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    A Times Editorial

    A chilling specter

    © St. Petersburg Times
    published January 12, 2003

    During war, the balance of power between the executive and the other branches of government is likely to shift. The president is certainly entitled to greater deference in making some types of national security assessments. But a federal appellate court on Wednesday went too far in granting executive-branch officials virtually unreviewable authority to hold, indefinitely and without access to counsel, an American captured in Afghanistan. The decision ignored the Constitution and relegated the courts to the role of rubber stamp.

    In its 54-page opinion, the 4th U.S. Circuit Court of Appeals, widely viewed as the most conservative appellate bench in the country, gave a sweeping victory to those in the executive branch, such as Defense Secretary Donald Rumsfeld, Attorney General John Ashcroft and the president himself, who have been busily arrogating power. The unanimous court repeatedly declared that the president's warmaking powers in the Constitution allow the chief executive to make unilateral decisions without judicial interference -- even if those decisions conflict with the Bill of Rights. The decision demands a review by the U.S. Supreme Court.

    The case involves Yaser Esam Hamdi, who surrendered to the Northern Alliance in Afghanistan in late 2001. He was transferred to Camp X-Ray in Guantanamo Bay, Cuba. But when the government learned Hamdi, though raised in Saudi Arabia, was born in Louisiana and is probably an American citizen, he was sent to a naval brig in Norfolk, Va. Hamdi has been there since April. He has not been charged with a crime or allowed to communicate with his family or a lawyer, and the government claims it can hold him there indefinitely.

    The government says Hamdi is an enemy combatant and as such has no right to challenge the legality of his confinement. In a two-page declaration, the government said Hamdi voluntarily joined the Taliban military and was carrying a rifle when he surrendered.

    This is a central point. According to prior court rulings, the government may detain Hamdi without charge if he is deemed an enemy fighter. But what if Hamdi was in Afghanistan for a purpose other than taking up arms for the Taliban? In a letter to Congress, Hamdi's father said his son had gone to Afghanistan to do charity work, not fight. Isn't it the job of the courts to determine if the military's claims are accurate?

    The 4th Circuit said, essentially, "no," that the courts are obliged during war to take the military's word for what occurs in an overseas theater of war. It refused to give the detainee any chance to rebut the military's version of the facts. Such due process may be impractical in the context of a foreign battlefield, but there is no practical impediment to it now that Hamdi is safely in U.S. custody.

    The opinion did make one important distinction, emphasizing that the ruling's reach is limited to Americans who are combatants on foreign soil. The court explained that the same deference wouldn't be given the government for detentions made off the battlefield. It appeared to be telegraphing that cases such as that of Jose Padilla, the so-called dirty bomber, who was picked up at Chicago's O'Hare International Airport and has been held as an enemy combatant without charge, would be treated differently.

    In spite of the court's exception, we are left with a chilling specter. The Departments of Justice and Defense claim that the battlefield for this war on terrorism is the entire world, and that the war will continue until the last person with evil intent toward the United States is captured. Now a federal appellate court has given the executive branch the power to imprison Americans on overseas battlefields for the duration of the war, without due process or judicial oversight. It is hard to imagine a ruling more antithetical to our constitutional traditions or the rule of law.

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