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White House Defends Hamdi's Limited Rights

In a high court brief, the Bush administration says war customs allow denying suspect counsel.

December 04, 2003|Richard B. Schmitt | Times Staff Writer

WASHINGTON — A day after saying it would provide a lawyer to a U.S. citizen captured with Taliban soldiers in Afghanistan, the Bush administration argued in a brief to the Supreme Court that the rights of such "enemy combatants" remained extremely narrow, and that the government could detain such suspects for the duration of hostilities without charging them.

On Tuesday, the Defense Department announced that Yaser Esam Hamdi -- who has been detained for almost two years without access to counsel or to court -- would be allowed to see an attorney.

In doing so, the administration appeared to be extending an olive branch to critics of its anti-terrorism policy who have expressed concern that Hamdi, as an American citizen, was being denied fundamental rights under the Constitution.

The decision also comes as federal appeals courts are stepping up their review of administration anti-terrorism policies.

But in the filing Wednesday with the high court, which is considering a challenge to Hamdi's detention brought by a federal public defender, the government underscored that it viewed those rights quite narrowly.

Rather than being compelled by the law, officials said they acted to grant Hamdi access to a lawyer only "as a matter of discretion and military policy," and only after they had completed interviewing him and concluded that a lawyer would not interfere with intelligence gathering.

They added that there was "no general right to counsel under the laws and customs of war," and that the military had the power to detain alleged combatants "at least for the duration of the conflict," without having to file charges against them.

"The special context in which this case arises -- wartime detention of combatants, not criminal punishment -- significantly diminishes the due process rights that Hamdi enjoys, even as a presumed American," the government asserted. In effect, it argued, the authority of President Bush, as commander-in-chief, trumps that of the civilian courts in times of war.

Separately, the Pentagon announced Wednesday that an Australian prisoner at the U.S. Navy Base at Guantanamo Bay, Cuba, would become the first foreign terrorist suspect to be given a U.S. military lawyer. David Hicks is one of six Guantanamo prisoners whom Bush has named as possible candidates for trial by a special military tribunal.

In the Hamdi case, administration critics, including defense lawyers, civil-liberties groups and Democratic members of Congress, said they viewed the providing of a lawyer as only a first step, and questioned its significance without additional rights being afforded Hamdi, such as a hearing to challenge his detention.

"Even if Mr. Hamdi is afforded his overdue right to see an attorney, it means little without allowing him access to the courts," Rep. Adam B. Schiff (D-Burbank) said in a statement. "Contrary to the administration's contention, the plight of citizen detainees -- who have yet to be formally charged with a single offense -- should not be beyond any court's reach."

Schiff introduced legislation in Congress in February that would require the administration to establish clear standards and criteria for labeling citizens as enemy combatants, and procedures guaranteeing them timely judicial review of their detentions.

In a separate statement, the American Bar Assn. said it hoped that the decision in Hamdi's case would be "the first step in correcting a policy that could tear at the Bill of Rights."

Two other men have been designated enemy combatants by the president, including a Brooklyn-born former gang member, Jose Padilla, who was picked up by the FBI 18 months ago at a Chicago airport and is being held at the same South Carolina military brig as Hamdi.

The case of Padilla, whom the government has linked to an Al Qaeda plot to detonate a radioactive explosive device in the United States, has been even more of a rallying cry for civil libertarians than that of Hamdi, because Padilla was an American citizen captured on U.S. soil.

Donna Newman, a New York lawyer who had advised Padilla before the government barred her from having contact with him, said she had not heard from the government about when she might be able to meet with her client again.

Padilla's detention is pending before a federal appeals court in New York.

At a hearing last month, a Justice Department lawyer indicated that the government was close to concluding its questioning of Padilla, and was considering offering him legal counsel when it was finished.

Newman questioned the policy of providing a lawyer after a client had already been interrogated.

"Aren't you putting the cart before the horse?" she asked.

The government, in effect, is saying, " 'We have already questioned him. So now, you can have him," ' Newman said.

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