George W. Bush's Constitution
Nat Hentoff
Village Voice

Saturday 3 January 2003

'Does It Take a Lifetime to Question a Man?'

It is hard to imagine that America would look kindly on a foreign government that demanded the right to hold some of its own citizens in prison, incommunicado, denying them access to legal assistance for as long as it thought necessary, without ever charging them with a crime.

Nevertheless, that is the position that George Bush's administration has tried to defend in the courts with regard to American citizens whom it has deemed to be "enemy combatants." --The Economist, London, December 14, 2002

The imprisonment of "enemy combatant" Yaser Esam Hamdi in a naval brig in the United States is not a matter of concern to most Americans, since they do not know of Mr. Hamdi's isolation from the Bill of Rights, and might not care if they did. But the Supreme Court will ultimately decide whether George W. Bush's Constitution will replace--in significant parts--the Constitution that most Americans are also not familiar with.

When Mr. Hamdi's case--though not Mr. Hamdi personally--came before federal judge Robert Doumar in Norfolk, Virginia, that veteran jurist, appointed by Ronald Reagan, was astonished at the sweep of the government's declaration that the president had the right to personally put Hamdi in the brig and strip him of all his constitutional rights after claiming that he was an "enemy combatant." It is also the government's contention that the courts have minimal jurisdiction over the commander in chief as he locks up Americans he calls "enemy combatants" during our war against terrorism.

Nonetheless, Judge Doumar insisted that the government explain itself, and was handed a two-page sworn document, written by Michael Mobbs, a Defense Department official, justifying the president's totally depriving Hamdi of his freedom indefinitely--without his being charged with any crime.

Before getting to the judge's angry reaction to the Mobbs statement, it's necessary to note that just about every reference to Hamdi in the media has said--as printed in the November 1 New York Law Journal--that "Hamdi was seized while fighting with the Taliban in Afghanistan." How do we know that to be true? Don't you trust your source--your government?

As Katherine Seelye wrote in The New York Times (August 13, 2001) of Judge Doumar's response to the official Mobbs document giving the government's evidence: "He made very clear that he found the statement lacking in nearly every respect."

A fuller account of what Judge Doumar said is in an extraordinarily valuable report by the Lawyers Committee for Human Rights: A Year of Loss: Reexamining Civil Liberties Since September 11. Released last September 5, the report quotes more of what Judge Doumar indignantly said to the government prosecutor who had handed him the Mobbs document:

"I'm challenging everything in the Mobbs declaration. If you think I don't understand the utilization of words, you are sadly mistaken."

Mr. Mobbs had declared that Hamdi was "affiliated with a Taliban unit and received weapons training." Bolstering the government's case--or so it seemed--were photographs in some of the media of Hamdi carrying a weapon. So what was Judge Doumar's beef?

The Mobbs document, Judge Doumar said bluntly, "makes no effort to explain what 'affiliated' means nor under what criteria this 'affiliation' justified Hamdi's classification as an enemy combatant. The declaration is silent as to what level of 'affiliation' is necessary to warrant enemy combatant status. . . .

"It does not say where or by whom he received weapons training or the nature and content thereof. Indeed, a close inspection of the declaration reveals that [it] never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban. Without access to the screening criteria actually used by the government in its classification decision, this Court is unable to determine whether the government has paid adequate consideration to due process rights to which Hamdi is entitled under his present detention." (Emphasis added.)

Think about that. This American citizen was officially stripped of all his constitutional rights and this flimsy two-page document is the government's explanation before the court.

If the government had more information, why didn't it show that evidence in camera (to the judge in his private chambers)?

I doubt that the relatively few Americans--not counting constitutional lawyers--who have been following this crucial case know how thoroughly Judge Doumar discredited the government's explanation for its indefinite punishment--without charges--of Hamdi.

Another point, this one entirely ignored by the media, is in an amicus brief to the Fourth Circuit Court of Appeals by the National Association of Criminal Defense Lawyers:

"[The government claims] that Mr. Hamdi 'surrendered' not to U.S. forces, but to a group of counter-insurgent Afghanis popularly called the 'Northern Alliance.' However, [the government then proceeds] to repeatedly claim that Hamdi was 'captured'--an important distinction when evaluating his legal status vis-à-vis the United States and under international law. One who surrenders before engaging in 'combat' can hardly be classified as a 'combatant' logically, much less legally."

In addition to Mr. Mobbs's pieces of paper, the government prosecutor also told Judge Doumar that the Defense Department had to hold Hamdi for interrogation. And since the war on terrorism has no defined end in sight, he must be "detained" indefinitely.

Said Judge Doumar: "How long does it take to question a man? A year? Two years? Ten years? A lifetime? How long?"

Under this intensive fire, the prosecutor, Gregory G. Garre, an assistant to Solicitor General Theodore Olson, had only this response: "The present detention is lawful."

As Judge Doumar said after he had denounced the two-page declaration: "So the Constitution doesn't apply to Mr. Hamdi?"

I will follow this case through the Fourth Circuit Court of Appeals and then, I expect, to the United States Supreme Court. Those nine men and women will decide whether the essential liberties in the Framers' Constitution have been removed by George W. Bush. It's a pity the Democratic Party cares much less about civil liberties than about Bush's tax cuts.