Hamdi Hung Out

A federal appeals court has just ruled that Yaser Esam Hamdi cannot be represented by a public defender because he is an enemy combatant. This sustains the Bush adminstration's contention that that Hamdi, a US citizen, should have no access to the justice system.

But it still isn't clear exactly why Hamdi is an enemy combatant, other than the government's say so. It's the kind of thing, oh, a court might need to decide.

Comments

[Thomas]

Next thing you know, the government will start sending troops to Afghanistan and shooting people carrying weapons--without any process given to the opposition whatsoever.

What'll be left of our American freedoms then?

[Steve]

To be intellectually honest, I'd say this is a bad thing. If the guys a US citizen, he is afforded Constitutional rights, whether he's an enemy combatant or not. Yup. Got a REAL problem with this one.

[Annoying Old Guy]

Well, according to Eugene Volokh the court record does not dispute that Hamdi went to Afghanistan to join the Taliban, that he was on the field of battle for the Taliban and that he had a weapon. Apparently what was disputed is whether he actually fired his weapon. Are you claiming that as long as he doesn't actually pull the trigger, he's not an enemy combatant?

If you're going to get hysterical about cases like this, you're simply going to convince the American public that the Constitution is a barrier to security. I'm not going to lose sleep because US citizens who take up arms against their own nation in foreign battles can be detained as POWs.

[Dan]

But it still isn't clear exactly why Hamdi is an enemy combatant, other than the government's say so.

Because even his lawyers agree he was an armed member of the Taliban during the time that regime was at war with the United States? Just a guess.

And the courts DID decide it. Three times so far, in Hamdi's case.

[Ken]

Maybe he should just be hanged as a traitor?

[Casey Tompkins]

Jeff, when I first read your note about Hamdi I thought it was another instance of what happened to Mr. Farahani (Jesse Walker's post).

Now, if I understand this, Yaser Hamdi was captured, in Afghanistan, fighting for the Taliban, yes?

If that is the case, I don't see your point. You say that it isn't exactly clear why this man is considered an enemy combatant. How you would you define an enemy combatant then? Besides something like: "someone who joined the other side to fight?"

From what I've read he is, at best, an EPW (Enemy Prisonor of War).

Are there legal precedents on the handling of American citizens that were captured fighting for one of our enemies? I know there were instances of both citizens and naturalized aliens in the German and Japanese armed forces in World War Two, but I don't know if they were accorded any different rights than those defined by the Geneva Conventions for prisoners of war.

In what way can you justify the claim that Hamdi is in fact not an enemy combatant, considering the circumstances of his capture?

I am very interested to see how you address the points raised in these responses.

[Anonymous]

More details about this were mentioned 3 days ago (http://www.reason.com/hitandrun/week_2003_01_05.shtml#000435) which linked to a Village Voice article (http://www.villagevoice.com/issues/0302/hentoff.php) where federal judge Robert Doumar is quoted to have stated:
"It does not say where or by whom he received weapons training or the nature and content thereof. Indeed, a close inspection of the declaration reveals that [it] never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban. Without access to the screening criteria actually used by the government in its classification decision, this Court is unable to determine whether the government has paid adequate consideration to due process rights to which Hamdi is entitled under his present detention."

So, Casey and Annoying Old Guy, it appears that even the government won't say he was captured while fighting for the Taliban. All they're saying is that he was affiliated with them, without defining "affiliated".

Dan, he doesn't get lawyers! That's the point. He's being detained, for who knows how much longer, with no trial or representation.

[Jeff Nelson]

Reason and the The Village Voice also conveniently forget to mention that Prisoners of War are offered rights under the Geneva Convention. Those rights may be better for Hamdi than his constitutional rights accorded his (debatable) U.S. citizenship. For instance, John Walker Lindh was in danger of being executed for treason and ended up with guaranteed imprisonment for 17 years. How many think he's better off than he would be if treated as nothing more than a POW?

[Anonymous]

Prisoners of War are one thing. "Unlawful combatants" are another.

[Doug Levene]

The 4th Circuit clearly got it right. What would you have done with American citizens captured bearing arms on the German side during WWII? Would you have appointed lawyers for them? Of course not. I do not see even the remotest threat to civil liberties from this case, which, as noted above, is limited to Americans captured in a war zone bearing arms in the service of the enemy. If you join a foreign army and are captured bearing arms against the U.S., tough luck, you should be glad you're still alive.

[Vidya]

Does Jeff A. Taylor read these reader posts so he can understand exactly why Hamdi is an enemy combatant?

The biggest problem with Libertarians (I am assuming Jeff is one) is their aversion to defend themselves. On an organizational level the party (LP) states they are for open borders - allowing people to cross borders at will, etc.

At what point should the security of the individual, a state take precedence over the rights of the perps? It is a judge that ruled for the government, for heaven's sake, not a military tribunal! Thanks to many readers who posted excellent responses and information above.

[Casey Tompkins]

Close, Vidya, but not in the gold I think.

At least one commentator has said that Libertarians are not philosophically equipped to deal with terrorism.

Perhaps this is because Libertarianism subsumes the rule of law (or, perhaps, rationality) over the relations amongst humanity.

Terrorism, on the other hand, is the explicit rejection of all law. The Libertarian creed is then by definition incapable of dealing with an system that rejects their approach as a matter of course.

