washingtonpost.com
Tuesday, August 20, 2002; Page A12
FEDERAL district judge Robert Doumar was correct on Friday to rule that a two-page declaration filed by the government is inadequate as a basis to imprison -- indefinitely, without charge or access to counsel -- Yaser Esam Hamdi, who is likely an American citizen. Mr. Hamdi is American-born, Saudi-raised and currently being held in a Navy brig as a Taliban fighter. The government initially argued that the courts had no power to review its determination that he is an "enemy combatant." Now it is contending that Judge Doumar should consult no more than a brief statement by a Defense Department official named Michael Mobbs, in which the government sets out a cursory account of Mr. Hamdi's actions. We have no reason to doubt the government's factual claims. But for a judge to allow a detention on such a meager showing would be to forswear any meaningful review.
But having correctly determined that he needed more information, Judge Doumar then ordered up the wrong information. The judge reinstated an earlier demand that the government turn over for his private review notes from interviews with Mr. Hamdi, lists of people who interrogated him, copies of statements by members of the Northern Alliance regarding the circumstances of his surrender to that armed force, and similarly sensitive material. The idea is to assess the claims of the Mobbs declaration against the primary source materials on which it was based. But this from-scratch review of the government's designation hardly seems the sort of deference to which the military's judgment is entitled under the law. The 4th Circuit Court of Appeals, in an earlier appeal in this case, insisted that the judiciary should not be in the position of micromanaging the executive branch's conduct of a war. Judge Doumar's demand for this material creates the very situation the appeals court aimed to avert.
More fundamentally, Judge Doumar's procedure does not address the core civil liberties problem here: the absence of any opportunity for the accused to defend himself. Although the government is contesting the order, suppose that it supplied the material Judge Doumar has requested, and that this secret evidence satisfied him that the Mobbs declaration was factually accurate and that Mr. Hamdi was indeed an enemy fighter subject to detention. Would Judge Doumar then declare the detention lawful without even knowing whether Mr. Hamdi contests the basic facts? There has to be some stopgap against a great misunderstanding. Judge Doumar's approach seems to leave none.
The lack of deference and the potential unfairness of the judge's procedure could both be ameliorated if Judge Doumar simply heard from Mr. Hamdi. Judge Doumar has twice ordered that Mr. Hamdi be allowed to meet with his attorney, and he has been reversed both times -- so he may be skittish about trying again. But access to counsel now is critical for any reasonable adjudication of the case. And it is certainly less intrusive at this stage than would be the judge's broad-ranging review of military documents. After all, if Mr. Hamdi admits to the truth of the Mobbs declaration, there will be no need to check its accuracy. If he contests aspects of it, the court's factual inquiry could be narrowed to points in dispute. The idea here is to craft a process that ensures basic fairness while hampering the military minimally. The fundamental principle remains: The accused has a right to be heard.
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