'Combatants' Lack Rights, U

'Combatants' Lack Rights, U.S. Argues
Brief Defends Detainees' Treatment

By Tom Jackman and Dan Eggen
Washington Post Staff Writers
Thursday, June 20, 2002; Page A01

Prisoners declared enemy combatants do not have the right to a lawyer and the American judiciary cannot second-guess the military's classification of such detainees, the Justice Department argued yesterday in a brief to an appeals court.

The filing in the case of Yaser Esam Hamdi, the U.S.-born man captured with Taliban forces and being held at a Navy brig in Norfolk, provides the most forceful enunciation yet of the Bush administration's position that those declared enemy combatants in the war on terrorism have no right to counsel and can be held indefinitely. The strongly worded brief signed by Deputy Solicitor General Paul D. Clement also argues that the civilian courts have no standing to intervene.

The document signals the government's intent to assert broad presidential authority in the cases of terrorist suspects apprehended overseas. It raises the likelihood that similar authority will be sought in the case of Jose Padilla, a Brooklyn, N.Y., native arrested in Chicago in May on suspicions that he was planning to participate in a "dirty bomb" attack. Padilla, also known as Abdullah al Muhajir, has been declared an enemy combatant.

Hamdi, 21, was captured in Afghanistan in November and later transferred to Guantanamo Bay, Cuba, where he revealed to investigators that he was born in Louisiana, prompting his transfer to Norfolk. Although his parents are Saudi and although Hamdi lived most of his life in Saudi Arabia, his family said he never renounced his U.S. citizenship.

The government's position was outlined in a 46-page filing with the 4th U.S. Circuit Court of Appeals in Richmond. It came in response to a ruling by a federal judge in Norfolk that allowed Hamdi to see Federal Public Defender Frank W. Dunham Jr., who had filed a motion seeking access to the detainee.

"There is no right under the laws and customs of war for an enemy combatant to meet with counsel concerning his detention, much less to meet with counsel in private, without military authorities present," the Justice Department wrote.

"The court may not second-guess the military's enemy combatant determination. Going beyond that determination would require the courts to enter an area in which they have no competence, much less institutional expertise, intrude upon the Constitutional prerogative of the Commander in Chief . . . and possibly create 'a conflict between judicial and military opinion highly comforting to enemies of the United States,' " the brief said, citing a 1950 Supreme Court ruling.

Some legal scholars yesterday compared the filing to arguments used by the government during World War II to intern thousands of Japanese Americans as alleged security threats, and they warned that President Bush is seeking unfettered authority to lock up U.S. citizens with no external review.

"This is really an astounding assertion of authority," said David Cole, a Georgetown University law professor. "It's not just that you have no right to a lawyer, it's that you have no right to even have a hearing. . . . If that is true, then there is really no limit to the president's power to label U.S. citizens as bad people and then have them held in military custody indefinitely."

Dunham, who has until tomorrow to respond, agreed. "It is scarier than the dirty bomb," he said. "Now the government can label somebody something and then throw the key away forever. . . . The idea that a court can't inquire into these detention situations, to determine whether they are reasonable or not, is downright scary to me."

Others, however, said the government was well within its rights to detain combatants in a time of war. The fact that the current conflict involves an undeclared war that is not against a specific country should not undermine the government's ability to apprehend those who intend to do harm, they said.

"In ordinary wars, the courts would not even look at a case like this, but in this rather peculiar war, the issues are less clear," said Ruth Wedgwood, a law professor and terrorism expert at Yale University. "But this case is very much a battlefield capture, so that should make it easier. . . . I think the chances are very good that the court will defer to presidential authority on this."

The Justice Department noted that Hamdi was captured with military forces in Afghanistan and that detaining him and other soldiers served the purpose both of preventing them from fighting again and of obtaining information from them. In the nine months since the conflict began, the enemy combatant tag has been placed on only three Americans: Hamdi, Padilla and John Walker Lindh, who has been charged in civilian criminal court and afforded rights unavailable to the others.

The government also argued that allowing a prisoner to have access to a lawyer "would directly interfere with -- and likely thwart -- ongoing efforts of the United States military to gather and evaluate intelligence about the enemy."

Such intelligence probably has prevented additional harm to the United States, and allowing lawyers access may enable prisoners to pass secret messages to the enemy about military facilities or operations and undermine the military's authority, the brief says.

The filing also asserts the government's right to declare a prisoner an enemy combatant whether that person was captured on the battlefield -- such as Hamdi and Lindh -- or anywhere else, such as Padilla.

Writing that enemy combatants have no right to counsel, the Justice Department says: "That is true with respect to enemy combatants who are captured and detained on the battlefield in a foreign land; enemy combatants who are captured overseas and brought to the United States for detention . . . and enemy combatants who are captured and detained in this country."