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.