American-born Yaser Esam Hamdi, a 22-year-old captured in Afghanistan in 2001 while fighting for the Taliban, may be as dangerous as the Justice Department says he is. But Americans may never know, after an appeals court ruling that gouges another chunk from constitutional due process.
In the first appellate ruling on the president's power to detain U.S. citizens as enemy combatants, three judges on the Richmond, Va., appeals court forcefully defended the power of a wartime chief executive to indefinitely detain a U.S. citizen captured on the battlefield and deny that person a lawyer. They effectively abdicated "any role for the courts" in the president's conduct of war.
There is no doubt that the balance between civil liberties and government control shifts during war. But the worldwide war against terrorism is without place, without face and with no army on the other side. In such a vague and shifting conflict, and perhaps a never-ending one, the courts should lean toward preserving liberty, not toward an absolute right to imprison U.S. citizens on U.S. soil without charge.
Hamdi, who was raised in Saudi Arabia, was initially held along with other enemy combatants at the U.S. naval base at Guantanamo Bay, Cuba. But in April, when U.S. military officials learned that he was born in Louisiana and had never renounced U.S. citizenship, Hamdi was transferred to a Navy brig in Norfolk, Va. After Wednesday's decision, he will probably remain there for the foreseeable future, held incommunicado and without charges or a lawyer.
Hamdi is one of two U.S. citizens deemed enemy combatants. The other, Jose Padilla, was allegedly planning to construct a radioactive bomb when agents nabbed him in Chicago last year. A trial court judge ruled last month that Padilla, now locked in a South Carolina brig, is entitled to a lawyer but that his indefinite detention without charge "is not, per se, unlawful."
The Virginia appeals court could well be writing an epilogue to Chief Justice William H. Rehnquist's 1998 book, "All the Laws but One," on the history of civil liberties from the Civil War to World War II.
In reviewing how federal courts have responded to presidents' assertions of military authority, Rehnquist concluded that during times of war, " ... it is both desirable and likely that more careful attention will be paid by the courts to ... the government's claims of necessity as a basis for curtailing civil liberty."
However, the Richmond court seems to shrink even from its duty to decide whether presidential and congressional acts pass constitutional muster. The judges argue that because the Constitution gives the president broad power to wage war, "to delve further into Hamdi's status and capture would require us to step so far out of our role as judges that we would abandon the distinctive deference that animates this area of the law."
In this still-undeclared war, the beginning and end of which is left solely to presidential discretion, the perils to anyone the government decides is a danger -- or an embarrassment -- are obvious.