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CounterPunch
January
22, 2003
Into a Black
Hole
Hamdi,
Enemy Combatants and Rubberstamping the Shredding of Constitutional
Rights
by JOANNE MARINER
The cases of "enemy combatants" detained
in naval brigs in Virginia and South Carolina, and on the U.S.
naval base on Guantanamo, are gradually making their way up to
the Supreme Court. One thing about these cases is certain: the
courts that rule on them will fill their opinions with inspiring
language about liberty, justice, and individual rights.
This generalization will hold true whether
the court in question decides to protect the rights of the detainee,
or whether, as the U.S. Court of Appeals for the Fourth Circuit
did in a recent ruling, the court decides to rubber-stamp the
actions of the executive branch. While many judges fail to acknowledge
the Constitution's substantive application in limiting reliance
on indefinite detention, they uniformly show deference to the
document's rhetorical demands.
Thus it comes as no surprise to find
the Fourth Circuit invoking the Bill of Rights, due process,
and individual freedoms in its opinion in Hamdi v. Rumsfeld,
issued earlier this month. Like the court's prior ruling in the
case, the January 8 opinion pays abundant lip service to the
very rights that it fails to protect.
Detention Without
Charges or Counsel for Over a Year
Yaser Hamdi, whose name reflects his
Saudi Arabian parentage, is a Louisiana-born man who allegedly
fought on the side of the Taliban in Afghanistan. Having been
taken into custody by U.S. forces in late 2001, he was held in
incommunicado detention on Guantanamo for a few months and, in
April 2002, was transferred to a naval brig in Norfolk, Virginia.
Like the detainees who remain on Guantanamo--and
like Jose Padilla, an American citizen detained in a naval brig
in South Carolina--Hamdi is, according to the U.S. government,
an "enemy combatant."
What this means is that even though Hamdi
has been detained for over a year and subject to interrogation
while in U.S. custody, he has been denied all access to legal
counsel and to the courts. The petition for a writ of habeas
corpus at issue in this case was filed on Hamdi's behalf by his
father.
None of the past legal precedents cited
by the government to justify Hamdi's incommunicado detention
involve a like deprivation of basic constitutional rights. Prior
to the current crop of "enemy combatant" cases, the
courts had never upheld the indefinite detention of American
citizens without charges and without access to counsel.
Indefinite
Detention "On the Government's Say-So"
In an opinion in the Hamdi case that
the Fourth Circuit issued in July, the court proclaimed that
it could not embrace the "sweeping proposition . . . that,
with no meaningful judicial review, any American citizen alleged
to be an enemy combatant could be detained indefinitely without
charges or counsel on the government's say-so." These words,
widely quoted in the media, were taken as proof that the federal
courts would not meekly accede to every action taken by the government
in the name of the war on terrorism.
Although the Fourth Circuit in that ruling
reversed an order of the district court that had mandated that
the government grant Hamdi access to counsel, its opinion appeared
to suggest that the district court should perform a "meaningful"
review of Hamdi's detention. That, at any rate, is what the district
court proceeded to do.
Predictably, the district court's requests
that the government explain its factual basis for detaining Hamdi
were strenuously rejected. Insisting that the district court
accept, at face value, a brief nine-paragraph declaration on
Hamdi's detention written by a Defense Department functionary-that
the court, in other words, bar Hamdi from disputing any of the
allegations made by the government regarding the circumstances
of his detention--the government appealed the district court's
production order back up to the Fourth Circuit.
With that appeal, it was up to the Fourth
Circuit to demonstrate precisely what it had meant by "meaningful
judicial review."
Enemy Combatants,
Journalists, and Aid Workers
The Fourth Circuit's January 8 opinion
suggests that meaningful is, well, a flexible word. Indeed, the
appellate court needed only a single fact to ratify Hamdi's indefinite,
incommunicado detention.
