Fourth Circuit Court of Appeals to hear arguments on Monday, October 28(Richmond, VA) The National ACLU and ACLU of Virginia today filed a friend-of-the- court brief in the Fourth Circuit Court of Appeals on behalf of Yaser Hamdi. Hamdi, an American-born alleged member of the Taliban, was captured in Afghanistan last November and has been held incommunicado in a military brig in Norfolk for the last six months. Labeled and “enemy combatant” by the Department of Justice, he has not been given access to legal counsel or the court system and is serving an indefinite sentence.
The Department of Justice asserts that it falls with the President’s core war powers to decide who is an enemy combatant and how long to detain such persons.
In July, a federal district court judge in Norfolk ruled that the government had not provided sufficient evidence to show that Hamdi was an enemy combatant. The Justice Department appealed that decision to the Fourth Circuit of Appeals, which will hear arguments in the case in Richmond on Monday.
In its brief, the ACLU argues that the Fourth Circuit must do more than decide whether or not the government has demonstrated that Hamdi is an enemy combatant-- it must also decide if he is a lawful or unlawful enemy combatant. A lawful enemy combatant must be treated as a prisoner of war in accordance with the Geneva Convention, which specifies conditions of incarceration and requires release of the prisoner once the war is over. An unlawful enemy combatant must be accused of a crime, provided with legal representation, and tried in a court of law.
“There is absolutely no precedent in American history allowing the government to detain someone indefinitely without charges or a trial,” said ACLU of Virginia executive director Kent Willis. “If there is evidence to show that Mr. Hamdi is a prisoner of war, then treat him accordingly. If there is a basis for a criminal prosecution, then proceed with that.”
“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 the Fifth Amendment guarantee of due process,” added Willis.
A copy of the ACLU’s amicus brief is available electronically by contacting the ACLU of Virginia at email@example.com
Contacts: ACLU of Virginia (804)644-8022 Kent Willis, Executive Director, or Rebecca K. Glenberg, Esq., Legal Director