|Wednesday, January 08,
WASHINGTON U.S. citizens
overseas who take up arms against their country can be held as
enemy combatants without the constitutional rights afforded
other Americans, a federal appeals court ruled
decision by a three-judge panel of the 4th U.S. Circuit Court
of Appeals in Richmond, Va., affirms the government's
authority to detain indefinitely American citizens captured in
foreign battles or those who participate in terrorist attacks
against U.S. interests.
But the ruling stopped short of approving
those same powers over Americans arrested on U.S. soil, which
legal experts said leaves a major question for courts to
settle in the future.
"They have substantially cooled what has
been a legal hot potato," said Michael Greenberger, a former
senior Justice Department official in the Clinton
administration who now directs the University of Maryland's
Center for Health and Homeland Security.
The appeals decision overturned a lower
court's ruling that 22-year-old Yaser Esam Hamdi, a Louisiana
native captured in Afghanistan in November 2001, must see the
government's evidence supporting its claims that he fought
with Al Qaeda and Taliban forces against the United
Courts, the judges ruled, must be "highly
deferential" to the government during wartime, even an
unconventional war such as that against global terrorism.
Hamdi, they added, is being held under "well-established laws
and customs of war."
"The fact that he is a citizen does not
affect the legality of his detention as an enemy combatant,"
the judges said.
Attorney General John Ashcroft applauded
the decision, calling it "an important victory for the
president's ability to protect the American people in times of
"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," Ashcroft said in a statement.
Frank Dunham Jr., a lawyer hired by Hamdi's
family who has represented him in the case but has not met
with him, did not immediately return calls seeking
Constitutional activist called the decision
an abdication of the judicial system's duties to protect the
rights of U.S. citizens. Some compared it to the decisions
upholding internment of Japanese-Americans during World War
II, when the government was given broad latitude and later was
forced to apologize for mistreating citizens.
"It's a we'll-look-the-other-way decision
which undermines the system of checks and balances put in
place in this country to ensure that power is not abused,"
said Elisa Massimino, who heads the Washington office of the
Lawyers Committee for Human Rights.
Other experts questioned the court's
rejection of arguments that Hamdi should be treated either as
a prisoner of war, subject to rights under the Geneva
Convention, or prosecuted for crimes using traditional
"This decision condones government's
creation of a constitutional no man's land," said Susan
Herman, law professor at Brooklyn Law School.
According to the government, Hamdi was
captured after his Taliban unit was overrun by Northern
Alliance forces. He was at the prison uprising in
Mazar-e-Sharif where fellow U.S. citizen John Walker Lindh was
captured and later was transported with hundreds of others to
a prison at the U.S. Navy base at Guantanamo Bay, Cuba.
Hamdi was transferred to the naval brig in
Norfolk, Va., after it was discovered he was born in Louisiana
to Saudi parents. Hamdi and his family returned to Saudi
Arabia while he was a toddler, but he never renounced his U.S.
The appeals court in Richmond, Va., agreed
that the case raises serious questions about the rights of
citizens but concluded that, in wartime, the government's
authority is supreme in deciding who may be held
Hamdi was "squarely within the zone of
active combat" when captured and was in possession of an AK-47
rifle, the judges said. They added that courts have only
limited authority to intervene in such national security
"Any effort to ascertain the facts
concerning the petitioner's conduct while amongst the nation's
enemies would entail an unacceptable risk of obstructing war
efforts authorized by Congress and undertaken by the executive
branch," the judges said.
The court did not address questions about
U.S. citizens arrested as enemy combatants in this country.
The government has classified as a combatant Jose Padilla of
Chicago, who was arrested at O'Hare Airport after returning
Authorities accused Padilla of plotting to
detonate a radioactive "dirty bomb." A federal judge in New
York has ruled that Padilla should have the right to argue he
is being improperly detained.
The three circuit judges who unanimously
decided the Hamdi case were James Harvie Wilkinson III and
William W. Wilkins, both appointed by President Reagan, and
William B. Traxler, who was appointed by President