The Bush administration claims that, as part of a president's wartime powers, any person may be labeled an enemy combatant and held incommunicado and without charge for the duration of hostilities. So far, only two Americans have been so designated, but there probably will be more if the courts ultimately support the president's authority. Yaser Esam Hamdi, who was captured in Afghanistan, and Jose Padilla, who was arrested in Chicago and is accused of planning to unleash a "dirty" radiation bomb, are currently being held in military brigs as enemy combatants. But with no opportunity to speak to a lawyer, Hamdi and Padilla have been denied any meaningful avenue to challenge the administration's version of events.
That is, until now.
In a surprising backtrack, the Pentagon announced this week that Hamdi (but not Padilla) would be given access to a lawyer. The move is welcome, but it seems calculated to look like a bigger policy reversal than it is. The announcement came the day before the government's brief was due in response to Hamdi's U.S. Supreme Court appeal. The high court will soon decide whether to review a federal appellate ruling that upheld the administration's right to hold Hamdi indefinitely as an enemy combatant.
By allowing Hamdi to meet with a lawyer, the administration can make its position appear less extreme. The Defense Department announcement, however, made clear this was a discretionary move and should not be treated as precedent.
Legal experts and groups including the American Bar Association have condemned the lack of due process afforded Hamdi and Padilla. The judiciary has a vital role to play in reviewing the legitimacy of any person's confinement.
The president's claim that his decision to detain a U.S. citizen is unreviewable leaves the system open to possible abuse.
Even former high-ranking Justice Department officials are questioning the Bush administration's stance. Georgetown University Law Center professor Viet Dinh, a former assistant attorney general who was a primary author of the USA Patriot Act, has said that the lack of any process is "unsustainable."
And Michael Chertoff, who was in charge of the department's criminal division and is now a federal appellate court judge, has also suggested that a different approach should be adopted toward American enemy combatants.
The administration has made a reasonable step by yielding to public pressure and finally granting Hamdi a chance to meet with a lawyer. But until it starts treating U.S. citizens suspected of terrorist activities in a manner consistent with our national commitment to due process, the move is nothing more than show.
