October 20, 2003, 3:30 P.M.
The detention, interrogation and isolation of U.S. citizens identified as “enemy combatants” pursuant to post-9/11 federal legislation is at the root of a significant constitutional debate, and we should all be paying attention. Yaser Esam Hamdi, a U.S. citizen living in Afghanistan, was captured by Northern Alliance forces and given over to American troops shortly after the collapse of the Afghan government. Hamdi admits only to living in a “war zone,” and not to being engaged in any activity against the U.S. or coalition troops. Instead, Hamdi is being held on an affidavit by a State Department official who has no actual knowledge of what Hamdi was doing in Afghanistan, and he is being denied his constitutional protections, due him as a U.S. citizen, simply because of where he was apprehended.
No one knows why Hamdi is being held because the government says it does not have to tell us. Why? Because Hamdi has been given “special status” as an enemy combatant. That is very different than a P.O.W. A prisoner of war is only required to provide his name, rank and serial number to his captors, and he cannot be tried for crimes against the captor nation other than for specific “war crimes” outlined in the Geneva Convention of 1949. Unlawful combatants can be tried in military tribunals. However, Hamdi has never been charged or tried, he is simply being held without the protection of his rights as a citizen.
Another “enemy combatant,” Jose Padilla, is also being held in a military brig without the benefit of or access to a lawyer, a right to speedy trial or even the right to be informed of the charges against him. In addition, Padilla was arrested on U.S. soil. The government says that Padilla was planning to unleash a so-called dirty bomb in Washington, D.C. Since there have been no charges, and since citizen Padilla has been denied any due process at all, the government’s claims have never been substantiated or tested.
At the same time, both Zacarias Moussaoui, the alleged 20th hijacker, and Richard Reid, accused shoe bomber, neither of whom is a U.S. citizen, are being tried in federal civilian courts. What gives? U.S. citizens are not being tried in civilian courts while foreign born alleged terrorists are.
Yaser Hamdi asked a federal court in January of 2003 to intervene in his case, and to order the government to afford him treatment consistent with his constitutional rights. His request was denied. A later appeal to the 4th Circuit Court of Appeals was also unsuccessful. Hamdi has now asked the U.S. Supreme Court to hear his case, and to determine if it is constitutionally permissible for the executive branch to hold U.S. citizens in communicado, without access to counsel and with no opportunity to be apprised of or to question the charges against him simply because he was seized abroad and was thus declared an “enemy combatant.” This is dangerous ground.
Would Hamdi have been held if he were in Afghanistan as a journalist, a student, an aid worker or a missionary? With a name like Yaser Esam Hamdi, it is certainly likely. How about if his name was Smith? Probably not. The problem is that we don’t know what Hamdi was doing in Afghanistan, or that Padilla was actually going to build a dirty bomb. We have only the government’s word and that’s not good enough where the rights of citizens are concerned. John Walker Lindh, incidentally, was captured on a battlefield and he got a lawyer.
There is no distinction in our constitution between “enemy combatant” citizens and ordinary citizens. There is simply no precedent in this country’s history or at law for what is happening. The 1942 Supreme Court case cited by the government in the Hamdi matter, Ex Parte Quirin, distinguished between lawful combatants (P.O.W.s) and unlawful combatants (terrorists), but still held that the latter are to be tried in military tribunals. The government has no intentions of trying many of these captives, and therefore it seeks to avoid the subject of their citizenship.
If the arguments were consistent or even reconcilable with the government’s position in other cases, such as those of Reid and Moussaoui, thair position would be at least understandable. There is no such consistency.
This is but another example of the Bush administration’s undermining of our civil liberties. It may well be that Hamdi and Padilla are truly bad guys. But if they are, the government needs to prove it. That’s the law, and no one, not even the President, is above it.