Hearing Impairment

Suspected terrorists should be able to challenge their detention


You have no right to remain silent. Anything you say may be used against you in a court of law. Then again, it may not be, because you may never get a trial. You have no right to speak with an attorney, but we're going to let you have one anyway. We're not sure why, since you have no right to any sort of procedure for determining whether or how long you should be imprisoned.

That, in essence, is what the Bush administration has told Yaser Esam Hamdi, a U.S. citizen captured in Afghanistan two years ago who is being held at a Navy brig in Charleston, South Carolina. For more than a year Pentagon officials refused to let Hamdi talk to a lawyer, saying that would interfere with his interrogation.

The other day, however, they suddenly pronounced themselves satisfied with the information they had gleaned from him and said he would be allowed to meet with an attorney. Coincidentally, the announcement came the day before the Justice Department had to file a Supreme Court brief defending Hamdi's detention.

Even so, the Pentagon emphasized that allowing Hamdi access to a lawyer was purely discretionary, since "enemy combatants" have no right to legal representation. Which makes sense, since the Bush administration maintains that the president has unilateral authority to declare anyone an "enemy combatant" and lock him up indefinitely, with no opportunity to challenge that designation.

The label may not seem like a stretch in Hamdi's case. After all, what was he doing in Afghanistan, if not fighting with the Taliban or conspiring with Al Qaeda?

Yet the government has been known to make mistakes about such matters. Time reports the Defense Department plans to release at least 140 of the 660 prisoners held at the U.S. military base in Guantanamo Bay, Cuba. Described by a military official as "the easiest 20 percent," they include men "kidnapped by Afghan warlords and sold for the bounty the U.S. was offering for al-Qaeda and Taliban fighters."

If it takes a year or two for "the easiest 20 percent" to gain their freedom, the prospects for innocent prisoners with more complicated cases do not look good. "We ask that they…have access to some tribunal to see whether there is a basis for them to be there," an attorney who represents the families of 12 Kuwaitis held at Guantanamo told Time. It seems like a reasonable request, no matter what the Supreme Court decides regarding Guantanamo's status vis-?-vis U.S. courts.

Unlike Hamdi or the Guantanamo prisoners, Jose Padilla is a U.S. citizen arrested on U.S. soil, so his case most clearly illustrates the extent of the detention authority claimed by the Bush administration. When Padilla was nabbed in Chicago a year and a half ago, the Justice Department accused him of plotting to set off a radioactive bomb. But he was never charged with a crime, and today he sits in the same brig where Hamdi is imprisoned.

According to the Bush administration, Padilla should have no recourse but to wait there until the Pentagon decides what to do with him. At a hearing last month before the U.S. Court of Appeals for the 2nd Circuit, Judge Barrington D. Parker said upholding that position, which he called "breathtaking in its sweep," would cause "a sea change in the constitutional life of the country."

The president's power grab is so dramatic that two former officials of his Justice Department recently expressed reservations about it. In a speech last month, Michael Chertoff, a federal appeals court judge who used to run the department's criminal division, said, "We need to debate a long-term and sustainable architecture for the process of determining when, why, and for how long someone may be detained as an enemy combatant, and what judicial review should be available."

Viet Dinh, a Georgetown law professor who until May headed the Justice Department's Office of Legal Policy, told the Los Angeles Times the administration's approach was "unsustainable." On the Fox News Channel, he said "there has to be a process to determine the basic facts of [Padilla's] detention, whether or not he is indeed what the government says he is."

I suspect I might not agree with Chertoff and Dinh about how much process is due in cases like Padilla's. But at least they're calling for some process, which is more than you can say for their former bosses.