-Caveat Lector- June 26, 2002
Public Defender Denied for Suspected American Taliban By KATHARINE Q. SEELYE WASHINGTON, June 26 — In a closely watched case arising from the Sept. 11 terrorist attacks and pitting civil liberties against national security, a federal appeals court ruled today that a public defender cannot represent an American citizen who is suspected of being a Taliban fighter. The United States Court of Appeals for the Fourth Circuit, acting only a day after hearing the case of the American, Yaser Esam Hamdi, did not rule explicitly on the larger issue of whether Mr. Hamdi has the right to a lawyer and whether he can be held indefinitely without being charged with anything or represented by a lawyer. But the appeals court did seem to clear the way for Mr. Hamdi's father to enter the case, and perhaps arrange representation for his son. The appeals court decided that a federal public defender cannot represent Mr. Hamdi because the lawyer has no official relationship with him. Frank Dunham, a federal public defender in Virginia, had filed a petition challenging the detention of Mr. Hamdi, whom the government has classified as an enemy combatant. Mr. Dunham was granted "next friend" status by a federal district judge, allowing him to represent Mr. Hamdi, but the appeals court set aside that ruling today. The appeals court, which sits in Richmond, Va., cited statutes that a person suing for the ability to represent a defendant had to demonstrate "a sufficient personal stake in the outcome of a dispute." On the same grounds, the court also rejected an attempt by a private lawyer in New Jersey, Christian Peregrim, to represent Mr. Hamdi. The appeals court did state that Mr. Hamdi's father, Esam Fouad Hamdi, could be granted "next friend" status, although it was not immediately clear by what process the elder Hamdi could arrange representation. Some of the issues raised so far — how far can the government go in wartime to protect the country, how much can it curtail civil liberties in the name of security, and for how long — seem likely to be argued by historians as well as judges. The younger Mr. Hamdi, was born in Louisiana 21 years ago, raised in Saudi Arabia and captured on the battlefield in Afghanistan. Mr. Hamdi was sent to Guantánamo Bay, Cuba, until officials discovered he was born in the United States, and then moved him to the naval brig in Norfolk, Va. He has been held there since April 5, not charged with any crime or allowed to see a lawyer, although a district court appointed a public defender to represent him. In oral arguments on Tuesday in Richmond, Chief Judge J. Harvie Wilkinson 3d of the appeals court appeared incredulous at Mr. Hamdi's lawyer's assertion that his client — captured during battle and designated an enemy combatant — had any constitutional rights. "What is unconstitutional about the government detaining that person and getting from that individual all the intelligence that might later save American lives?" Judge Wilkinson asked Geremy Kamens, an assistant federal public defender helping to represent Mr. Hamdi. Mr. Kamens said the Constitution prohibited the indefinite detention of an American citizen, but the judge was quick to interrupt. Was he suggesting that the government could not detain a citizen "who has taken up arms against America?" the judge asked in a voice that suggested he could not believe what he was hearing. Mr. Kamens argued that there was no evidence that Mr. Hamdi was actually an enemy combatant, but the judge came back at him: Suppose an inquiry established that Mr. Hamdi was an enemy combatant and fought on the side of the Taliban and Al Qaeda against American forces, the judge said. "What is unconstitutional about the detention of that individual and trying to get intelligence from that individual over a period of time, during the course of hostilities, that would save American lives?" the judge asked. He added that he knew of no previous cases that said it was wrong to interrogate an enemy combatant who had been captured on the battlefield. "This has been done in every war that I know of," the judge said. The sharp exchange seemed a preview of an argument likely to reach the Supreme Court in an escalating battle between the rights of American citizens and the power of the president to detain and interrogate enemy combatants while hostilities are continuing. Judge Wilkinson and two colleagues were hearing an appeal by the government of a lower court ruling that ordered the Navy to give Mr. Hamdi unfettered access to the public defender. The hearing was conducted by teleconference, because the judges were dispersed. It was piped through speakers into the federal courthouse in Richmond, where reporters listened in. The text of today's ruling can be read on the Fourth Circuit's web site: www.ca4.uscourts.gov. The government argued in papers filed last week that the lower court judge, Judge Robert G. Doumar of Federal District Court, was trying to usurp the president's authority in a time of war and had acted improperly in providing Mr. Hamdi a lawyer before allowing the government to make its case. The government's case was argued on Tuesday by Paul Clement, deputy solicitor general, who said that the courts should not second-guess the president's decision to hold Mr. Hamdi as an enemy combatant. The judiciary "can answer legal questions," Mr. Clement said, but further interference would not be "terribly helpful." Judge Wilkinson, who asked to see the president's determination of Mr. Hamdi's status, which has not been made public, said the case posed serious separation-of-powers issues. But he was far more emphatic in his grilling of and declarations to the public defender. He said the vigorous argument "underscores one of my basic problems with this case," which, he said, is that it poses a number of difficult questions and the lower court appears not to have given them proper attention. "How in the world could the district court have proceeded to decide all these questions and potentially pre-empt them by appointing counsel without even giving the government a chance to be heard?" Judge Wilkinson asked. "That's what I don't understand." Mr. Kamens said that the district court's appointment of a lawyer had nothing to do with the legality of Mr. Hamdi's detention, but Judge Wilkinson said that the appointment of counsel was very significant. "If counsel is appointed," the judge said, "we are deciding, for starters, that someone who may well be an enemy combatant has a right to counsel, number one. That's a major issue. I don't know, for example, how counsel can be separated from access or indeed from the other rights in the criminal justice system. I don't know how you can appoint counsel without throwing into jeopardy the government's intelligence-gathering operation." The government said, and the judge agreed, that intelligence-gathering could be disrupted because the introduction of a third party could break the atmosphere of trust that the government was trying to establish with the prisoner, particularly if the lawyer urged the prisoner to assert his rights against self-incrimination. Judge Wilkinson said the district judge's appointment of counsel had already "decided four or five mega issues without even giving the other side the chance to present its case." "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator." -GW Bush during a photo-op with Congressional leaders on 12/18/2000. As broadcast on CNN and available in transcript on their website http://www.cnn.com/TRANSCRIPTS/0012/18/nd.01.html Steve Wingate, Webmaster ANOMALOUS IMAGES AND UFO FILES http://www.anomalous-images.com <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! These are sordid matters and 'conspiracy theory'—with its many half-truths, mis- directions and outright frauds—is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. That being said, CTRLgives no endorsement to the validity of posts, and always suggests to readers; be wary of what you read. CTRL gives no credence to Holocaust denial and nazi's need not apply. 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