The government has taken the position that with no meaningful judicial review, an American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so. —American Bar Association Task Force on Treatment of Enemy Combatants, Preliminary Report, August 8, 2002
The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny. —James Madison, Federalist Papers, 47
Yaser Esam Hamdi’s name has become familiar and troubling to constitutional lawyers, but it has little resonance yet to Americans at large. However, what happens to him in our system of justice will signal how far the courts—eventually the Supreme Court—will allow George W. Bush, John Ashcroft, and Donald Rumsfeld to create what Charles Lane, the Washington Post‘s Supreme Court reporter, accurately calls “a parallel legal system in which terrorism suspects—U.S. citizens and noncitizens alike—may be investigated, jailed, interrogated, held and punished without legal protections guaranteed by the ordinary system.”
If unchecked by the courts—and Congress—Bush’s parallel legal system will push the Constitution aside and realize James Madison’s prediction that when all power is commanded by only one of the three branches of government, those ensnared in that rogue system are powerless.
Yaser Esam Hamdi, born in Louisiana of Saudi parents, was captured by Northern Alliance forces in Afghanistan. He was transferred to Camp X-Ray in the Guantánamo Naval Base in Cuba. When his American captors realized Hamdi is an American citizen, he was taken, in April 2002, to a naval station brig in Norfolk, Virginia, where he has since been held without any charges or trial, without access to his public defender, and without being able to see his family or anyone else. This American citizen, incommunicado and stripped of his constitutional rights, has been put in this condition by direct order of the president of the United States.
On October 24, the New York-based Center for Constitutional Rights, Human Rights Watch, and 18 other human rights groups, plus a coalition of 139 law professors, submitted an amicus brief to the Fourth Circuit Court of Appeals charging that “the detention of American citizen Yaser Esam Hamdi is unconstitutional.”
Reading the brief, keep in mind that the Bush administration has plans to set up “enemy combatant” detention facilities for other American citizens (Wall Street Journal, August 8, 2002).
In stark language, the brief goes on to say that “the government’s position is that the president has complete discretion to suspend the application of the Bill of Rights and the writ of habeas corpus [which requires the government to prove the legality of a person’s imprisonment] to American citizens on American soil, without the authority of Congress or the courts.”
The Bush administration has stated this position in Hamdi v. Rumsfeld (Fourth Circuit, July 12, 2002). The government also maintains that this American citizen, Hamdi, can be held indefinitely.
Accordingly, the Center for Constitutional Rights’ amicus brief continues: “We urge this court to declare, now and for future generations, that American citizens have a right not to be detained indefinitely, without due process, and that substantive judicial review is indispensable to the Constitution’s guarantee of these rights.”
It is not mere rhetoric to point out that the future of the Constitution for generations to come is at stake.
Hamdi has had a court hearing, although he himself was not allowed to be present. The judge in the Federal District Court in Norfolk, Virginia, is Robert Doumar, a Reagan appointee, who is passionate about assuring due process—fairness under the Constitution—to all who appear before him. In that admirable sense, he is a “strict constructionist.”
In open court, this 72-year-old jurist, who insists on ensuring the separation of powers in the governance of this nation, said:
“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 . . . and without access to a lawyer.” A George Bush contribution to American history!
Hamdi, in his windowless room in the floating navy brig, has yet to meet his lawyer, Frank Dunham Jr.
Judge Doumar demanded the government’s explanation of its basis in law for imprisoning Hamdi in that brig. Gregory G. Garre, an assistant to Solicitor General Theodor Olson—who is a major player in the Bush administration’s rewriting of the Constitution—handed the judge an official sworn document, only two pages long, by Michael Mobbs, a special adviser to the undersecretary of defense for policy.
In “Meet Mr. Mobbs” (usnews.com, October 21), Angie Cannon describes Mobbs as “wired into a network of politically influential conservatives going back to his days as an arms control negotiator in the Reagan administration.” She adds that while a student at Yale, Mobbs “played in the jazz orchestra.” Nonetheless, the spirit of freedom embodied in the canon of Louis Armstrong and other jazz masters has eluded Mr. Mobbs.
Next week: Judge Doumar’s thunderous rejection of the dangerously vague Mobbs declaration on why the government is fully justified in holding an American citizen in isolation from his supposedly guaranteed protections in the Constitution. By the way, December 15 was national Bill of Rights Day, commemorating the date on which the first 10 amendments to the Constitution were ratified.
Unless I missed them, I didn’t see celebratory acknowledgments of that anniversary in our far-flung, 24-hour media. Anyway, I doubt if the Bill of Rights was much on George Bush’s or Yaser Hamdi’s mind that day.