August 14, 2002

Did Anything Noteworthy Happen at Runnymede?

Dan Kohn pleads for judicial review. If this goes awry, it will be the result of a very long chain of historical events originating with Supreme Court Chief Justice Roger B. Taney's attempts to use his office to fight for the South in the Civil War...

Dan Kohn's Blog: If you don't know the name Yaser Esam Hamdi, you soon will. He was in court today to determine whether the right of Habeas Corpus, first granted to a few English nobles in the fields of Runnymede in 1215 and guaranteed by the constitution to all US citizens, will now be taken away by the Bush Administration's cavalier definition of an :"enemy combatant". The NYT reports on the federal judiciary playing their role as one of the main bulwarks of liberty: "'I have no desire to have an enemy combatant get out,' the judge said. 'But due process requires something other than a declaration by someone named Mobbs that he should be held incommunicado. Isn't that what we're fighting for?'"

The New York Times Sponsored by Starbucks

August 14, 2002

Judge Questions Detention of American in War Case


NORFOLK, Va., Aug. 13 — The government's decision to hold war captives indefinitely without charges, without bail and without access to lawyers was on trial here today in a squat concrete courthouse.

The case is that of Yaser Esam Hamdi, 21, born in Baton Rouge, La.; raised in Saudi Arabia; and seized on the Afghan battlefield before being sent to Guantánamo Bay, Cuba. He was transferred to the Navy brig here on April 5, after officials had confirmed that he is an American.

The government has argued, and it argued again here today, that in this unconventional war on terrorism Mr. Hamdi is an enemy combatant. As such, the government says, even though he is a citizen, he has no right to a lawyer. In fact, enemy combatants, as the government defines them, have none of the rights afforded ordinary criminal defendants or even foreigners who might face military tribunals.

The judge, Robert G. Doumar of Federal District Court, had little patience with the government's position. In a display of judicial authority over the lawyers in his courtroom, he verbally cuffed the government lawyers, rarely giving them a break.

Judge Doumar bombarded an assistant to the solicitor general, Gregory G. Garre, with questions and, quickly finding that Mr. Garre would not be forthcoming, barely waited for a reply.

"So, the Constitution doesn't apply to Mr. Hamdi?" the judge snapped.

Mr. Garre studiously avoided answering yes or no, which frustrated the judge and prompted him to pound the lawyer with more questions. So exasperated with Mr. Garre's lack of responses, the judge blurted out, "Why am I here?"

To that question, Mr. Garre tried an answer. He said that the courts "have a role" in determining what to do with captives, but that it was limited, a role that belongs more fully to the president.

The case appears to be the first in modern American jurisprudence in which an American citizen has been indefinitely detained without charges and without access to a lawyer.

As such, it is rapidly becoming the test case for whether the courts and, eventually, the Supreme Court will sanction such detentions. The answer could well determine whether the United States continues to detain additional people in that way and could guide how the country goes about conducting the war on terrorism.

Michael Greenberger, a counterterrorism expert in the Justice Department under President Bill Clinton who is director of the Center for Health and Homeland Security at the University of Maryland, said the government had been embarrassed by the open court cases of John Walker Lindh and Zacarias Moussaoui and was looking for a precedent-setting case under which it could hold captives without lawyers' interference.

In a report critical of the government's posture in Mr. Hamdi's case, the American Bar Association warned that it could lead to the indefinite detentions of other Americans, leaving detainees with "fewer rights and protections than those who have been charged with serious criminal offenses."

"This is the new way to fight terrorism," said Frank Dunham Jr., the public defender appointed to represent Mr. Hamdi, although he has never met or talked with him. "There is no other case where a person has been denied access to his counsel. This could set a precedent for anyone being held on executive say-so."

The Hamdi case has bounced around in the Fourth Judicial Circuit for several months. Although the appeals court has sided with the government, Judge Doumar retains some hold over the case and has been highly critical of the government, as he was today.

