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Yaser Hamdi sits, uncharged, in a military brig in Norfolk, Va., and, because he is an American citizen and a government-designated enemy combatant, his case is raising fundamental legal questions about the nation’s war on terrorism. More attention has focused on John Walker Lindh, another citizen who recently pleaded guilty to terrorist acts, and Zacarias Moussaoui, a noncitizen whose terrorism case is unfolding now in a federal courtroom. But it is the Hamdi case that legal scholars, civil liberties lawyers and government and defense counsel are watching closely. Through the basic vehicle of a federal habeas petition, Hamdi’s case has drawn the federal courts into relatively uncharted and difficult legal territory and triggered such key questions as: � Whether American citizens detained indefinitely as enemy combatants have a Sixth Amendment right to counsel. � What role, if any, do federal courts have in reviewing the government’s determination that someone is an enemy combatant who can be held for the duration of the hostilities? � What is the nature and possible duration of this war? � What rights, if any, do noncitizen detainees have? The Hamdi case raises questions not only under domestic law but also under international law, particularly the government’s designation of people as unlawful enemy combatants, says international law scholar Robert Goldman of American University Washington College of Law. “I would think so long as the determination of who is an enemy combatant is made in good faith, a court in this or any country is going to be loath to second-guess the executive,” he says. “However, where rights of U.S. citizens are concerned, there is heightened scrutiny here. And precedent has shown in our courts that these are matters that ultimately are for interpretation by a court.” LOOKING TO COURTS Hamdi, who was born in Louisiana to Saudi parents and moved to Saudi Arabia as a child, is one of a trio of U.S. citizens captured or detained by the government because of their alleged terrorism-related acts. Like Lindh, who was criminally charged by the government, Hamdi was captured by the U.S. military in Afghanistan after his Taliban unit surrendered. Unlike Lindh, Hamdi has not been charged but is being detained as an enemy combatant with potential intelligence value. He has been held since April without access to counsel. And there is Jose Padilla, also known as Abdullah al-Muhajir, who was detained in Chicago in May for allegedly plotting to build and detonate a radiological “dirty bomb.” He is now being held, without charges, as an enemy combatant at a military base in South Carolina. Some legal scholars say they are hard-pressed to understand the government’s different treatment of the three men — charging one and thus giving him the full protections of the American criminal justice system, but not charging the others and thus denying them even the right to counsel. If there is a rationale, says Dean Douglas Kmiec of Catholic University School of Law, it lies in the government’s designation of Hamdi and Padilla as “enemy combatants” and its view of what that designation guarantees: a virtually unchecked right to hold someone indefinitely and to interrogate, free of legal constraint. “I think the constitutional question is going to be: Is there any role for the judiciary to examine the executive determination that a person has fought against us, outside of the law of war, and therefore should be treated no better than the common law treated illegal enemy belligerents,” he says, “as well as the government’s position that any constitutional protections that would exist for a citizen simply don’t apply.” Those questions ultimately may reach the U.S. Supreme Court, he and others say. But right now, they form the backdrop to Hamdi’s habeas petition. On May 29, a federal trial judge, acting on “next friend” petitions filed by three different parties, ordered that “Hamdi must be allowed to meet with his attorney because of fundamental justice provided under the Constitution” and appointed counsel. But on July 12, a three-judge panel led by Chief Judge Harvie Wilkinson reversed the trial court’s order mandating access to counsel, and remanded the case for reconsideration. “In the face of ongoing hostilities, the district court issued an order that failed to address the many serious questions raised by Hamdi’s case,” wrote Wilkinson. The remand directed the trial judge to consider those questions and to do so with “considerable deference” to the political branches. While the terms are not expressly found in the Third Geneva Convention, lawful or privileged enemy combatant is generally acknowledged to be someone who would qualify for prisoner-of-war status under the convention, says Goldman. “They are regular members of the armed forces, recognized as having a license or privilege to directly participate