On Dec. 9, the Supreme Court _ over the strong objections of the Bush administration _ agreed to hear a crucial test of the president's power to imprison an American citizen as an enemy combatant indefinitely, without charges, and without continuing access to a lawyer.
The citizen, Yaser Hamdi, was captured in Afghanistan by bounty hunters in the Northern Alliance, allegedly caught fighting for the Taliban, and turned over to American forces. A federal district judge ruled that the evidence against Hamdi has not been fully proved, but the 4th U.S. Circuit Court of Appeals, in an 8-4 decision, ruled that the president can hold Hamdi indefinitely without charges and without any prospect of a trial.
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 Hamdi.
In November, during oral arguments on Hamdi's case before the 2nd U.S. 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 Hamdi up under these conditions. The 2nd Circuit's Dec. 18 actual decision stated exactly that.
Significantly, although the third judge on the 2nd 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 Hamdi the right to see his lawyer.
Accordingly, the government's abrupt decision to let 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 Hamdi access to a lawyer at this time "is not required by domestic or international law and should not be treated as a precedent."
Moreover, Solicitor General Theodore Olson, in the government's brief to the Supreme Court, emphasized that the administration does not agree that it has any obligation to let Hamdi see a lawyer. It said it made an exception because it had finished questioning him.
I expect, therefore, that the Supreme Court will see through the government's stratagem to let a lawyer slide into the Navy brig only by the sufferance of the government.
What the justices will have to deal with are the findings of the majority of the 2nd U.S. Circuit Court of Appeals. First, in 1971, in reaction to the shameful herding of Japanese-Americans into detention camps during World War II, Congress passed the Non-Detention Act, which declares unambiguously that "no citizen shall be . . . detained by the United States except pursuant to an Act of Congress."
But the administration claims that the Congressional Authorization for Use of Military Force, passed in September 2001, gives the president that unilateral authority in order to go after the terrorists who committed the Sept. 11 attacks, and continue to operate worldwide. However, the 2nd Circuit held that this post-Sept. 11 resolution does not authorize the president to detain American citizens _ let alone without charges _ indefinitely, and with no access to a lawyer.
Neal Sonnet, chair of the American Bar Association's task force on enemy combatants, said on ABC's Nightline on Jan. 9 about the administration's insistence that the courts must defer to it in these matters: "The administration has gone beyond the bounds. They have arrogated power to themselves that has never been done before in the history of this country."
Actually, Abraham Lincoln did just that during the Civil War, suspending habeas corpus and herding dissenters before military tribunals. However, in 1866, the Supreme Court ruled that "the Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." Lincoln had defied the Constitution.
George W. Bush, too, has denied citizen Yaser Hamdi the most fundamental due process rights at the very core of our rule of law. Will the Constitution survive high noon at the Supreme Court?
+ Syndicated columnist Nat Hentoff is an authority on the First Amendment and the rest of the Bill of Rights. +
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