The technical reason for the two hours of oral arguments was to determine the value of a two-page statement from Michael H. Mobbs, identified as a special adviser to the under secretary of defense for policy. The statement, "the Mobbs declaration," was the basis for determining that Mr. Hamdi was an enemy combatant. Judge Doumar, who is to decide whether the statement provided a sufficient explanation, said he would announce his decision in a few days.

But from the bench he made very clear that he found the statement lacking in nearly every respect. It had little detail specifying what exactly Mr. Hamdi had done. It said that Mr. Hamdi was captured during hostilities but did not say what he was doing. It said Mr. Hamdi "was determined by the U.S. military screening team to meet the criteria for enemy combatants," but did not say what the criteria were, who was on the team and why it reached that conclusion.

The judge also complained that the statement never explained why Mr. Hamdi had been moved here.

"I'm challenging everything in the Mobbs declaration," he said. "If you think I don't understand the utilization of words, you are sadly mistaken."

Judge Doumar said Mr. Hamdi was in solitary confinement in a windowless room. Mr. Garre disputed that but said Mr. Hamdi was the sole captive in the brig. Mr. Garre also said Mr. Hamdi met regularly with the brig commander and a chaplain.

"He just can't meet with a lawyer," the judge shot back.

Mr. Garre said the president had determined that the prisoners were enemy combatants because they did not qualify for prisoner-of-war status under the Geneva Convention. The judge said that military regulations required that a competent tribunal screen prisoners to determine their status and that Mr. Hamdi had no such screening.

"I have no desire to have an enemy combatant get out," the judge said. "But due process requires something other than a declaration by someone named Mobbs that he should be held incommunicado. Isn't that what we're fighting for?"

Posted by DeLong at August 14, 2002 06:17 PM | TrackBack



Would you mind expanding on Taney's role in all this? I'm fairly familiar w/ the Civil War, but am not catching this reference.

Posted by: JRoth on August 15, 2002 09:07 AM

In addition to Dred Scott--saying that Congress had no power to exclude slavery from federal territories (and, implicitly, laying the groundwork for a future decision that would have declared that states had no power to exclude slave property either)--Chief Justice Roger B. Taney tried hard to hobble Lincoln at the start of the Civil War.

In ex parte Merryman, in 1861, Taney went to Baltimore and sat there as a federal circuit judge. Taney ruled that the U.S. military had to release John Merryman, a citizen of Maryland, who had been imprisoned by the U.S. army on suspicion of favoring the Confederacy, because Article 1, Section 9 of the Constitution gave to Congress alone the power to suspend the writ in case of rebellion or invasion. Taney was right on the law, but wrong on the politics: Lincoln and his generals ignored the ruling, but had enough of a bad conscience that they later got Congress to ratify Lincoln's suspension of habeas corpus.

Taney's challenge to Lincoln--and its failure--created a precedent that the executive branch can suspend habeas corpus, and that the executive does not have to obey judicial rulings negating its suspension...

Posted by: Brad DeLong on August 15, 2002 09:48 AM

Art 1, Sec. 9 of the Constitution says:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it."

The Constitution does not explicitly state whether it is the president or the congress that has the power to suspend the writ, but the placement of this provision in Art. 1 suggests that it is congress. Morevoer, in our present circumstances, neither the president nor congress has acted to suspend the writ.

Even if the writ is suspended, the courts retain the power to determine whether the writ has, in fact, been suspended, and whether the prisoner falls within the terms of the suspension.

Note also that the writ can only be suspended whent the public safety requires it due to rebellion or invasion. There's no rebellion or invasion currently in progress that I can see.

Posted by: rea on August 16, 2002 05:20 AM

Yep. The Article I placement strongly suggests it is Congress's business to suspend habeas corpus (and the 1863 ratification of Lincoln's actions by Congress suggests that Lincoln agreed).

Posted by: Brad DeLong on August 16, 2002 05:26 PM
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