in hostilities, such as killing the enemy,” he explains. The prisoner of war, he notes, has no right to counsel until criminal charges are brought and can be detained for the duration of hostilities. When interrogated, the prisoner only has to give his name, rank and serial number. UNLAWFUL COMBATANTS The unlawful or unprivileged enemy combatant — Hamdi and Padilla — may be a civilian who engages in hostilities, says Goldman. The most common type are guerrilla or partisan groups who are not regular members of the armed forces — groups like al-Qaida. “If you are an unprivileged combatant, you can be tried for each and every one of your hostile acts under the criminal law of your captors even if they would have been immune had you been a lawful combatant,” says Goldman. The catch for Hamdi, he adds, is if a regular prisoner of war has no right to a lawyer during the period of detention until the point criminal charges are brought, “then I agree with the administration that a literal reading would say an unprivileged combatant should have no greater right to counsel than would a prisoner of war.” But what about an unprivileged “citizen” combatant? he asks. The government contends that enemy combatants captured and detained on the battlefield have no general right under the laws and customs of war, or the Constitution, to meet with counsel concerning their detention. ‘FRUITFUL INTERROGATION’ The government also argues that providing counsel may destroy “fruitful interrogation” and that counsel may be duped into passing concealed messages from the detainee to the enemy. Robert Levy of the libertarian Cato Institute disagrees. The Constitution, he says, makes no distinction between citizens and citizen-combatants. “When the government is going to violate these kind of civil liberties, it needs to show a compelling interest — and the war on terror qualifies — and show what it’s going to do is going to work and there’s no better way to do it without violating civil liberties,” says Levy. “I don’t think the government has proven those things, and it gives me pause.” There is no Supreme Court precedent that goes to the fundamental issue of denying a U.S. citizen his right to counsel in a situation like this one, says Michael Greenberger, head of the University of Maryland’s Center for Health and Homeland Security. “The government has unilaterally made a determination that this person is an enemy combatant,” he says. “But take the case of Wen Ho Lee. For months it was assumed he turned over the most crucial nuclear secrets to the Chinese. The guy gets a lawyer, goes to court and they find the FBI was wrong. “What if they had refused Lindh a lawyer? He could have been named an enemy combatant. Lindh had the benefit of one of the top lawyers in the U.S. The guy gets a lawyer and next thing you know, he’s got 20 years in prison. Lindh and Wen Ho Lee show how important counsel can be.” The whole concept of enemy combatant, he adds, came out of the Supreme Court ruling Ex parte Quirin, a case involving Nazi saboteurs. All Quirin says, he explains, is that enemy combatants can be tried by military tribunals. “It did not say you are not entitled to a threshold meeting with counsel,” he adds. And if Hamdi does get a lawyer, Greenberger and others say, that lawyer’s first step will likely be to challenge the government’s designation of Hamdi as an enemy combatant. NARROW ROLE In the 4th U.S. Circuit Court of Appeals, the government argued that courts have an “extremely narrow” role in reviewing that military judgment. “A court’s inquiry should come to an end once the military has shown in the [habeas] return that it has determined that the detainee is an enemy combatant,” the government said. No evidentiary hearing is required, it argued. The 4th Circuit rejected the government’s “sweeping proposition — namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so.” “The question the administration has not yet explained is what war are they talking about?” says Goldman. “The war in Afghanistan, which is still ongoing? The war against al-Qaida, or the war against terrorism, which will go on for how long, no one knows. “I’m not unsympathetic to many of the administration’s arguments but I do have a problem with lack of definition, with respect to duration of the hostilities.” THE X-RAY FACTOR If the federal courts ultimately reach those questions, he and others say, the answers could have implications for the detainees in Camp X-Ray. “The U.S. has obligations under customary laws of human rights, and the idea a person can be held indefinitely in administrative detention without any kind of independent supervision is very problematic,” says Goldman. “What is very clear is that human rights law makes no distinction between citizens and noncitizens with respect to due process. The detainees, too, raise some very novel questions.”

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