'Enemy Combatant' Issue
Rising To The Fore
Bush's Aides Press For US Powers To Detain Americans
By Wayne Washington
Boston Globe Staff

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.
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.
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.
The Bush administration got a three-judge panel of the Fourth Circuit to stay that ruling during an appeal.
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.''
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.
From Aftermath News
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
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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