Hamdi, Yaser v. Rumsfeld, Donald , Defense Secy. (06/28/2004)

Questions presented: Did the court of appeals erred in holding that the U.S. has established the legality of the military's detention of Yaser Esam Hamdi, a presumed American citizen who was captured in Afghanistan during the combat operations in late 2001, and was determined by the military to be an enemy combatant who should be detained in connection with the ongoing hostilities in Afghanistan?

BY AKUA L. SEARCY, MEDILL NEWS SERVICE

Frank Dunham , Jr., federal defender for the Eastern District of Virginia, opened the Virginian-Pilot newspaper one morning and read an article about an American citizen being held as an enemy combatant at Norfolk Naval Brig in Norfolk, VA.

"I assumed that we had the second American Taliban," Dunham said. "I wanted to get in to see him to advise him of his rights."

Concerned that Yaser Hamdi, then 21 years old, would face criminal charges as John Walker Lindh had, Dunham proceeded to file a writ of habeas corpus on May 10, 2002, on behalf of Hamdi as "next friend." The petition requested access to Hamdi and the enforcement of his due process rights.

U.S. District Judge Robert Doumar ordered the U.S. government to grant Dunham access to Hamdi, and the U.S. government appealed. In its first decision, known as Hamdi I, the 4th Circuit Court of Appeals dismissed the petition, stating Dunham could not file as "next friend" on behalf of Hamdi because, having had no communication with Hamdi and having never met him, Dunham had no relationship to him.

While the first appeal was pending, Dunham tracked down Hamdis father, Esam Fouad Hamdi, in Saudi Arabia, and filed another writ of habeas corpus with Hamdis father as "next friend."

Again, Judge Doumar ordered the U.S. government to grant Dunham access to Hamdi. The decision was appealed, and the U.S. government submitted a two-page, 9-paragraph document, known as the Mobbs declaration, that detailed the events leading up to the capture of Hamdi in Afghanistan in the fall of 2001, as well as his transfer to various U.S. military facilities before reaching Virginia in 2002. Written by Michael Mobbs, special advisor to the undersecretary of defense policy, the declaration was the U.S. governments justification for detaining Hamdi as an enemy combatant and holding him incommunicado indefinitely.

The 4th Circuit again reversed, ordering Judge Doumar to evaluate the governments claims in the Mobbs declaration before any other decisions were made.

The judge reviewed the Mobbs declaration, stating that it was insufficient to ascertain Hamdis status as an enemy combatant, and that "it leads to more questions than answers." In addition, Judge Doumar ordered the U.S. government to provide additional documentation on Hamdis capture to clarify assertions made by Mobbs.

For example, the Mobbs declaration claimed that Hamdi was "affiliated with a Taliban military unit and received weapons training." Judge Doumar found that "the declaration is silent on what level of Ôaffiliation is necessary to warrant enemy combatant status" and stated that "Mr. Mobbs never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban."

Judge Doumar concluded that the court should not act a "rubber-stamp" when the government makes assertions, and based on the "sparse facts" disclosed in the Mobbs declaration, could not accurately determine Hamdis status as an enemy combatant.

On Jan. 8, 2003, for the third time, the 4th Circuit 3-judge panel of Chief Judge Harvie Wilkinson, and judges William Wilkins and William Traxler, unanimously reversed, stating that the Mobbs declaration provided sufficient information not only to detain Hamdi as an enemy combatant, but also to limit judicial review of executive and legislative branch activities during times of war.

In determining how far the government can go to deprive American citizens of their rights, the court determined that "the detention of United States citizens must be subject to judicial review."

The court agreed that Hamdi, as an American citizen, can challenge his detention. Yet they declined to side on his behalf that his detention was unlawful, and disagreed that he had a right to counsel and the ability to further challenge his detention as an enemy combatant.

"The safeguards that all Americans have come to expect in criminal prosecutions do not translate neatly to the arena of armed conflict. In fact, if deference to the executive branch is not exercised with respect to military judgments in the field, it is difficult to see where deference would ever obtain," wrote Wilkinson.

In its opinion, the 4th Circuit argued for limited judicial activity during times of war, citing the separation of powers as stated in the Constitution and deferring to the war-making powers of Congress and the president.

Reasoning that "the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not," the court concluded that questioning the validity of a government document or decision during a war was inappropriate and inconsistent with the decision-making powers of the judicial branch.

In analyzing the district courts ruling, the 4th Circuit found fault with Judge Doumars order to obtain access to government documents supporting the Mobbs declaration.

"The risk created by this order is that judicial involvement would proceed, increment by increment, into an area where the political branches have been assigned by law a preeminent role," wrote Wilkinson.

Included in its analysis of separation of powers, the 4th Circuit criticized the district courts critique of the Mobbs declaration, stating: "To transfer the instinctive skepticism, so laudable in the defense of criminal charges, to the review of executive branch decisions premised on military determinations made in the field carries the inordinate risk of a constitutionally problematic intrusion into the most basic responsibilities of a coordinate branch."

The 4th Circuit opinion continued, reasoning that the "Constitution does not specifically contemplate any role for courts in the conduct of war, or in foreign policy generally." In short, the court concluded that the judiciary branch must defer to the president and Congress in matters of military conflicts and accepted the Mobbs declaration as fact.

On Jan. 9, 2004, the U.S. Supreme Court accepted review in the case, and allowed Hamdi to have his case heard without costs.

In his brief, Hamdi argued to the Court that the 4th Circuit opinion imposed "virtually no restriction on the Executive branchs power to indefinitely imprison citizens without charge and without access to counsel or the courts." Read narrowly, Hamdi argued that "any citizen," from embedded journalists to humanitarian aid workers, could be subject to "indefinite incommunicado detention based on the thinnest factual grounds."

Hamdi told the Court that the 4th Circuit opinion "works a radical change between the three branches of government," and conflicts with Supreme Court decisions "protecting the right of detainees to court access" as well as decisions authorizing judicial review of military activity during wartime.

Yaser Hamdi remained without access to counsel until Feb. 3, 2004, when the U.S. government granted Dunham a two-hour visit with his client at the Naval Weapons Station Charleston in Goose Creek, S.C. The meeting was arranged when military officials claimed they were done interrogating Hamdi, yet would hold him indefinitely as an enemy combatant.

Dunham was able to give Hamdi news clippings and briefs from the case, but was not allowed to discuss his treatment or interrogations by the military. No criminal charges have been filed against Hamdi.

Amicus briefs have been filed by former prisoners of war, experts on the law of war, and Fred Korematsu on behalf of Hamdi.