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Court: U.S. Can Hold Citizens as Enemy Combatants
Appeals Court Rules in Favor of Goverment in Holding Hamdi

By Tom Jackman
Washington Post Staff Writer
Wednesday, January 8, 2003; 3:38 PM

A federal appeals court today ruled that the government has properly detained an American-born man captured with Taliban forces in Afghanistan without an attorney and has legally declared him an enemy combatant.

The 54-page ruling by the 4th U.S. Circuit Court of Appeals in the case of Yaser Esam Hamdi, who is being held incognito at the Navy brig in Norfolk, has broad implications for the Bush administration's war on terror.

The court ruled that as an American citizen, Hamdi had the right to a judicial review of his detention and his status as an enemy combatant. But because the Constitution affords the executive branch the responsibility to wage war, the courts must show great deference to the military in making such determinations.

"The constitutional allocation of war powers affords the President extraordinarilybroad authority as Commander in Chief and compels courts to assume a deferential posture in reviewing exercises of this authority," said the opinion, written by Chief Judge J. Harvie Wilkinson III and judges William W. Wilkins and William B. Traxler Jr.

"The Constitution does not specifically contemplate any role for courts in the conduct of war, or in foreign policy generally. Indeed . . . courts are ill-positioned to police the military's distinction between those in the arena of combat who should be detained and those who should not."

Hamdi was captured in Afghanistan in November 2001. He was transferred to the Navy brig in Norfolk after telling U.S. investigators that he was born in Louisiana. But while he was in Norfolk, the military declined to allow Hamdi to speak with anyone because he was deemed an enemy combatant.

Hamdi's father, Esam Fouad Hamdi, and Federal Public Defender Frank W. Dunham Jr. filed petitions with the federal court in Norfolk seeking permission for Dunham to meet with Hamdi. In both cases, U.S. District Judge Robert G. Doumar granted the requests.

The 4th Circuit stayed Doumar's order in each case.

"I applaud today's decision which reaffirms the president's authority to capture and detain individuals, such as Hamdi, who join our enemies on the battlefield to fight against America and its allies," said Attorney General John D. Ashcroft. "Today's ruling is an important victory for the president's ability to protect the American people in times of war. Preserving the president's authority is crucial to protect our nation from the unprincipled, unconventional, and savage enemy we face. Detention of enemy combatants prevents them from rejoining the enemy and continuing to fight against America and its allies, and has long been upheld by our nation's courts, regardless of the citizenship of the enemy combatant."

The appeals court today was specifically ruling on the sufficiency of a two-page declaration by a Defense Department official who said Hamdi was captured with a rifle with Taliban soldiers. Doumar ruled that the statement by a special adviser to the undersecretary of defense for policy was insufficient to detain an American citizen without a lawyer.

But the appeals court ruled that it is enough to say that Hamdi was "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 enemyforces."

The court noted the implications of its decision in a rare acknowledgment to the underlying facts of the case. "The events of September 11 have left their indelible mark," the judges wrote. "It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day. 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...Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one."

© 2003 The Washington Post Company