Case Against US-Born 'Enemy Combatant' Raises New Legal Questions

By Robert B. Bluey | July 7, 2008 | 8:20 PM EDT

( - Yaser Esam Hamdi, like many Taliban warriors, was captured last fall on an Afghanistan battlefield. Taken to military base in Guantanamo Bay, Cuba, he was treated no different than his fellow detainees -- until it was discovered he was born in the United States.

Hamdi's unique situation represents one of the most complex legal disputes resulting from the war on terror. At the center of the debate is Hamdi's classification as an "enemy combatant," which essentially allows the U.S. government to hold him in solitary confinement for an indefinite period of time.

When U.S. officials learned of his citizenship, the 22-year-old Hamdi, born in Louisiana but raised in Saudi Arabia, was transferred to a naval base in Norfolk, Va. A public defender, who has never met Hamdi, has challenged the enemy combatant classification and sought to restore Hamdi's rights as a U.S. citizen.

Last week U.S. government lawyers appealed a federal judge's request that required them to turn over additional information to justify Hamdi's status as an enemy combatant. The U.S. Court of Appeals for the Fourth Circuit, which has already ruled once in the case, is now considering the government's appeal.

Robert A. Levy, a senior fellow at the libertarian Cato Institute, said the Department of Defense has overstepped its bounds and must be reigned in by Congress and the federal judiciary.

"Congress authorized the use of force [against the Taliban]," Levy said. "It didn't authorize the indefinite detentions of individuals without counsel or without charges being filed. To suggest that merely because Congress passed a resolution does not justify what we've been doing to Hamdi."

Until Congress takes such action, Levy said, the executive branch does not have that power.

"We can't give the executive branch the power to make the rules, and then enforce the rules," he said. "That's not the function of the executive branch ... it's the function of the three branches of government."

The dean of Catholic University's law school, Doug Kmiec, said Hamdi's association with the Taliban and defense department reports that he was armed with an AK-47 when captured are justification to detain him, regardless of his status as a U.S. citizen.

David Rivkin Jr., a lawyer who followed the case, agreed with Kmiec and said the Supreme Court and Congress, though past actions, have equipped the executive branch with the ability to detain citizens under the enemy combatant label. He said the circumstances of Hamdi's detainment illustrate why those powers are necessary.

"Let's remember why Hamdi has been transferred to the United States and placed in a military brig," Rivkin said. "It's not in the form of criminal prosecution or community vengeance, but in war time, it's a measure that has been consistently taken to prevent an enemy combatant from returning to the enemy and to obtain intelligence."

While Hamdi's case is unique in many respects, he is not the only citizen classified as an enemy combatant. Jose Padilla was detained in May under the same label for his alleged connections to al Qaeda and plans to carry out a "dirty-bomb" attack on U.S. soil.

Still, others who have gained notoriety since the war on terror began -- John Walker Lindh, Zacharias Moussaoui and Richard Reid -- all were brought up on criminal charges. But former Justice Department attorney Lee Casey said Hamdi and Padilla should be grateful they are being held as enemy combatants and not facing criminal charges.

"As in most conflicts, the people who are detained are let go once the conflict is over," Casey said. "It is very much in their interest not to be the subject of criminal prosecution. John Walker Lindh will serve his full prison term. He would have been much better off had he been sent to Guantanamo to wait out the conflict."

Stephen A. Saltzburg, a George Washington University law professor who has studied the Hamdi case, predicted the federal judiciary would ultimately play a role in defining the meaning of "enemy combatant" and how the term is applied to U.S. citizens.

"Now that Hamdi is back in the United States and the government has put him in this special category, it's the government that has raised all the issues," he said. "If the government wants to create this new category, the courts will have a role in determining the standard for an enemy combatant."

Saltzburg said the circumstances of Hamdi's case are not what concern him. More important is how his case plays out, he said, which would likely set a precedent for the future designation of enemy combatants.

"It's not Hamdi that we are worried about; it's everybody else," Saltzburg said. "It's not wanting to recognize a term that gives the executive branch the power to point the finger at anybody and say, 'You support the Taliban, the court cannot review it and we can lock you up for as long as we think necessary.' "

Even though Levy expressed concern about the executive branch's power, he said it was not a reflection on the Bush administration. He said the good intentions of this administration, however, might lead to bad precedent for future leaders.

"For those of you who are comfortable with Bush having this power because he is an honorable man and has due respect for the Constitution, I don't claim otherwise," Levy said. "But I would not have been comfortable with his predecessor having this power and I frankly would not be comfortable with his successor having this power."

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