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A Times Editorial
The Bush administration's defiance of the Constitution in dealing with Americans labeled enemy combatants may have finally met resistance in the courts.
© St. Petersburg Times, published August 13, 2002
The Justice Department appears headed toward a constitutional showdown with the courts over its antiterrorism campaign. The department has refused an order by a federal judge to turn over documents on Yaser Esam Hamdi, an American-born man picked up in Afghanistan and being held by the Defense Department as an "enemy combatant." This defiance suggests an administration that has little regard for fundamental constitutional principles.
In this case, Hamdi, who was born in Louisiana and raised in Saudi Arabia, is being held in a Navy brig in Norfolk without charges or access to an attorney. The administration says he was fighting for the Taliban and can be held as an enemy combatant out of reach of the civil courts. Essentially, the department is arguing that any American can be labeled an enemy combatant and thereby stripped of his constitutional rights. This authority, argues the administration, is derived from the president's power as commander in chief, and no court may review any of his judgments relative to fighting the "war."
To his credit, U.S. District Court Judge Robert Doumar, a Reagan appointee, has indicated a deep skepticism toward the administration's position. In past rulings, the judge ordered the government to allow Hamdi to meet with his attorney, affirming the core principle of American justice that no citizen can be locked away without due process. But that ruling was set aside by the 4th U.S. Circuit Court of Appeals, which instructed Doumar to give the government's wartime decisions great deference and to determine whether Hamdi had been properly designated an enemy combatant. This is where the government has refused to cooperate.
To evaluate the legitimacy of Hamdi's classification, Doumar asked for copies of Hamdi's statements, interview notes and other documents. But the Justice Department has refused to comply, asserting that a two-page description of why it was holding Hamdi, written by a Defense Department adviser on enemy combatants, was all the court needed to affirm Hamdi's status.
No doubt, the administration is positioning itself for future enemy combatant cases in which it wants even less scrutiny by the courts. Jose Padilla, the suspected "dirty bomber," is the other American held under that classification. However, Padilla wasn't picked up by the military on Afghan soil; he was arrested by civil authorities as he disembarked from a flight into Chicago. Yet, even here, the administration maintains its decision to hold Padilla indefinitely and without counsel is solely within the president's warmaking powers.
The administration should not be allowed to dismantle fundamental constitutional protections as part of its war on terrorism. The courts are finally starting to demand some accountability by the executive branch on its use of secret detentions and closed hearings for the Sept. 11 detainees. But if the administration is allowed to unilaterally reject judicial oversight, we have have crossed a dangerous line in this nation. If the administration prevails on this issue, the executive branch will no longer feel constrained by the Constitution's separation of powers.