| In a legal argument that could
as easily be used to justify a declaration of martial law,
the Justice Department has asserted the right of the President
and the military to indefinitely hold US citizens deemed "enemy
combatants" incommunicado, without formal charges, the
right to a hearing or legal counsel. This assertion of extra-constitutional
powers came in a protracted legal tug-of-war over Yaser Esam
Hamdi, a 21-year-old detainee who was captured in Afghanistan
and brought to the US detention camp at the Guantanamo Bay
naval base in Cuba. Earlier this year, after it was discovered
that he was born in Louisiana and in all likelihood is entitled
to US citizenship, he was transferred to a Navy brig in Virginia.
The Bush administration has waged a ferocious battle to block
any judicial hearing to determine Hamdi’s status and
any contact between the detainee and public defenders seeking
to represent him. While a lower court ruled that he had the
right to consult with a lawyer, the Justice Department filed
an appeal barring any meeting. After blocking Federal Public
Defender Frank W. Dunham Jr. from seeing Hamdi, it argued
in court that the attorney had no standing in the case because
he "has no relationship" with the detainee.
The 46-page government brief affirms that "the military
has the authority to capture and detain individuals whom it
has determined are enemy combatants in connection with hostilities
in which the Nation is engaged, including enemy combatants
claiming American citizenship. Such combatants, moreover,
have no right of access to counsel to challenge their detention."
It goes on to assert that it makes no difference whether the
alleged combatants are captured overseas or in the United
States.
In a derisive attack on the US District Court Judge who ordered
the military to allow Hamdi to meet with an attorney, the
Justice Department insisted that once deemed an
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enemy combatant, an individual
has no rights, and that the courts have no business questioning
the decisions of the military. "A court’s inquiry
should come to an end once the military has shown ... that
it has determined that the detainee is an enemy combatant,"
the brief states. "The court may not second-guess the
military’s enemy-combatant determination."
For the courts to question in any way an order by the military
or the president to grab someone off the street and lock him
up for life as an "enemy," the Justice Department
argued, would constitute interference in "an area in
which they have no competence, much less institutional expertise,"
and would "intrude upon the constitutional prerogative
of the Commander in Chief." The brief goes on to warn
ominously against creating "a conflict of military and
judicial opinion highly comforting to the enemies of the United
States."
The legal arguments for such sweeping police-state powers
are unprecedented, as are the actions that have already been
taken by the Bush administration in holding individuals prisoners
of the military without hearings or trial. In addition to
Hamdi, the government has announced plans to continue holding
Jose Padilla, the Brooklyn-born US citizen who was grabbed
by FBI agents last month as he deplaned from an international
flight to Chicago. Padilla likewise is being held in a military
brig without charges or a hearing, and the government has
refused to allow his attorney to see him. Justice Department
officials admit that they lack sufficient evidence to indict
Padilla on allegations that he was part of a plot to detonate
a radioactive "dirty bomb."
In its brief in the Hamdi case, the government leaned heavily
on a 1942 Supreme Court decision allowing a military trial
of German saboteurs arrested in the US. That decision, however,
affirmed the defendants' right to appeal their status
in federal court, a right the Bush administration is abrogating.
Nor did the high court then allow for indefinite detention
and denial of counsel. |
