Court to hear ‘enemy’ appeal

The Supreme Court yesterday agreed to hear an appeal by a U.S. citizen held as an enemy combatant since his capture during fighting with the Taliban in Afghanistan. He claims that he has not been charged with a crime, is being denied access to attorneys and is being held incommunicado.

A federal appeals court ruled that Yaser Esam Hamdi, 22, could be detained as an enemy combatant during wartime without the constitutional protections afforded Americans in criminal prosecutions.

The Bush administration had asked the court to stay out of the case or to delay consideration of it pending an appeal in the similar case involving a separate U.S.-born terrorism suspect, Jose Padilla, a Chicago-born former gang member held in a suspected scheme to detonate a “dirty bomb” in the United States.

Like Hamdi, Padilla had been declared an enemy combatant. In December, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York ordered the government to either release Padilla or charge him in a civilian court, saying his detention was not authorized by Congress and Mr. Bush lacked the authority to designate him an enemy combatant.

In the Hamdi case, the three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, in overturning a lower court order, said his citizenship status did not change when he was captured in Afghanistan while fighting alongside Taliban guerrillas and al Qaeda terrorists.

“Hamdi is not ’any American citizen alleged to be an enemy combatant’ by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces,” said Chief Judge J. Harvey Wilkinson III and Judges William W. Wilkins and William B. Traxler in a unanimous 54-page ruling.

“The events of September 11 have left their indelible mark. It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day,” they wrote. “Yet we speak in the end not from sorrow or anger, but from the conviction that separation of powers takes on special significance when the nation itself comes under attack.”

The Supreme Court is expected to hear arguments in the Hamdi case in April, with a ruling expected by July.

Hamdi, through his attorneys, challenged the lawfulness of his confinement, questioning in a petition whether a declaration by a special adviser to the undersecretary of defense for policy outlining the circumstances of his capture in Afghanistan was sufficient to justify his detention.

But the appeals court said it was undisputed that Hamdi was captured in a “zone of active combat in a foreign theater of conflict” and that the declaration was a sufficient basis on which to conclude that Mr. Bush had detained Hamdi under his constitutional war powers.

“No further factual inquiry is necessary or proper,” the court wrote.

In the wake of the September 11 attacks, the court said Congress had authorized the president “to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks” or “harbored such organizations or persons.”

The court said Mr. Bush responded by ordering U.S. military troops to Afghanistan to subdue al Qaeda and the governing Taliban regime, and that during military operations, thousands of suspected enemy combatants, including Hamdi, were captured.

In his petition, Hamdi said that as an American citizen, he “enjoys the full protections of the Constitution,” and that the government’s detention of him without charges, access to a judicial tribunal or the right to counsel violates his constitutional rights.