The New York Times The New York Times National October 28, 2002  

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Court to Hear Arguments in Groundbreaking Case

By KATHARINE Q. SEELYE

WASHINGTON, Oct. 27 — Yasser Esam Hamdi, an American-born Saudi Arabian who was captured on the battlefield in Afghanistan, has been in solitary confinement in Virginia for more than six months. Sitting incommunicado in his windowless cell, he has inadvertently emerged as a central figure in a classic legal clash between national security and civil liberties.

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The Bush administration considers Mr. Hamdi, 22, to be an "enemy combatant" and maintains that it is entirely within its rights to hold war captives, including American-born ones like him, until hostilities cease.

In the case of the war against terrorism, this could be indefinitely. In the administration's view, enemy combatants are threats to the nation's security and can be detained without due process both to pry information from them and to keep them from rejoining the enemy.

Even as American citizens, the administration argues, they have no right to judicial review of their status and may be held without charges, without bail and without access to a lawyer. This gives them fewer rights than ordinary criminal defendants or even foreigners who might face military tribunals.

Several civil liberties groups, a coalition of law professors, a task force from the American Bar Association and at least one federal judge say this is an improper assertion of executive power and have opposed the Bush administration on Mr. Hamdi's behalf. At a minimum, they say, he has a right to a lawyer, and ideally, a court should review his status.

On Monday, a three-judge panel of the Court of Appeals for the Fourth Circuit will hear arguments over the legality of his detention.

Mr. Hamdi's case appears to be the first in modern American jurisprudence in which an American citizen has been indefinitely detained without charges and without access to a lawyer. As such, it is emerging as the test case for whether the courts, and possibly the United States Supreme Court, will allow such detentions.

The answer could well determine whether the United States detains others under similar circumstances, and it could influence how the country fights terrorism.

The only two American citizens being held without charges are Mr. Hamdi and Jose Padilla, the so-called dirty bomb suspect, who is in a military brig in South Carolina. But as the fight against an amorphous worldwide terrorist network stretches into the future, the administration is clearly expecting more American captives and has discussed plans for a military detention camp for them, a sort of stateside Guantánamo Bay.

Because most Americans look back with shame at the internment of Japanese-Americans in World War II, legal experts argue that the Bush administration would surely want the imprimatur of a fresh Supreme Court ruling before creating a military detention camp of Americans considered enemy combatants.

"We have a lot of precedent for how things operate under the laws of war, but each conflict is unique," said Lee Casey, an expert in international law and a former legal official in the Reagan and first Bush administrations. "I think if would be good for everyone if we had guidance from the court."

Mr. Hamdi, or Mr. Padilla, could provide it. Analysts say the case of Mr. Padilla, who was detained in Chicago, not on a foreign battlefield, is more complex and might provide the court a chance for a broader ruling. But Mr. Hamdi's case is farther along in the pipeline.

Frank W. Dunham Jr., the federal public defender who was assigned to represent Mr. Hamdi but has been blocked by the government from meeting or speaking with him, argued in court papers that if the judges at Monday's hearing sided with the government, they would be endangering "fundamental constitutional protections guaranteed to every citizen" and creating "a vast power to imprison American citizens almost without review by the courts."

The government calls that argument overblown.

"Hamdi is by no stretch of the imagination an everyday American," Paul J. McNulty, the United States attorney in Alexandria, Va., and Paul D. Clement, the deputy solicitor general, wrote in court papers filed last week. "He surrendered with an enemy unit, armed with a military-style assault rifle, on a foreign battlefield. The Supreme Court long ago held that such an individual, even if he can establish American citizenship by birth or other means, is subject to capture and detention by the military during the conflict."

Continued
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Judge Suspends Proceedings In Standoff on War Prisoner  (August 8, 2002)  $

U.S. Fails To Produce Documents On Prisoner  (August 7, 2002)  $

A NATION CHALLENGED: PRISONERS; Believed to Be a U.S. Citizen, Detainee Is Jailed in Virginia  (April 6, 2002)  $

HealthSouth Suspends a Plan To Spin Off Surgery Centers  (October 17, 2002)  $



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