Detention of American as ‘Combatant’ Allowed

A federal appeals court Wednesday refused to rehear the claims of an American-born man captured in Afghanistan who says he is being unconstitutionally held in a military jail as an “enemy combatant.”

A three-judge panel of the U.S. 4th Circuit Court of Appeals had rejected the claims of Yaser Esam Hamdi, 22, in January, ruling that the government has wide latitude to detain people caught fighting against the United States on foreign soil during wartime. The decision overturned a federal judge’s order for the government to present more evidence justifying such a detention.

Hamdi sought a rehearing before the full federal appeals court. The court denied the rehearing, 8 to 4.

The designation “enemy combatant” strips a person of the right to counsel and allows the government to detain him indefinitely.

“Hamdi is being held according to the time-honored laws and customs of war,” Judge J. Harvie Wilkinson III wrote in an opinion concurring in the denial. “There is nothing illegal about that.”

Judge Diana Gribbon Motz disagreed.

“The panel’s decision marks the first time in our history that a federal court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the Executive’s designation of that citizen as an enemy combatant, without testing the accuracy of the designation,” she wrote.

The government has not allowed the Louisiana-born Hamdi to meet with a lawyer, and he has not been charged with any crimes or classified as a prisoner of war. The government has argued that the war on terrorism continues and could last for years.

Only two others have been named enemy combatants since the attacks of Sept. 11, 2001: Jose Padilla, a former Chicago gang member who was allegedly plotting to detonate a radioactive “dirty” bomb and Ali Saleh Kahlah Al-Marri, a Bradley University graduate from Qatar.

Attorneys for Al-Marri have filed a petition in Peoria, Ill., for a writ of habeas corpus, asking the U.S. to justify its reasons for holding him. Al-Marri also is asking federal Judge Michael Mihm to allow Al-Marri to meet with attorneys and Qatar officials.

“We think it’s an important part of our Constitution to be presented with the evidence against you and then to have an attorney as an advocate,” attorney Lee Smith said.