U.S. Appellate Court Upholds Detention of U.S. Person Arrested in Afghanistan

On January 8, 2003, the United States Court of Appeals for the 4th Circuit upheld the arrest and detention without rights for the duration of the war as an ?enemy combatant? U.S. citizen Yaser Esam Hamdi, who was captured with Taliban forces in Afghanistan. The only victory won by defense counsel was that the court rejected the Department of Justice?s argument that enemy combatants have no right to a judicial review of their detention and status and the court was careful to limit the right to arrest and detain such combatants to persons arrested on the battlefield. The appeal was the third appeal in which the U.S. challenged the district court?s order requiring the production of various materials concerning Hamdi?s status as an alleged enemy combatant. The district court certified for appeal the issue of whether a declaration by a Special Advisor to the Under Secretary of Defense for Policy, containing what the government contends were the circumstances of Hamdi?s capture was adequate by itself to justify his detention. In June 2002, Hamdi?s father, Esam Fouad Hamdi, filed a petition for hasbeas corpus, naming as petitioners both Hamdi and himself as next friend. The petition asked the court to order the U.S. to cease all interrogations when the litigation was pending, order that the U.S. was holding him in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution; schedule an evidentiary hearing; and order his release from ?unlawful custody.? On June 11, before the U.S. Government had time to respond to the petition, the district court appointed Public Defender Frank Dunham as cousel for the detainee and ordered the U.S. Government to permit the Defender unmonitored access to Hamdi. On July 12, the appellate court reversed the district court?s order granting counsel immediate access to Hamdi, cautioning that Hamdi?s petition involved complex and serious national security issues and requiring the district court to show proper deference to the Government?s legitimate security and intelligence interests. The appellate court sanctioned a limited and deferential inquiry into Hamdi?s status. The appellate court reasoned that detention prevents enemy combatants from rejoining the enemy and continuing to fight against the U.S. and its allies. In addition, ?captivity is neither a punishment nor an act of vengeance, but rather ?a simple war measure.? Additionally, detention in lieu of prosecution may relieve the burden on military commanders of litigating the circumstances of a capture. The appellate court rejected the application of Article 5 of the Geneva Convention that requires an initial formal determination of his status as an enemy belligerent ?by a competent tribunal? because it is not self-executing. The decision relies heavily on the separation of powers in the constitution and the predominant role of the Commander in Chief in conducting war and making discretionary decisions.