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Suspending Habeas Corpus. (The Last Word).

Some things are true even if the Washington Post says them. Reviewing the Bush administration's conduct in the case of accused terrorist Yaser Esam Hamdi, a June 20th Post editorial concluded that under the powers claimed by the administration, "any American could be locked up indefinitely, without a lawyer, on the president's say-so."

Hamdi was among the Taliban and al-Qaeda personnel captured by U.S. forces in Afghanistan. After Hamdi was transported to the U.S. detention center in Guantanamo Bay, Cuba, it was learned that he had been born in Louisiana, and may retain U.S. citizenship. He was relocated to a Navy brig in Norfolk, Virginia, where he has been held incommunicado. As an American citizen, Hamdi would have the right to legal counsel. A federal judge ordered the administration to allow Federal Public Defender Frank Dunham to have access to Hamdi.

Responding to an administration request, the Fourth Circuit Court of Appeals ruled that because Dunham has never met Hamdi (military officials prevented the meeting from taking place), he could not represent the detainee. After Dunham filed an action on behalf of the accused terrorist's father, he was granted a judicial motion ordering the administration to allow the attorney to meet the detainee. On June 19th, the BushAshcroft Justice Department filed another brief with the Fourth Circuit Court outlining a claim of presidential power that is breathtaking in its scope and bone-chilling in its implications.

According to the Bush administration's brief, "the military has the authority to capture and detain individuals whom it has determined are enemy combatants ... including enemy combatants claiming American citizenship. Such combatants, moreover, have no right of access to counsel to challenge their detention." Furthermore, continues, the brief, "the Court may not second-guess the military's enemy-combatant determination" because by doing so they would intrude on "the President's plenary authority as Commander in Chief," which supposedly includes the power to establish policies concerning "the capture, detention, and treatment of the enemy and the collection and evaluation of intelligence vital to national security."

This amounts to suspending the HABEAS CORPUS guarantee, the "Great Writ" that is the foundation of our system of justice under law. The administration's brief contends that "in time of active conflict, a court considering a properly filed habeas action generally should accept the military's determination that a detainee is an enemy combatant. Going beyond that determination ... [would] intrude upon the constitutional prerogative of the Commander in Chief (and military authorities acting at his control)...." After all, the "most fundamental" military judgment is "the determination that someone who was captured in the theater of battle is an enemy combatant and should be detained as such," and courts should defer to the military "when asked to review military decisions in a time of war."

Herein lies the chief flaw in the administration's case: Only Congress -- not the president or "military authorities acting at his control" -- can declare war. Furthermore, the president does not enjoy "plenary" (absolute or unqualified) authority in his role as commander in chief, since both he and the military exercise their powers subject to the budgetary powers of Congress, and its authority to establish regulations governing the military.

According to the Justice Department's brief, the commission under which the military can detain "enemy combatants" is the congressional resolution authorizing the president to use force "against those nations, organizations, or persons" involved in the September 11th attack. But elsewhere the brief admits that among the legal issues raised by this case is the question of "whether the existence, or not, of a congressional declaration of war negates the government's authority to capture and detain enemy combatants." This admission is crucial, given that in its brief the administration repeatedly claims powers that can only be exercised pursuant to a declaration of war, and subject to congressional review.

The Bush administration has essentially resurrected the Lincoln administration's claim that a military commander, acting under presidential orders, can be "the supreme legislator, supreme judge, and supreme executive" within his area of responsibility. That assertion was made to defend the Lincoln administration's creation of military tribunals to prosecute suspected Confederate agents and Northern civilians accused of disloyalty.

The Supreme Court struck down that claim in the 1866 case Ex Parte Milligan, ruling that "martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise of their jurisdiction."

The 1943 case Ex Parte Quirin, which dealt with a military tribunal for eight accused Nazi saboteurs (including an American citizen), upheld using such courts -- in the context of a declared war. There is simply no justification in the Constitution, law, or precedent for the Bush administration's claim that a president, exercising "plenary authority," can authorize military commanders to designate individuals as "enemy combatants" and hold them indefinitely without trial.
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Article Details
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Title Annotation:war on terrorism
Author:Grigg, William Norman
Publication:The New American
Article Type:Brief Article
Geographic Code:1USA
Date:Jul 15, 2002
Previous Article:Correction, please!
Next Article:Founders and the pledge. (Letters to the Editor).

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