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THE NATION

U.S.-Born Talib Can Be Denied Trial, Court Says

January 09, 2003|Richard A. Serrano | Times Staff Writer

WASHINGTON — A federal appeals court ruled Wednesday that the government can continue to legally hold an American-born Taliban fighter as an enemy combatant without charging him with a crime or allowing him his day in court.

The decision by three judges on the U.S. 4th Circuit Court of Appeals in Richmond, Va., marked a significant victory for the Bush administration since it came under attack for allegedly overstepping the law in dealing with captives from the war on terror.

Atty. Gen. John Ashcroft hailed the ruling and said it lends strength to the government's campaign to fight terrorism in this country and abroad.

"Preserving the president's authority is crucial to protect our nation from the unprincipled, unconventional and savage enemy we face," Ashcroft said.

The decision is the most significant so far in a series of rulings upholding the government's controversial move to hold terrorist suspects without trial both in the United States and at the U.S. naval base at Guantanamo Bay, Cuba. The ruling clearly defines the government's authority in wartime by allowing it to skirt conventional judicial procedures.

The case involves Yaser Esam Hamdi, a Louisiana native who was raised in Saudi Arabia and captured in Afghanistan.

He was initially held along with other enemy combatants at Guantanamo. But in April he was transferred to a Navy brig in Norfolk, Va., when it was learned he had never renounced his American citizenship.

Hamdi was born in 1980 in Baton Rouge, and both his father in Saudi Arabia and his attorney in Alexandria, Va., have insisted he be given the right to a trial.

The government, however, continues to hold him incommunicado, and it apparently plans to do so until the end of the war on terror without first filing charges against him in the U.S. courts. The appellate court said the judiciary should not become involved in matters left to the White House and the Pentagon in times of war, specifically not in interfering in the status of prisoners of war.

"The safeguards that all Americans have come to expect in criminal prosecutions do not translate neatly to the arena of armed conflict," the court said.

The judges added: "The military has been charged by Congress and the executive with winning a war, not prevailing in a possible court case."

The court accepted a nine-paragraph declaration from Michael H. Mobbs, a special advisor to the undersecretary of Defense for policy, as testimony that Hamdi was wielding an assault rifle when he was captured fighting for the Taliban in Afghanistan in late 2001.

That declaration, the judges said, makes Hamdi an enemy soldier captured on the battlefield, more than a typical American citizen arrested in the commission of a crime.

It was unclear whether Hamdi would appeal; his federal public defender, Frank Dunham Jr., was out of town and could not be reached for comment.

But other legal and military experts said they could see the issue going as high as the U.S. Supreme Court, especially since Wednesday's ruling could have a chilling effect on others taken into custody since the Sept. 11, 2001, terror attacks on New York and the Pentagon.

Most notable, they said, is the question of what effect the decision might have in the case against Jose Padilla. He was born in New York and arrested in Chicago for allegedly plotting to attack Americans with a "dirty," or radioactive, bomb.

Padilla has been held incommunicado in a Navy brig in South Carolina. But he recently won the right to meet with his lawyer, who is preparing to try to persuade a New York federal judge to have her client released or charged in court.

Eugene R. Fidell, an expert on military law, said "the government should feel that it has largely won the battle" now that the appellate court has ruled.

But, he added, other broad issues remain, including the fact that the government can hold enemy combatants only until the war is over.

As of now, Fidell said, the government should be given "real deference" because the war on terror is continuing.

But, he said, "that doesn't mean the [situation] can go on for 50 years."

The appellate court took note of that issue too, pointing out that with the war continuing, the White House and the Pentagon are "in the best position to appraise" the status of the conflict.

"American troops are still on the ground in Afghanistan," the justices said, "dismantling the terrorist infrastructure in the very country where Hamdi was captured.... Hostilities have not yet reached their end."

The court also said a lower court erred last year in challenging the declaration by Mobbs and ordering the government to provide evidence that Hamdi was an enemy soldier and not an innocent caught up in the region when the war broke out.

"It is undisputed that Hamdi was captured in Afghanistan during a time of armed hostilities," the judges said. "It is further undisputed that the executive branch has classified him as an enemy combatant."

With that in mind, the appellate court concluded that "there is no purely legal barrier to Hamdi's detention."

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