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Monday, Jul. 22, 2002

Now that the government has successfully negotiated a plea agreement with John Walker Lindh, the American citizen captured in Afghanistan last year, it is time to reexamine the treatment of the hundreds of other prisoners who were apprehended in exactly the same circumstances as Lindh. While Lindh faces a long criminal sentence for the two felony offenses he has acknowledged committing, none of the remaining detainees has even been charged with a crime.

Labeled "enemy combatants" by the government, these men are deemed to be beyond the reach of the justice system. Rather than facing criminal proceedings, they are being detained without trial, charges, or even access to a lawyer. Almost all of them are being held in Guantanamo Bay, Cuba, where, because the territory is technically under Cuban sovereignty, the U.S. government is able to fend off the scrutiny of the federal courts.

Lindh v. Hamdi

Given the factual circumstances, so far as they are known, the disparate treatment of the two men is puzzling. Like Lindh, Hamdi is an American citizen. (Granted, Hamdi's parents are Saudi Arabian and he has an Arab name - could it be that he just sounds more like a terrorist? Hamdi's treatment certainly confirms the wisdom of Lindh's quick decision to shed his Islamic name.) Like Lindh, Hamdi was captured last year in Afghanistan, apparently a member of the Taliban or al Qaeda military forces. Like Lindh - and unlike the other detainees captured in Afghanistan - Hamdi is being held on U.S. soil.

Indeed, Hamdi, like Lindh, is being detained within the jurisdiction of the federal court for the Eastern District of Virginia. Known as an extremely conservative district, the Eastern District is fast becoming terrorism central. In addition to the Lindh and Hamdi cases, the Eastern District is also handling the prosecution of Zacarias Moussaoui, the Moroccan-born French citizen charged in connection with the September 11 terrorist attacks.

Bowing to the media interest in its terrorism subspecialty, the Eastern District has even added a special section to its website to allow journalists and others to keep current with regard to breaking developments in the Lindh and Moussaoui prosecutions. So far, the Hamdi case has been kept off the court's list of "Notable Cases." Yet - given the government's willingness to take extreme positions and given the district court's willingness, so far, to question these positions - it is this case that may end up being by far the most important of the three.

From a Naval Base in Guantanamo to a Naval Base in Virginia

Captured in Afghanistan last November, Hamdi was brought to Guantanamo Bay with the other detainees in January. But in April, after his U.S. citizenship was discovered, Hamdi was transferred to the Norfolk Naval Base in Virginia.

In contrast to the foreign detainees held on Guantanamo, Hamdi's American citizenship makes him ineligible for prosecution before a military commission. It might have been assumed, therefore, that his transfer to the United States was simply the first step toward placing his case in the criminal justice system, following the example set in the John Walker Lindh case. Yet this did not happen. Notwithstanding his American citizenship, Hamdi was still classified as an "enemy combatant" to be held by military rather than civilian authorities.

Federal Court Proceedings

The transfer to Virginia did, however, put Hamdi more clearly within the jurisdiction of the federal courts. After Hamdi's father filed a writ of habeas corpus on his son's behalf challenging Hamdi's detention, District Judge Robert G. Doumar ordered the government to grant Hamdi access to legal counsel. The government appealed the order, however, and its implementation was deferred pending the resolution of the appeal.

On its face, the Fourth Circuit's July 12 ruling could be considered a procedural one. The court's opinion explains that the district court failed to give the government sufficient opportunity to assert its interests, instead deciding the question of Hamdi's access to counsel "without proper benefit of briefing and argument." The appellate court specifically criticizes the "peremptory nature" of the proceedings in the district court, calling for a fuller hearing of the relevant issues.

Yet the substantive basis for the court's procedural caution is obvious. The court acknowledges that in any normal case, the decision to grant access to counsel would be an easy one: "hardly a subject for appeal, much less reversal." Here, in contrast, the context of the case - involving "foreign relations and national security," as the court emphasizes - means that the government's interest in barring Hamdi's access to counsel cannot be so easily dismissed.

In an important indicator of the court's future rulings in the case, the Fourth Circuit opinion appears to accept many of the government's assertions without question. The court makes specific reference to the "global war" against terrorism, suggesting that it is unlikely to challenge the government's use of a military as opposed to a criminal law paradigm. And, in an even clearer demonstration of its views, the court states that "if Hamdi is indeed an 'enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one."

Yet, importantly, the appellate court still did not dismiss Hamdi's habeas corpus petition, an action that the government had requested. As the court noted, to dismiss the case would have meant that "any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so."

Next Steps

Last Thursday, in its most recent ruling in the proceedings, the district court ordered the government to explain why it was detaining Hamdi without charges. Specifically, the court asked the government to state against whom the U.S. is fighting in the "war" on terrorism, how we would know that the war had come to an end, and whether, given the nature of the war, Hamdi could be detained forever. It gave the government a week to present its reasons.

The court's request that the government justify its detention decision succinctly outlines the crucial issues that now face the federal judiciary, not only in the Hamdi case but also in assessing the status of the Guantanamo detainees (something that, eventually, the Supreme Court will have to do).

To summarize: Should the "war" on terrorism be deemed a real war in the military sense of the term, with all the judicial deference to political decisions that such a designation implies? If so, does the government have the power to detain "enemy combatants" without trial or access to counsel for the duration of the hostilities? And, if so, does Hamdi (and do others) properly fall within the category of enemy combatants?

The questions are weighty ones and, as the Fourth Circuit correctly observed, merit extended analysis and debate. What is crucial, if the rule of law is to survive, is that the courts follow the example of District Judge Doumar in demonstrating a willingness to ask difficult questions and make difficult choices. But it is also important that the discussion not be restricted to the courts, as this is a debate that concerns us all.

Joanne Mariner is a FindLaw columnist and human rights attorney based in New York. Her previous columns on terrorism, indefinite detention, and other human rights issues may be found in the FindLaw archive.

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