege of Venezuela and the Travails of Empire
Paul Street
Someone Needs to Teach These As$#oles a Lesson
Andrew Levine
World Historical Donald: Unwitting and Unwilling Author of The Green New Deal
Jeffrey St. Clair
Roaming Charges: Third Rail-Roaded
Eric Draitser
Impacts of Exploding US Oil Production on Climate and Foreign Policy
Ron Jacobs
Maduro, Guaidó and American Exceptionalism
John Laforge
Nuclear Power Can’t Survive, Much Less Slow Climate Disruption
Joyce Nelson
Venezuela & The Mighty Wurlitzer
Jonathan Cook
In Hebron, Israel Removes the Last Restraint on Its Settlers’ Reign of Terror
Ramzy Baroud
Enough Western Meddling and Interventions: Let the Venezuelan People Decide
Robert Fantina
Congress, Israel and the Politics of “Righteous Indignation”
Dave Lindorff
Using Students, Teachers, Journalists and other Professionals as Spies Puts Everyone in Jeopardy
Kathy Kelly
What it Really Takes to Secure Peace in Afghanistan
Brian Cloughley
In Libya, “We Came, We Saw, He Died.” Now, Maduro?
Nicky Reid
The Councils Before Maduro!
Gary Leupp
“It’s All About the Benjamins, Baby”
FacebookTwitterGoogle+RedditEmail