Editor Matthew Rothschild - An Outrageous Ruling

On January 8, the U.S. Court of Appeals for the Fourth District placed the imprimatur of legality upon one of the most egregious moves by Bush, Ashcroft, and Rumsfeld: the holding of American citizens as "enemy combatants" in military brigs without charging them with a crime and without giving them access to a lawyer or other standard due process protections...

A lower court judge, Robert Doumar, did not cotton to the Administration's treatment. "This case appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without charges, without any findings by a military tribunal, and without access to a lawyer," he wrote.

When the government tried to assert a right to keep Hamdi in the brig, the judge asked one of Ashcroft's lawyers: "So, the Constitution doesn't apply to Mr. Hamdi?"

Incredibly, the Fourth Circuit basically said it doesn't. The President has "extraordinary broad authority as Commander in Chief," the court said, and this "compels courts to assume a deferential posture in reviewing exercises of this authority."

But the Fifth Amendment states that "no person" shall be "deprived of life, liberty, or property without due process of law." Throw that one out the window.

Here is the full text of the article in case the link goes bad:

http://www.progressive.org/webex/wx010903.html

Editor Matthew Rothschild comments on the news of the day.
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January 9, 2003
An Outrageous Ruling

On January 8, the U.S. Court of Appeals for the Fourth District placed the imprimatur of legality upon one of the most egregious moves by Bush, Ashcroft, and Rumsfeld: the holding of American citizens as "enemy combatants" in military brigs without charging them with a crime and without giving them access to a lawyer or other standard due process protections.

The case involves Yasser Hamdi, who was captured on the battlefield in Afghanistan. The Bush Administration labeled him an enemy combatant, and sent him to a military brig in Norfolk, Virginia.

A lower court judge, Robert Doumar, did not cotton to the Administration's treatment. "This case appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without charges, without any findings by a military tribunal, and without access to a lawyer," he wrote.

When the government tried to assert a right to keep Hamdi in the brig, the judge asked one of Ashcroft's lawyers: "So, the Constitution doesn't apply to Mr. Hamdi?"

Incredibly, the Fourth Circuit basically said it doesn't. The President has "extraordinary broad authority as Commander in Chief," the court said, and this "compels courts to assume a deferential posture in reviewing exercises of this authority."

But the Fifth Amendment states that "no person" shall be "deprived of life, liberty, or property without due process of law." Throw that one out the window.

The Bush Administration had plenty of legal tools to deal with Hamdi. It could have charged him with treason, for instance. But instead it chose not to charge him with anything and just toss him into the clink and leave him languish there. That's medieval.

The Administration's approach to those it has captured or arrested in the war on terror is highly inconsistent.

Look at John Walker Lindh. He is an American citizen who was caught on the battlefield in Afghanistan. Yet he was entitled to his day in court. Why wasn't Hamdi?

Or take Zacarias Moussaoui, the so-called twentieth hijacker. He isn't even a U.S. citizen, and he's been duly charged and is being prosecuted through our civilian courts. Why not Hamdi?

Then there's Jose Padilla, the so-called dirty bomber, who is also a U.S. citizen. He, like Hamdi, gets the collar "enemy combatant." But what makes him different from Lindh and Moussaoui?

Does the Bush Administration get to decide all by itself who has access to due process, and who doesn't?

For Padilla, the Fourth Circuit's decision may hold a flicker of hope. Ruling on Hamdi, it said: "At least where it is undisputed that he was present in a zone of active combat operations," the government does not need to face stiff scrutiny from the courts.

Since Padilla was apprehended in Chicago, he may have a case.

But not if the courts continue to assume the "deferential posture" and uphold the President's "extraordinary broad authority."

-- Matthew Rothschild