Editorial:
Sunday, August 11, 2002; Page B06
CONSIDERING what is known about Yaser Esam Hamdi, it is easy to lose sight of why his case is so important. The government claims that Mr. Hamdi -- the Louisiana-born, Saudi-raised and likely American citizen who is currently being held indefinitely without charge or access to counsel in a military brig in Norfolk -- is an enemy combatant. He was, the government says, captured when the Taliban unit to which he was attached surrendered to the Northern Alliance, and he has allegedly admitted to government investigators that he went to Afghanistan to train with and, if necessary, fight for the Taliban. His father's claim, made in a letter last week to members of Congress, that his son went as a relief worker is being greeted with skepticism. Mr. Hamdi is, in short, hardly a sympathetic character. Many Americans will be tempted to conclude that if people like him cannot be locked up easily, there must be some problem with the rules.
A remarkable story in Thursday's Wall Street Journal shows why this instinct may be wrong and why it is essential that the government be required to justify persuasively "enemy combatant" designations. The White House, the Journal reported, has become dismayed by the legal circus of the Zacarias Moussaoui trial and the strong defense put forth for John Walker Lindh. In reaction, it has determined that, rather than pursue civilian trials, the government should -- assuming it prevails in the Hamdi and Jose Padilla cases -- use enemy combatant detentions instead. A wing of a navy brig in Goose Creek, S.C., where Mr. Padilla -- held in connection with an alleged dirty bomb plot -- now resides, is available for Americans subject to military detentions. And a high-level committee -- composed of the attorney general, the defense secretary and the CIA director -- is being contemplated to decide which American citizens should be locked up with no rights. The White House did not respond to our requests for clarification Friday, nor did it comment upon the accuracy of the Journal's story.
The government is right to worry about the chaos the Moussaoui trial has produced, which has been both dangerous and embarrassing. And few doubt that the military has the authority to detain enemy combatants -- a long-standing feature of the laws of war. But the idea of using enemy combatant designations of citizens as a relatively routine means of handling terrorism cases is appalling. A cardinal protection of liberty in this country is the requirement that the government justify deprivations of freedom. Yet the emerging hallmark of the enemy combatant cases is the unwillingness of the government to do precisely that. In Mr. Hamdi's case, the Justice Department initially argued that its designation was unreviewable by any court. Even now, after an appeals court cast doubt on that position, the government contends that the courts should not look beyond the sketchiest of evidentiary statements it has offered in justifying its view of Mr. Hamdi. Creating a regime under which these detentions would be a norm, rather than an extraordinary exception, would be extremely dangerous.
For this reason, it is critical that judges remember how the doctrine they are creating could be used against people other than the ones whose cases they are currently seeing. The government's case against Mr. Hamdi may be solid. But if it is allowed to detain him without some procedure that requires a persuasive showing, it will create a rule that allows Americans to be exempted from the protections of the Bill of Rights on the strength of a two-page statement the government condescends to present in court. A goodly number of people in this country have controversial political beliefs or associate with people who might turn out to be terrorists. Whatever process is used to lock up Americans must be capable of distinguishing such people from actual terrorists and soldiers in the war against America.
© 2002 The Washington Post Company