washingtonpost.com
Thursday, August 15, 2002; Page A24
AFTER A number of unnecessary twists and turns, the case of Yaser Esam Hamdi finally is approaching the critical question: What burden does the government have to shoulder before it can lock away an American citizen indefinitely without charge as an enemy combatant? Mr. Hamdi, who was born in Louisiana and then moved to Saudi Arabia, is being held without access to a lawyer at a Navy brig in Norfolk. The detention is legal, the government contends, because Mr. Hamdi is not an accused criminal entitled to the full panoply of constitutional rights, but a battlefield captive subject to detention until hostilities end. In support of this claim, it has offered a scant two-page declaration by a Defense Department official outlining the circumstances of Mr. Hamdi's capture. And it has argued that U.S. District Judge Robert Doumar should not look behind this submission in deciding whether the detention is lawful.
At a hearing this week, the judge grilled lawyers about whether the declaration is adequate to justify Mr. Hamdi's imprisonment. The 4th U.S. Circuit Court of Appeals has insisted that Judge Doumar show great deference to the military's determination and that he consider the least intrusive means of resolving Mr. Hamdi's case before resorting to more intrusive procedures. This caution is rooted in the fact that the courts are badly positioned to second-guess the president's running of a war. Generally speaking, Judge Doumar has paid the advice inadequate heed; at this week's hearing, for example, he engaged in some unnecessarily nasty sniping at the government's lawyer. But even were he showing all appropriate deference, the greater problem would remain: The government's declaration is plainly not adequate to resolve Mr. Hamdi's status.
The two pages consist entirely of assertions by a government official who does not purport to be offering firsthand information. While there is no particular reason to doubt the declaration's claims, it should be unthinkable for a judge -- even a deferential judge -- to authorize a long-term jailing on such spare allegations.
The difficult question Judge Doumar must now answer is what additional information is needed before he can make an informed decision about Mr. Hamdi's fate. At the hearing, he indicated that he might declare the declaration inadequate and offer the government a chance to give him more information or to appeal. A better approach would be to try to determine whether any facts are in dispute -- by hearing from Mr. Hamdi. If Mr. Hamdi were to admit to the government's factual claims, that would be the end of the case. If he were to contest some of them, it would allow the government to make a more targeted submission in defense of its allegations. Hearing from Mr. Hamdi necessarily would require some measure of access for his attorney -- something that Judge Doumar already has ordered twice, earning himself both times a reversal from the court of appeals. But in trying again -- perhaps using a more constrained form of access -- the judge would be on much stronger ground. The government now has had a chance to resolve the matter with its own presentation. And something more is needed. The missing element isn't too hard to figure out: Judge Doumar still has heard only one side of the story.
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