Police state : Americans may be held as ‘enemy combatants’


Richard Moore


Americans may be held as 'enemy combatants,' appeals court

Government welcomes ruling upholding presidential power

RICHMOND, Virginia (CNN) -- A federal appeals court
Wednesday ruled President Bush has the authority to
designate U.S. citizens as "enemy combatants" and detain
them in military custody if they are deemed a threat to
national security.

"Judicial review does not disappear during wartime but the
review of battlefield captures in overseas conflicts is a
highly deferential one," said the opinion of the 4th U.S.
Circuit Court of Appeals.

The ruling reverses a lower court decision ordering the
government to produce more information to defend its
holding of Yaser Hamdi, a U.S. citizen accused of fighting
with the Taliban in Afghanistan, and dismisses the
complaint of his attorneys.

The appeals court ruling was immediately hailed by the

"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 Ashcroft. "Today's ruling is an important
victory for the president's ability to protect the
American people in times of war."

Hamdi, who was born in Louisiana but grew up in Saudi
Arabia, is being held in a Navy brig in Norfolk, Virginia,
after being captured in Afghanistan.

He has not been allowed visits by the federal public
defender who represents him, and the government has given
no indication if or when it may file charges against him.

Through a series of court proceedings, Hamdi defense
counsel Frank Dunham has argued his client's
constitutional rights were being violated. Although a
lower court agreed, the three-member appeals panel
unanimously rejected the arguments.

"The events of September 11th have left their indelible
mark," the court said in explaining its decision to defer
to executive authority. "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
anger or sorrow but from the conviction that separation of
powers takes on special significance when the nation
itself comes under attack."

"Hamdi's status as a citizen, as important as that is,
cannot displace our constitutional order or the place of
the courts within the Framer's scheme," the opinion said.

The federal appeals court in Richmond is widely viewed as
among the most conservative in the nation, and has
generally supported the government's lawyers during a
series of disputes in the Hamdi case.

The ruling Wednesday was issued by Circuit Court Judges J.
Harvie Wilkinson III, and William Wilkins, both appointed
by President Ronald Reagan, and Judge William Traxler Jr.,
who was appointed by President Bill Clinton.

In this third appeal by the government in the Hamdi case,
the Circuit Court again overturned U.S. District Court
Judge Robert Doumar, a Reagan appointee.

In the latest appeal, the United States had asked the
Circuit Court to overturn Doumar's order requiring the
production of various materials regarding Hamdi's status
as an alleged enemy combatant. The lower court questioned
whether a declaration by a Defense Department official
setting forth what the government contends were the
circumstances of Hamdi's capture was sufficient by itself
to justify his continued detention.

The appeals panel said it was.

"Because it is undisputed that Hamdi was captured in a
zone of active combat in a foreign theater of conflict, we
hold that the submitted declaration is a sufficient basis
upon which to conclude that the commander-in-chief has
constitutionally detained Hamdi pursuant to the war powers
entrusted to him by the United States Constitution," the
Appeals Court said. "No further factual inquiry is
necessary or proper, and we remand the case with direction
to dismiss the petition."

Court does not address Padilla case

The court did not address the issue presented in a
separate case involving another enemy combatant, that of
accused "dirty bomb" suspect Jose Padilla. ( More on
Padilla case )

"We have no occasion, for example, to address the
designation as an enemy combatant of an American citizen
captured on American soil or the role that counsel might
play in such a proceeding. See, e.g., Padilla v. Bush ,"
the opinion read.

"We shall, in fact, go no further in this case than the
specific context before us -- that of the undisputed
detention of a citizen during a combat operation
undertaken in a foreign country and a determination by the
executive that the citizen was allied with enemy forces."

Ashcroft has alleged that Padilla, 31, who was detained
last May after arriving at Chicago's O'Hare International
Airport from overseas, was part of a scheme by al Qaeda to
explode a conventional bomb laced with radioactive
material, possibly in Washington, D.C.

After Padilla had been detained for a month as a material
witness in a federal facility in New York City, President
Bush declared him an enemy combatant and he was
transferred to a Navy brig in Charleston, South Carolina.

His attorneys have argued that he ought to be returned to
New York and that the government should be forced to
comply with standard criminal court procedures, including
letting him speak to his attorneys.



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