‘Enemy’ Citizen Jailing Criticized

Leaders of the American Bar Assn. criticized the Bush administration Friday for jailing several American citizens as “enemy combatants” without charging them with a crime or giving them a fair chance to prove their innocence.

Only Congress has the power to write the laws, they said, and no law has given administration officials blanket authority to arrest and detain U.S. citizens who are picked up on U.S. soil.

“There is genuine reason for concern about a president’s--or anyone’s--power to unilaterally declare that an American citizen who is arrested in the United States, far from any battlefield or combat arena, is part of the enemy and thus may be treated as an enemy seized in battle,” they said.

At minimum, the administration should explain its policy on handling “enemy combatants” and seek the approval of Congress, the bar leaders said.

The task force report marked the first time the national lawyers’ group has directly confronted the administration over its legal response to the war on terrorism.

The report stopped short of opposing the Bush policy, however, and its criticism was narrowly targeted. It did not fault the military’s holding of 600 Taliban and Al Qaeda soldiers at Guantanamo Bay, Cuba, or the arrest of more than 1,200 immigrants in the United States for questioning after Sept. 11.

Under current law, the military has clear authority to hold enemy soldiers, and noncitizens can be held for even minor violations of immigration law.

“We are talking here only about U.S. citizens detained on U.S. soil,” said Robert Hirshon of Portland, Maine, the ABA’s outgoing president. “We are a nation of laws, and we think U.S. citizens must be given access to counsel and to the courts.”

Two men now in custody have been labeled in court documents as “enemy combatants,” barred from consulting lawyers and told they can be held indefinitely without trial.

Yaser Esam Hamdi is a Saudi national who was picked up by U.S. troops fighting in Afghanistan. He was sent to Guantanamo Bay, where officials learned he was born in Louisiana and thus could claim U.S. citizenship. In April, they transferred him to the naval brig in Norfolk, Va.

Jose Padilla, a Brooklyn, N.Y., native, is being held at the brig in Charleston, S.C. He was arrested May 8 at Chicago’s O’Hare International Airport and accused of plotting to set off a “dirty” bomb.

Hamdi and Padilla have filed writs of habeas corpus to contest their detentions.

In June, Bush’s lawyers claimed extraordinarily broad powers to arrest and detain people whom the president deems to be terrorists or enemy combatants. This “exercise comes within the president’s core war powers,” the lawyers said in a brief filed in Hamdi’s case, and “the court may not second-guess the military’s enemy-combatant determination.” That went too far even for the conservative U.S. 4th Circuit Court of Appeals in Richmond, Va. On July 12, it sent Hamdi’s case back for another hearing before a trial judge in Norfolk.

Chief Judge J. Harvie Wilkinson said the judges were not ready to embrace such “a sweeping proposition.”

Neal R. Sonnett, a Miami lawyer who chaired the ABA’s panel, said the detentions of Hamdi and Padilla appear to violate a 1971 law that declared: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.”

“The validity of these detentions is suspect,” Sonnett said. “This is the first time in modern law that people have been detained incommunicado and perhaps for the rest of their lives without being allowed to talk to a lawyer and go into court.”