In the view of the court, the fact that
"it is undisputed that [Hamdi] was captured in a zone of
active combat operations abroad" provided sufficient factual
grounds for the government's actions. Although the government,
in the nine-paragraph declaration it submitted regarding the
detention, made additional allegations--for example, that Hamdi
carried an AK-47 when he was captured--none of these alleged
facts were relied on in the court's broad holding.
The reason these facts were not taken
into account is that, before basing its ruling on disputed facts,
the court might have had to allow Hamdi to challenge the veracity
of the allegations in court. To keep Hamdi out of court--and
perhaps more importantly, in the government's view, to keep him
away from a lawyer--the appellate court took the safe course
of basing its ruling on undisputed facts.
But the safe course, from this perspective,
resulted in a scarily broad holding. On the Fourth Circuit's
reasoning, any journalist, aid worker, or human rights investigator
found in Afghanistan could be detained indefinitely as an enemy
combatant. As the district court had pointed out in an earlier
order in the case, it should be at least necessary to ascertain
whether Hamdi (or anyone else in his circumstances) was a combatant
in Afghanistan "or just a bystander."
In an editorial on the Hamdi case, the
Wall Street Journal applauded the Fourth Circuit's decision,
stating that "no one, including Hamdi" disputes the
fact that he was trained by Al Qaeda, belonged to the Taliban,
and was picked up in Afghanistan with an AK-47 in his hands.
But since neither the court nor the Wall Street Journal's writers
have had any contact with Hamdi, their claims seem purposefully
obtuse.
Their statement is only true in the most
trivial sense: that Hamdi has been granted no opportunity to
dispute these or any other fact.
In the truly meaningful sense--as in
meaningful judicial review--no facts are clear in this case.
What fact can be considered undisputed when Hamdi, the only person
with the knowledge necessary to dispute the facts, has had no
access to the court? Even the fact of Hamdi's capture in Afghanistan--although
it went unchallenged by Hamdi's father--cannot be deemed entirely
reliable.
Of Terrorism
and Careerism
In closing, it is worth noting some additional,
salient context: there has been much talk that the Bush administration
is considering Judge J. Harvie Wilkinson, the author of the Fourth
Circuit's opinion in Hamdi, as a potential Supreme Court nominee.
(Granted, Wilkinson isn't actually named as the sole author of
the opinion, but it is overwhelmingly likely that he is, in fact,
the author: He is Chief Judge and thus likely to dominate the
court's most significant cases, of which this is certainly one;
he wrote the court's previous two opinions in the case; and his
handwriting is all over this one.) No doubt Wilkinson's opinion
in Hamdi will help his chances for a promotion to the Supremes.
If anyone doubts that the war on terrorism
is a job fair for ambitious conservatives, just keep a close
eye on the Bush administration's nominees over the coming year.
Already, Assistant Attorney General Michael Chertoff, who currently
directs the Justice Department's work on terrorism, is about
to be named to the U.S. Court of Appeals for the Third Circuit.
Chertoff may end up being the first among
many. Catholic University law dean Douglas W. Kmiec, who submitted
a friend of the court brief in support of the government's position
in Hamdi--and who subsequently published an opinion piece in
the ultra-conservative National Review applauding the Hamdi ruling--is
being considered by the White House for a position on the U.S.
Court of Appeals for the District of Columbia. And White House
Counsel Alberto Gonzales, the brains behind the administration's
views on enemy combatants and military commissions, has emerged
as another favorite for a Supreme Court nomination.
Prospects for Robert Doumar, the district
court judge whose Hamdi rulings the Fourth Circuit so dismissively
reversed, are less bright. Although the appellate courts urgently
need judges of his moral courage and constitutional understanding,
he has probably guaranteed himself an indefinite stay at the
trial court level. At least defendants can be assured that he'll
do his best to be fair.
Joanne Mariner
is a human rights llawyer in New York. This article was originally
published by Writ
FindLaw. She can be reached at: mariner@counterpunch.org.
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