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Terrorism Against the Constitution

by ELAINE CASSEL

The 12 judges–the full panel–of the 4th Circuit U.S. Court of Appeals, the most conservative federal court in the United States, has refused to do its constitutional duty and engage in meaningful judicial review, thus handing the Bush regime a big win in its battle to rewrite the Constitution.

In the case of Hamdi v. Rumsfeld, the en banc panel denied a rehearing for Yaser Hamdi, 22, the U.S. citizen captured in Afghanistan in November 2001 allegedly fighting for the Taliban in a combat zone of Afghanistan. Hamdi has been held in a navy brig in Norfolk Virginia since shortly after his capture. His case arose when the federal public defender in Alexandria, Virginia, Frank Dunham, sued to gain access to Hamdi and provide legal services to him.

Judge Doumar of the U.S. District Court had ordered that Hamdi have access to Dunham. In fact, Doumar was outraged by the government’s assertion that Bush could even name someone an “enemy combatant” and deny them not only rights due American citizens but rights under International law.

The government appealed Judge Doumar’s ruling to the 4th Circuit. In January 2003, the original panel of three judges affirmed the government’s designation of Hamdi as an “enemy combatant,” saying he was entitled only to a limited judicial inquiry into that decision.

Limited means that the original panel of three judges looked at the scant affidavit of a mid-level Pentagon bureaucrat who claimed that Hamdi was an “enemy combatant” connected with Al Qaeda. The panel accepted the Pentagon’s affidavit without question, saying that they would not interfere with the President in a time of “war.” If the President chooses to name someone as an enemy combatant and lock them up forever without attorney or any process against him, well that was just fine with them.

Dunham appealed to the full court to rehear the case. But the order, by a vote of 8-4, leaves undisturbed the January decision. Two judges issued opinions supporting the order and two dissented. But lest you get your hopes up, only one judge, Diana Motz, made an argument for due process under the Constitution. The other dissenting judge, Judge J. Michael Luttig, who aspires to be on the U.S. Supreme Court and may even be to the right of Antonin Scalia (if that is possible), wanted the full court to hear the case so that it could say unequivocally that the affidavit fully supported the President’s actions. In other words, Luttig wanted the full panel to look at the case–not not look at it–and to rule resoundingly for the government.

Luttig wrote that the January opinion had not gone far enough in supporting the administration’s right to detain enemies in wartime. He wrote that the court disowned its “promise to the executive to accord him the substantial deference to which he is constitutionally entitled for his wartime decisions as to who constitute enemies of the United States.”

Chief Judge J. Harvie Wilkinson, who was also on the original panel denying Hamdi’s challenge to his incarceration, said in his concurring opinion supporting the decision,”The ingredients essential to military success­its planning, tactics and intelligence­are beyond our ken, and the courtroom is a poor vantage point for the breadth of comprehension that is required to conduct a military campaign on foreign soil.”

Arguing for the Constitution, Judge Motz wrote, “The panel’s decision marks the first time in our history that a federal court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the executive’s designation of that citizen as an enemy combatant, without testing the accuracy of the designation. Neither the Constitution nor controlling precedent sanction this holding.”

The decision may be bad news for Ali S. Marri, a Qatari man who has been in federal custody since January 2002. He was charged with being part of a “sleeper cell” in this country and awaiting trial in federal court in Illinois, when on July 8, 2003 the government suddenly dropped its case and moved him to a military prison after Bush declared him an enemy combatant. Like Hamdi, Marri will have no attorney in a military tribunal, but is attorney vows to file for a writ of habeas corpus in federal court.

Jose Padilla, the so-called would-be “dirty shoe” bomber and an American citizen, is also being held without charges as an enemy combatant. But neither Padilla nor Marri were captured on foreign soil, and that being the underlying rationale for the Hamdi decision, the door may be open for a different result in their cases.

Dunham says he will appeal the case to the U.S. Supreme Court.

 

 

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