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Captured foe who is likely an American tests rule of law


© St. Petersburg Times, published June 9, 2002

Yaser Esam Hamdi sits in a brig at a Naval Air Station in Virginia. What we do with him may tell us whether we are truly a nation of laws.

Yaser Esam Hamdi sits in a brig at a Naval Air Station in Virginia. What we do with him may tell us whether we are truly a nation of laws.

Hamdi was captured in the Mazar-e-Sharif prison riots in November and transferred to Camp X-Ray at Guantanamo Bay. Though raised in Saudi Arabia, Hamdi was apparently born in Baton Rouge, La. and is likely an American. This revelation caused serious consternation in Bush administration circles, and Handi was spirited to U.S. soil for continued detention. His move was precipitated by the fear that, as an American, Hamdi could have standing to challenge the conditions at Guantanamo and legal status for all 384 prisoners held there -- something the Bush administration has been desperate to avoid.

Now Hamdi sits in a Navy brig in Virginia with the government claiming he can be held indefinitely without charge, access to a lawyer or any legal presentment against him. The Justice Department doesn't have evidence to charge him, and he cannot be tried before a military tribunal since Bush's order limits its jurisdiction to noncitizens. Nonetheless, the Defense Department says the prisoner will be held as a "captured enemy combatant" -- a term without a legal meaning -- until it decides what to do with him.

"I'm told by lawyers," Secretary of Defense Donald Rumsfeld said in a recent news conference, "that people who are captured on battlefields and who you have been fighting -- and that is certainly the case with (Hamdi) -- a country has every right to keep them off of the battlefield and detained (until the end of the war)."

That is right. Under the Geneva Conventions, of which both Afghanistan and the United States are signatories, a country may hold prisoners of war until the "cessation of active hostilities." But Hamdi is not being called a prisoner of war and neither are any of the combatants captured in Afghanistan. We refuse to recognize their POW status, claiming, wholesale, that none of them qualify. Such an assessment is itself in direct contravention of the Geneva Conventions, which explicitly require each prisoner's status to be evaluated separately by a tribunal.

Essentially, the modus operandi of the administration since the war in Afghanistan began has been to ignore limits on executive branch power and keep the federal courts out at every turn.

The reason Camp X-Ray is situated in Cuba -- on non-American soil -- is because in 1950 the U.S. Supreme Court said enemy aliens who are not on American soil can be denied access to our courts.

The Bush administration has every reason to fear the courts. Its extra-legal actions justified on the vaguest and broadest national security claims are being shot down as soon as they get before judges' eyes. There have been at least five legal challenges to the tactics employed by the Justice Department since the Sept. 11 attacks, and, in each case, the courts had to remind the government of the basic constitutional constraints on its powers.

In Hamdi's case, the government claimed it had the authority to hold a captured enemy combatant without giving him access to a lawyer because any such meeting could interfere with his interrogation. But U.S. District Court Judge Robert Doumar would have none of it. He said, in the name of "fair play and fundamental justice," any American imprisoned by the government was entitled to meet with his lawyer. In a telling exchange, government lawyers claimed Hamdi wasn't entitled to counsel since he hasn't been charged with anything, to which Doumar responded: "That sounds idiotic, doesn't it?"

In what Catch-22, Bizzaro, one-sane-man world is the government living in these days that it can claim with a straight face that a prisoner can be held indefinitely without a lawyer because the government has not bothered to follow the law by charging him?

Doumar ordered that Hamdi be given an interpreter and access to a federal public defender within 72 hours. But the Justice Department, rather than admit how wrong it was on a matter so vital to the rule of law, has already taken the issue up the judicial chain. A federal appeals court has granted the government a temporary stay of Doumar's order until further judicial review.

In a sadly inevitable turn, this war on terrorism has become a war on the Constitution. Congress doesn't seem to have the stomach to confront this fact -- our legislative leaders are too busy hiding behind their American flag lapel pins -- but the courts have been unblinking. Doumar's order is courageous in its propriety. All he had done is follow the fundamentals of our law -- a brave act in these times.

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