Please do not misunderstand me. As an intranational creed, I find much of Libertarianism very attractive. To put it simply: "keep your hands to your damn self!"

This, alas, does not translate well to the international arena absent any legitimate enforcing power or authority.

[Jon H]

Casey wrote:
"So how else do you explain a man captured during a war with a gun?"

Well, remember, who was he there to fight? Probably not the US. The Taliban had a prior,
ongoing conflict against the Northern Alliance
going on. During this period, the US was
nominally friendly with the Taliban, or
at least not in any kind of conflict.

Then, 9/11 happened, and the Taliban became
our enemy. So this guy Hamdi is stuck out
in the boonies. Probably not a lot of good
options. Saying "Whoops, I gotta go now, I'm
American" would most likely get him killed
ASAP. They'd probably consider it desertion.
So it would be sensible to take a wait and
see approach, and wait for an opportunity.

I mean, what's he going to do? Surrender
to a B-52? It would be rather difficult to
turn the situation around without ending
up dead.

And as for having a weapon, I suspect that
having a weapon is probably a Really Good Idea
for anyone in Afghanistan, especially at the
time, given the state of the country. It's
like Americans with Palm devices.

[Jon H]

Doug Levene wrote:
"What would you have done with American citizens captured bearing arms on the German side during WWII?"

When did they join? Before or after the Germans declared war against the US?

It seems to me that joining the group prior
to hostilities is a very different thing than
joining specifically to fight the US.

I haven't seen any reasonable scenarios for
how a person could have gotten out of
the Taliban after 9/11. A local might be
able to escape, but an American? Hamdi
might have had an easier time of it than
Walker, but neither is likely to have had
an easy time of it.

Frankly, I bet that anyone posting here,
if caught in a similar situation, would
think *long* and hard about what to do even
assuming they didn't want to fight the US.
Trekking across the mine-laden terrain of Afghanistan is probably not the first choice.

[Paul Stoufflet]

While I think it is always correct to be concerned about the slippery slope, Hamdi was carrying a weapon in the employ of the Taliban at a time when the Taliban was engaged in open combat against the US Army. I believe Hamdi is lucky to be treated as a prisoner of war, subject to detention until cessation of hostilities; rather than a traitor, and shot, or an enemy soldier, and shot; or a spy (claiming American citizenship), and hanged. I am not too concerned that I could wind up in the same situation as Mr. Hamdi, while living here in Austin, Texas and working in a medical office every day.

[Casey Tompkins]

So the evidence is that a judge wants _specifics_ such as just exactly who trained him, and what for. That - apparently - Hamdi was in Afghanistan with weapon in hand for a purpose unrelated to the Taliban. And that this judge interpreted the "Mobbs document" to make his claim the government made no claims, etc., after "close inspection" without the Voice providing any links to that document for anyone to inspect on their own.

The Voice implies the government is untrustworthy, but uncritically accepts Judge Doumar's interpretation of the "Mobbs document", including his absurdly specific requirements regarding "affiliation". Apparently the Judge expects people to carry "Genuine Taliban Membership Certificates" in their wallets, and that absent that one cannot determine "level of affiliation."

I think I can make it easy on the Judge, and the Village Voice.

From what I can find out, Hamdi _was_ captured _in_ Afghanistan. And at the time of his capture he _was_ armed.

These are facts not subject to dispute.

What is under dispute is Hamdi's "affliation" with the Taliban, and the "degree" of that "affiliation".

Now, this is just me, but somehow I seriously doubt that Hamdi was in Afghanistan for a relaxing vacation. I'm also sure that - absent evidence - that he was not a member of the Coalition forces. Not to mention that as a native US citizen he was not captured in his own back yard...

So how else do you explain a man captured during a war with a gun? Shopping for groceries? Research for a Master's thesis?

Well, we could check out the link that Annoying Old Guy provided to Volokh's blog. Which contains a link (http://pacer.ca4.uscourts.gov/opinion.pdf/027338.P.pdf) to the 4th Circuit Court's decision on the Hamdi case. Which decision quotes the petition filed by Hamdi's father:
"The petition alleged that Hamdi is a citizen of the United States who was residing in Afghanistan when he was seized by the United States government.", and that the US "gained access to individuals held by various factions of the Northern Alliance" and that "Hamdi was captured or transferred to the custody of the United States in the Fall of 2001."

The decision goes on to quote the "Mobbs document" so disparaged by the honorable Judge Doumar. I won't quote any more of it, but it is fairly evident that the honorable Judge has strained his interpretation to the limit in order to be able to question the status of Hamdi in Afghanistan.

Unless, of course, you accept Doumar's (and apparently the Voice's) position that the government is flat out lying.

[James Milks]

From the latest actual decision:

"Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution."

Notice the term "undisputed." He had his day (days) in court, and the court found that his capture in a combat zone is proof enough that the executive branch can reasonably classify him as an enemy combatant. You're being a little hysterical over this.

The constitutional right is to a fair trial is not granted only to citizens of the U.S. Any foreign national charged with a crime in the United States is given a trial. Should all foreign nationals captured in combat zones also be given a trial? The answer is no.

Suppose 100,000 captured Iraqis all claim to be U.S. citizens. Do we appoint 100,000 public defenders and hold trials for them to determine if they are telling the truth? Captured enemy combatants must be left to the discretion of the commander in chief.

[Heintz Adam]

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DATE: 05/20/2004 08:48:09
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