Detaining Hamdi; A Crucial Test for the Supreme Court
Byline: Nat Hentoff, THE WASHINGTON TIMES
Of all the actions taken by the Bush administration in the war on terrorism, none has been more controversial - across the political spectrum - than the president's empowering only himself to imprison an American citizen as an enemy combatant - without charges, indefinitely and without continuous access to a lawyer. This case, Hamdi vs. Rumsfeld, is now before the Supreme Court, despite the strong objections of the government, which urged the court not to take it.
The citizen, Yaser Hamdi, was captured in Afghanistan by bounty hunters in the Northern Alliance. He was allegedly caught fighting for the Taliban and turned over to American forces. A federal district judge ruled that the evidence against Mr. Hamdi has not been fully proved. But the Fourth Circuit Court of Appeals, in an 8-4 decision, ruled that the president has enough basis to hold Mr. Hamdi indefinitely without charges and without any prospect of a trial.
Mr. Hamdi, in a Navy brig for two years on American soil, had been denied any access to his lawyer. But suddenly, on Dec. 2, the Defense Department announced that he would be able to see his attorney - just a day before the Justice Department was required to file a brief before the Supreme Court regarding Mr. Hamdi.
In November, during oral arguments on Mr. Hamdi's case before the Second Circuit Court of Appeals, two of the three judges harshly rebuked the administration, signaling that the panel would find that the president does not have the constitutional authority - without the approval of Congress - to lock Mr. Hamdi up under these conditions. The Second Circuit's actual Dec. 18 decision stated exactly that.
Significantly, although the third judge on the Second Circuit panel supported the president's position, he did agree with the majority that the president, though acting as commander in chief in a military decision, did not have the authority to deny Mr. Hamdi the right to see his lawyer (whom he needed in order to help contest the government's case against him).
Accordingly, the government's abrupt decision to let Mr. Hamdi see his attorney seemed to be a transparent attempt to improve its position before the Supreme Court. However, the nine justices will still have to confront the Sixth Amendment question of this citizen's right to counsel, because the Defense Department has made it clear that giving Mr. Hamdi access to a lawyer at this time "is not required by domestic or international law and should not be treated as a precedent. …