- RICHMOND - The Bush administration
pressed forward with its argument yesterday that ''enemy combatants'' should
not have access to a lawyer even if they are American citizens, in a federal
case that will have broad implications for the administration's strategy
in the war against terrorism.
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- In an unusual telephone conference call with three appellate
judges, Deputy Solicitor General Paul Clement reiterated the administration's
assertion that the president alone has the power to make a determination
- not subject to judicial review - that someone is an enemy combatant and
that such people should not have access to lawyers. Enemy combatants can
also be detained until the war on terrorism ends - another determination
that the president alone is empowered to make, Clement argued.
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- Geremy Kamens, an assistant federal public defender speaking
on behalf of Yasser Esam Hamdi, the Saudi American captured with Taliban
forces in Afghanistan, countered that the US Constitution forbids the unlimited
detention of a US citizen.
-
- Judge William B. Traxler Jr. and Judge William W. Wilkins
Jr. listened from their chambers in Greenville, S.C. Chief Judge J. Harvis
Wilkinson III listened from Charlottesville, Va. The judges, members of
the Fourth Circuit Court of Appeals based in Richmond, asked each attorney
numerous questions but did not rule.
-
- The Fourth Circuit is one of the nation's most conservative,
and Wilkinson, who asked most of the questions yesterday, was most aggressive
with Kamens, demanding to know what legal precedent mandates that someone
who has been declared an enemy combatant have access to a lawyer.
-
- ''Your honor,'' Kamens said, ''I believe the Constitution
prevents the indefinite detention of an American citizen.''
-
- Wilkinson seemed unsatisfied with that answer and strongly
criticized a ruling last month by a US District Court in Norfolk that Hamdi
be given access to an attorney.
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- The Bush administration got a three-judge panel of the
Fourth Circuit to stay that ruling during an appeal.
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- Clement said allowing enemy combatants to have access
to a lawyer would effectively kill the government's ability to get information
from them that could prevent future acts of terrorism. Wilkinson agreed,
noting that any good attorney would advise an enemy combatant not to talk
because anything he says could be used against him in a criminal proceeding.
-
- Constitutional scholars have said the Hamdi case - along
with that of Jose Padilla, the American citizen suspected of plotting with
Al Qaeda to explode a ''dirty bomb'' in the United States - will go a long
way toward defining what an enemy combatant is and to what legal assistance,
if any, such a person would be entitled.
-
- Those scholars said the government's argument that Hamdi
is an enemy combatant is much stronger than its argument against Padilla,
also known as Abdullah al Muhajir, who was arrested last month in the United
States.
-
- The government asserts that two legal cases, one centered
on a team of German saboteurs caught in the United States during World
War II and another involving an Italian-American caught fighting with Mussolini's
troops in Sicily, stand as the legal underpinning of the administration's
position. Congress affirmed this presidential power immediately after the
attacks, government attorneys have argued, when it authorized Bush to use
force against ''nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order
to prevent any future acts of international terrorism against the United
States by such nations, organizations or persons.''
-
- Congressional leaders supported Bush's planned strikes
against Al Qaeda and Taliban forces in Afghanistan. Constitutional scholars,
however, say that while congressional support is unquestioned, the two
cases the government cites as precedent do not match the circumstances
of either the Hamdi or Padilla cases. There is no legal precedent for Bush
to make a determination that would result in a US citizen being held indefinitely
without trial or access to an attorney, according to constitutional scholars.
-
- ''It's a breathtaking assertion of power that we wouldn't
grant someone who didn't seem affable and a nice guy,'' said Laurence Tribe,
a constitutional scholar at Harvard Law School. ''But being affable isn't
a reason to let someone toss out the Constitution.''
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- Wilkinson repeatedly questioned Clement's assertion that
courts have a severely limited role in ruling on whether a president has
correctly determined someone to be an enemy combatant.
-
- This story ran on page A13 of the Boston Globe on 6/26/2002.
© Copyright 2002 Globe Newspaper Company.
http://www.boston.com/dailyglobe2/177/nation/_Enemy_comb
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-
-
- Comment
-
- From Aftermath News
pjw56@hotmail.com
6-28-2
-
- Heil Fuhrer Bush And Reichmarshall Ashcroft!
-
- In Germany, they first came for the Communists and I
didn't speak up because I wasn't a Communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade
unionists, and I didn't speak up because I wasn't in a union. Then they
came for the Catholics, and I didn't speak up because I was a Protestant.
Then they came for me and by that time no one was left to speak up.
-
- --Pastor Martin Niemoller
-
- IF YOU ALLOW THE ELIMINATION OF RIGHTS FOR SOME, YOU
ALLOW IT FOR ALL.
-
- The president alone has the power to make a determination
- not subject to judicial review - that someone is an enemy combatant and
that such people should not have access to lawyers...
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