By Tom Jackman
Washington Post Staff Writer
Thursday, January 9, 2003; Page A01

The government can jail a U.S. citizen captured overseas indefinitely when the military declares him an "enemy combatant," a federal appeals court said yesterday, ruling that a Louisiana-born man has been held properly in a Navy brig without a lawyer or other constitutional rights.

The decision by the U.S. Court of Appeals for the 4th Circuit in the case of Yaser Esam Hamdi, who was captured with Taliban forces in Afghanistan, rejected the Justice Department's argument that enemy combatants have no right to a judicial review of their detention and status. But because the Constitution affords the executive branch the responsibility to wage war, the courts must yield to the military in making such determinations, the three-judge panel said.

"Separation of powers takes on special significance when the nation itself comes under attack," the appeals court ruled. "Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one."

The ruling was not an overwhelming victory for the government. While broad in its interpretation of the separation of powers and the judiciary's role in the conduct of war, the decision was narrow about whom it applies to. The decision covers only Americans captured on a battlefield overseas and not citizens arrested in the United States. So it would not, for example, apply to Jose Padilla, an American declared an enemy combatant for allegedly plotting to detonate a dirty bomb.

The court did not specifically address whether enemy combatants have a right to a lawyer. But it did not reject the government's denial of Hamdi's access to counsel and said he was being held lawfully, and experts said the ruling effectively bars lawyers from the process.

Attorney General John D. Ashcroft called the 4th Circuit's ruling "an important victory for the president's ability to protect the American people in times of war."

Federal Public Defender Frank W. Dunham Jr., Hamdi's lawyer, said that the case is "of national significance" and that it goes to the core of the roles of the branches of government during wartime. "The Supreme Court should be given an opportunity to address this issue if it wants to," he said.

Dunham added that the ruling holds that if the executive branch presents its reasons for an enemy detention, "you're not allowed to question those reasons. No other facts can be presented to the court," and therefore meeting with a lawyer would be unnecessary, Dunham said.

While fighting with Taliban troops in Afghanistan, Hamdi was captured by Northern Alliance forces in November 2001 and ultimately placed in the Navy brig in Norfolk, where he remains. Dunham, seeing media reports of Hamdi's arrival in Virginia, made attempts to see Hamdi last spring. The case of another American captured in Afghanistan, John Walker Lindh, was being prosecuted in criminal court in Alexandria, and Dunham anticipated that he might soon be representing Hamdi.

"I didn't want to get into a war of separation of powers," Dunham said. "I didn't see that as a consequence of the case when it started."

Dunham's efforts to meet with Hamdi were rebuffed, so he turned to the federal court in Norfolk, where he found a sympathetic ear in U.S. District Judge Robert G. Doumar. Doumar twice ordered the military to grant Dunham access to Hamdi. But the government appealed to the 4th Circuit in Richmond, and twice it stayed Doumar's orders.

To justify its detention of Hamdi, the government issued a two-page declaration of facts signed by Defense Department Special Adviser Michael Mobbs. The Mobbs declaration said that Hamdi traveled to Afghanistan in July or August 2001, joined a Taliban military unit and received training. In late 2001, Hamdi's unit surrendered to the Northern Alliance, and Mobbs said Hamdi had been carrying a rifle and acknowledged loyalty to the Taliban.

When Doumar again granted Dunham access to Hamdi, the government appealed. This time, the 4th Circuit sent the case back to Doumar with instructions to reconsider the Mobbs declaration with "great deference" to the government.

Instead, Doumar denounced the Mobbs declaration as insufficient. He demanded extensive documentation from the military about Hamdi's capture, his statements and his whereabouts. "If the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi," Doumar wrote, "this Court would be acting as little more than a rubber stamp."

The government appealed again.

In his oral argument, Deputy Solicitor General Paul D. Clement told the three-judge panel, "It's important to give discretion to the executive branch to handle detainees as it sees fit."

Dunham responded that Hamdi should at least be given a chance to see the Mobbs declaration. "He hasn't claimed anything," Dunham argued. "Nobody knows what his version of the facts might be."

In fact, Hamdi's father sent a letter to Congress saying that Hamdi was in Afghanistan doing relief work, and was trapped there by the fighting. "He was caught up in a dragnet of non-Afghans," Esam F. Hamdi wrote.

But rather than approach the singular issue of whether Hamdi was entitled to a lawyer, the appeals court considered the question of whether the Mobbs declaration, by itself, was sufficient to hold Hamdi indefinitely.

When a prisoner "has been designated an enemy combatant, and it is undisputed that he was captured in a zone of active combat operations abroad, further judicial inquiry is unwarranted when the government has responded to the petition by setting forth factual assertions which would establish a legally valid basis for the petitioner's detention," according to the opinion, written by Chief Judge J. Harvie Wilkinson III and Circuit Court Judges William W. Wilkins Jr. and William B. Traxler Jr.

Much of the 54-page decision focuses on the separation of powers in the Constitution and noted that the document "does not specifically contemplate any role for courts in the conduct of war. . . . Indeed, the courts are ill-positioned to police the military's distinction between those in the arena of combat who should be detained and those who should not."

Several experts said the court carefully limited its ruling to Americans captured in overseas battles. Neal R. Sonnett, a Miami lawyer who chaired the American Bar Association's Task Force on Treatment of Enemy Combatants, said the ruling "effectively places a stamp of approval on the government's conduct," though limiting it to Hamdi's case. "Nobody expects the government to prove its case beyond a reasonable doubt," Sonnett said, "but there has to be some fundamental fairness, and an enemy combatant has to have the right to say, 'I'm not an enemy combatant.' "

Stephen Dycus, a national security law expert at Vermont Law School, called the ruling troubling. "It gives the president the last word," he said. "And despite some lip service about the courts preserving some role for themselves, it really doesn't play that role. . . . For all we know, Hamdi was working for OxFam or Catholic Charities. He's not being given the right to refute the charges against him."

© 2003 The Washington Post Company