U.S. citizen picked up in Afghanistan in 2001 was held in the Norfolk Naval brig for more than a year and is still incarcerated.In a friend-of-the-court brief filed with the U.S. Supreme Court today, the American Civil Liberties Union, the ACLU of Virginia, and other organizations urged the Justices to reject the government’s argument that it may detain U.S. citizen Yaser Esam Hamdi in a military jail without charges or trial and without meaningful access to a lawyer.
Hamdi is allegedly a "battlefield detainee" who fought for the Taliban regime in Afghanistan. Northern Alliance forces in Afghanistan apprehended him during the military conflict in the fall of 2001. Hamdi was later transferred to United States military custody and then transferred, along with other prisoners, to a naval base in Guantánamo Bay, Cuba. When Hamdi’s American citizenship was confirmed, he was removed from the Guantánamo Bay facility and transferred to a military brig in Norfolk were he remained for more than a year before being transferred to a brig in Charleston, South Carolina.
In summer 2002, a Norfolk federal court judge ordered the U.S. Department of Justice to make available to the court the information on which it based its decision to detain Hamdi. The Justice Department refused and appealed the case. In a sweeping opinion, the Fourth Court of Appeals in Richmond ruled that in times of war the President should be given board authority to detain so-called enemy combatants without revealing the details justifying the detention and without bringing charges or providing the detainee with legal counsel.
“The scope of the government’s position is unprecedented. Arbitrary executive detention has been seen as inconsistent with the rule of law since at least the Magna Carta," said ACLU Legal Director Steven R. Shapiro. "There simply is no legal or constitutional basis for allowing the government to detain Hamdi indefinitely based solely on the President’s unilateral decision."
At issue is the President’s claim of authority to designate an American citizen as an "enemy combatant" and then to detain him indefinitely in a military prison without any meaningful opportunity for judicial review. Two years after his initial confinement, Hamdi has still never had a chance to present his side of the story - and never will, if the government prevails.
“The United States government does not, and should not, have the power to unilaterally invent a new category of detainee, the so-called enemy combatant, who falls entirely outside both the Fifth Amendment guarantee of due process and the Geneva Convention’s protocol for prisoners of war, ” said ACLU of Virginia executive director Kent Willis.
The ACLU brief, filed along with the American Jewish Committee, Trial Lawyers for Public Justice and the Union for Reform Judaism, argues that the President’s action has never been authorized by Congress, violates due process, and is inconsistent with the Geneva Conventions.
If the President lacks authority to designate American citizens as "enemy combatants," Hamdi must either be released or charged with a crime, the groups said in their brief. If the President has the authority he claims, Hamdi is still entitled to meet with his lawyer in private and challenge the basis for the government’s designation. Finally, under the Geneva Conventions, even "enemy combatants" must be treated as prisoners of war, something the government has steadfastly refused to do.
Hamdi’s case will likely be argued in April with the case of Jose Padilla, which the Justices accepted for review last Friday. Those two cases, as well as a challenge to the government’s indefinite detention of foreign-born suspects held at a military prison camp in Guantánamo Bay, Cuba, may bring some resolution to the civil liberties controversies swirling around the Administration's response to 9/11.
A copy of the ACLU brief is available by contacting the ACLU of Virginia.
Contact: Kent Willis, Executive Director, ACLU of Virginia, 804-644-8022