Courts have no higher duty than protection of the individual freedoms guaranteed by our Constitution. This is especially true in time of war, when our carefully crafted system of checks and balances must accommodate the vital needs of national security while guarding the liberties the Constitution promises all citizens. —Fourth Circuit Court of Appeals judge Diana Gribbon Motz, dissenting, Hamdi v. Rumsfeld, July 9
Some of the most glorious illuminations of the Bill of Rights in American history have been contained in Supreme Court dissents by, among others, Louis Brandeis, William Brennan, Hugo Black, and Thurgood Marshall. Equal to those was the stinging dissent by judge Diana Gribbon Motz when the Fourth Circuit Court of Appeals (8 to 4) gave George W. Bush a fearsome power that can be found nowhere in the Constitution—the sole authority to imprison an American citizen indefinitely without charges or access to a lawyer.
This case is now on appeal to the Supreme Court, which will determine whether this president—or his successors until the end of the war on terrorism—can subvert the Bill of Rights to the peril of all of us.
Judge Motz began her dissent—which got only a couple of lines in the brief coverage of the case in scattered media reporting—by stating plainly what the Bush administration has done to scuttle the Bill of Rights:
“For more than a year, a United States citizen, Yaser Esam Hamdi, has been labeled an enemy combatant and held in solitary confinement in a Norfolk, Virginia, naval brig. He has not been charged with a crime, let alone convicted of one. The Executive [the president] will not state when, if ever, he will be released. Nor has the Executive allowed Hamdi to appear in court, consult with counsel, or communicate in any way with the outside world.”
I have not seen what I am about to quote from her dissent anywhere in the media. You might want to send what follows to your member of Congress and senator. Judge Motz said accusingly:
“I fear that [this court] may also have opened the door to the indefinite detention, without access to a lawyer or the courts, of any American citizen, even one captured on American soil, who the Executive designates an ‘enemy combatant,’ as long as the Executive asserts that the area in which the citizen was detained was an ‘active combat zone,’ and the detainee, deprived of access to the courts and counsel, cannot dispute this fact.” (Emphasis added).
As I have detailed in two previous columns (“A Citizen Shorn of All Rights,” Voice, January 1-7, 2003, and “Liberty’s Court of Last Resort,” Voice, January 29-February 4, 2003), Hamdi was taken into custody by the Northern Alliance in Afghanistan, and then declared an “enemy combatant” by order of George W. Bush on the flimsiest of “evidence” that he had been a soldier of the Taliban—an accusation that Hamdi has not been able to rebut in a court of alleged law.
Judge Motz is not engaging in scare tactics when she says that with the president having assumed the powers of an absolute monarch, in this kind of case, any American citizen can be hauled off an American street and stripped of all his or her rights. On June 5, Attorney General John Ashcroft unequivocally told the House Judiciary Committee that the streets of America are now “a war zone.”
Furthermore, The Washington Post—in a July 13, 2002, lead editorial, a year before the Motz Fourth Circuit dissent—warned of the increasing tendency of the courts to defer to the dangerously overreaching executive branch:
“FBI Director Robert Mueller has said that a sizable number of people in this country are associated with terrorist groups, yet have so far done nothing wrong [so] there is therefore no basis to indict them. How many of them, one wonders, might the government [by bypassing the courts] hold as enemy combatants? And how many of them would later turn out to be something else entirely?”
But how much later would these innocent citizens—locked away until the war on terrorism is over—be let out?
This is an unprecedentedly serious assault, folks, on the core of our system of justice. As Judge Motz said in her passionate dissent, “[This court’s] decision marks the first time in our history that a federal court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the Executive’s designation of that citizen as an enemy combatant, without testing the accuracy of the designation. Neither the Constitution nor controlling precedent sanctions this holding.” (Emphasis added).
As for the government’s “evidence” that Hamdi is an enemy combatant, Judge Motz emphasizes that all the Defense Department offered is a two-page, nine-paragraph statement by Michael Mobbs, a special adviser for policy in the Defense Department. The buck stops with Donald Rumsfeld.
As Judge Motz points out, the majority of the Fourth Circuit, in its “breathtaking holding” relying on the Mobbs declaration, ruled that it is “undisputed” that Hamdi was captured in a zone of active combat. This, she charges, is “pure hearsay . . . a thin reed on which to rest abrogation of constitutional rights, and one that collapses entirely upon examination. For Hamdi has never been given the opportunity to dispute any facts.”
Before this case reached the Fourth Circuit, it was heard in Federal District Court—with Hamdi unable to be present or to communicate at all with his public defender, Frank Dunham, who therefore could not contest the Mobbs declaration. Nevertheless, Judge Robert Doumar, a Reagan appointee, scathingly demolished the government’s “evidence.”
“A close inspection of the [Mobbs] declaration reveals that [it] never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban. . . . Is there anything in the Mobbs declaration that says Hamdi ever fired a weapon?” (Emphasis added.)
In the January 9 New York Times, Elisa Massimino of the Lawyers Committee for Human Rights exposed an earlier decision by a panel of the Fourth Circuit to bow to Bush and to continue the stripping of Hamdi’s citizen’s rights. “[The Fourth Circuit] seems to be saying that it has no role whatsoever in overseeing the administration’s conduct of the war on terrorism . . . the beginning and end of which is left solely to the president’s discretion.”
Now, the full Fourth Circuit bench has handed George W. Bush the crown that George Washington disdained. What if the Supreme Court agrees? The spirit of King George III will endure.