Bush claims right to jail US citizens indefinitely, without charges or hearing
By Bill Vann
24 June 2002
In a legal argument that could as easily be used to justify a
declaration of martial law, the Justice Department last week asserted
the right of the president and the military to indefinitely hold US
citizens deemed “enemy combatants” incommunicado, without formal
charges, the right to a hearing or legal counsel.
This assertion of extra-constitutional powers came in a protracted
legal tug-of-war over Yaser Esam Hamdi, a 21-year-old detainee who was
captured in Afghanistan and brought to the US detention camp at the
Guantanamo Bay naval base in Cuba. Earlier this year, after it was
discovered that he was born in Louisiana and in all likelihood is
entitled to US citizenship, he was transferred to a Navy brig in
Virginia.
The Bush administration has waged a ferocious battle to block any
judicial hearing to determine Hamdi’s status and any contact between
the detainee and public defenders seeking to represent him.
While a lower court ruled that he had the right to consult with a
lawyer, the Justice Department filed an appeal barring any meeting.
After blocking Federal Public Defender Frank W. Dunham Jr. from seeing
Hamdi, it argued in court that the attorney had no standing in the
case because he “has no relationship” with the detainee.
The 46-page government brief affirms that “the military has the
authority to capture and detain individuals whom it has determined are
enemy combatants in connection with hostilities in which the Nation is
engaged, including enemy combatants claiming American citizenship.
Such combatants, moreover, have no right of access to counsel to
challenge their detention.”
It goes on to assert that it makes no difference whether the alleged
combatants are captured overseas or in the United States.
In a derisive attack on the US District Court Judge who ordered the
military to allow Hamdi to meet with an attorney, the Justice
Department insisted that once deemed an enemy combatant, an individual
has no rights, and that the courts have no business questioning the
decisions of the military.
“A court’s inquiry should come to an end once the military has shown
... that it has determined that the detainee is an enemy combatant,”
the brief states. “[T]he court may not second-guess the military’s
enemy-combatant determination.”
For the courts to question in any way an order by the military or the
president to grab someone off the street and lock him up for life as
an “enemy,” the Justice Department argued, would constitute
interference in “an area in which they have no competence, much less
institutional expertise,” and would “intrude upon the constitutional
prerogative of the Commander in Chief.”
The brief goes on to warn ominously against creating “a conflict of
military and judicial opinion highly comforting to the enemies of the
United States.”
The legal arguments for such sweeping police-state powers are
unprecedented, as are the actions that have already been taken by the
Bush administration in holding individuals prisoners of the military
without hearings or trial.
In addition to Hamdi, the government has announced plans to continue
holding Jose Padilla, the Brooklyn-born US citizen who was grabbed by
FBI agents last month as he deplaned from an international flight to
Chicago. Padilla likewise is being held in a military brig without
charges or a hearing, and the government has refused to allow his
attorney to see him. Justice Department officials admit that they lack
sufficient evidence to indict Padilla on allegations that he was part
of a plot to detonate a radioactive “dirty bomb.”
In its brief in the Hamdi case, the government leaned heavily on a
1942 Supreme Court decision allowing a military trial of German
saboteurs arrested in the US. That decision, however, affirmed the
defendants’ right to appeal their status in federal court, a right the
Bush administration is abrogating. Nor did the high court then allow
for indefinite detention and denial of counsel.
In the Hamdi and Padilla cases—as with those of the hundreds of
immigrants who have been rounded up without charges or hearings—the
government has invoked “the war effort” to justify its riding
roughshod over constitutional rights.
There has been no congressional declaration of war, of course, and
Bush and other administration officials have asserted that their “war
on terrorism” could last for decades. This raises the specter of a
permanent suspension of such core constitutional guarantees as freedom
from “unreasonable searches and seizures,” and the right to due
process, a jury trial and legal counsel.
The Justice Department’s position likewise upends the fundamental
principle of civilian control of the military, placing unprecedented
power over American citizens in the hands of generals who are
unelected and answerable to no one.
It should be recalled that the “dirty wars” of torture, massacres and
“disappearances” carried out by US-backed military dictatorships
throughout Latin America over the course of more than two decades
beginning in the 1960s were all waged in the name of a “war on
terrorism.”
The right of the military to detain individuals indefinitely without
charges or hearings now asserted by the Bush administration in the US
was upheld by the courts in Argentina, Brazil, Uruguay, Chile and
other countries, resulting in the torture and murder of hundreds of
thousands of workers, intellectuals and youth deemed enemies of the
military regimes.
Responding to the government’s arguments, the lawyers seeking to
represent Hamdi pointed to this threat.
“The Executive Branch of the Government does not have the authority to
detain an American citizen incommunicado and to unilaterally withdraw
from the courts the power to inquire into the propriety of his
detention,” wrote Assistant Federal Public Defender Robert J. Wagner
in his brief to the court.
He added, “A contrary conclusion would eliminate any limitation upon
[the government’s] power to indefinitely detain any American citizen,
under a state of war or peace, as long as the military determines that
the detainee is an enemy.”
Quoting the government’s argument that the courts have no business
questioning the military’s designation of a detained US citizen as an
“enemy combatant,” the Washington Post editorialized: “These words
were not written by some petty dictator whose kangaroo courts
rubber-stamp his every whim and whose whims may include locking up
citizens he regards as enemies. They were filed yesterday by the U.S.
Department of Justice ...”
The editorial, entitled “The I-said-so test,” goes on to warn: “If
this is correct, any American could be locked up indefinitely, without
a lawyer, on the president’s say-so. You don’t have to believe that
Mr. Hamdi is innocent to see grave peril in this.”
What the Washington Post and others within the political establishment
who have voiced muted protests over the Bush administration’s
assumption of dictatorial powers deliberately obscure, however, is the
connection between this “grave peril” to democratic rights at home and
the eruption of US militarism abroad.
The American Civil Liberties Union (ACLU), for example, issued a
condemnation of the military detention of Jose Padilla, criticizing it
from the standpoint of weakening the “war on terrorism.”
“For the United States to maintain its moral authority in the fight
against terrorism,” declared Anthony D. Romero, ACLU executive
director, “its actions must be implemented in accordance with core
American legal and social values.”
In reality, the “moral authority” of the Bush administration’s
military campaigns is entirely consistent with its adoption of forms
of police-state rule. Both are the expression of an increasingly
desperate and disoriented ruling elite that has determined to defend
its wealth and interests by means of naked force.
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