Suspending Habeas Corpus. (the Last Word)

Article excerpt

Some things are true even if the Washington Post says them. Reviewing the Bush administration's conduct in the case of accused terrorist Yaser Esam Hamdi, a June 20th Post editorial concluded that under the powers claimed by the administration, "any American could be locked up indefinitely, without a lawyer, on the president's say-so."

Hamdi was among the Taliban and al-Qaeda personnel captured by U.S. forces in Afghanistan. After Hamdi was transported to the U.S. detention center in Guantanamo Bay, Cuba, it was learned that he had been born in Louisiana, and may retain U.S. citizenship. He was relocated to a Navy brig in Norfolk, Virginia, where he has been held incommunicado. As an American citizen, Hamdi would have the right to legal counsel. A federal judge ordered the administration to allow Federal Public Defender Frank Dunham to have access to Hamdi.

Responding to an administration request, the Fourth Circuit Court of Appeals ruled that because Dunham has never met Hamdi (military officials prevented the meeting from taking place), he could not represent the detainee. After Dunham filed an action on behalf of the accused terrorist's father, he was granted a judicial motion ordering the administration to allow the attorney to meet the detainee. On June 19th, the BushAshcroft Justice Department filed another brief with the Fourth Circuit Court outlining a claim of presidential power that is breathtaking in its scope and bone-chilling in its implications.

According to the Bush administration's brief, "the military has the authority to capture and detain individuals whom it has determined are enemy combatants ... including enemy combatants claiming American citizenship. Such combatants, moreover, have no right of access to counsel to challenge their detention." Furthermore, continues, the brief, "the Court may not second-guess the military's enemy-combatant determination" because by doing so they would intrude on "the President's plenary authority as Commander in Chief," which supposedly includes the power to establish policies concerning "the capture, detention, and treatment of the enemy and the collection and evaluation of intelligence vital to national security."

This amounts to suspending the HABEAS CORPUS guarantee, the "Great Writ" that is the foundation of our system of justice under law. The administration's brief contends that "in time of active conflict, a court considering a properly filed habeas action generally should accept the military's determination that a detainee is an enemy combatant. Going beyond that determination ... [would] intrude upon the constitutional prerogative of the Commander in Chief (and military authorities acting at his control). …