The government made this argument in a court brief filed June 19 in the case of Yasser Esam Hamdi, who was born in Louisiana. Hamdi was captured in Afghanistan with retreating Taliban forces in November during Washington’s military onslaught on the country.

In papers filed before the court, the Justice Department is arguing that a federal judge in Norfolk, Virginia, erred in appointing a public defender to represent Hamdi. The brief says that allowing a prisoner to have access to a lawyer "would directly interfere with--and likely thwart--ongoing efforts of the United States military to gather and evaluate intelligence about the enemy." The brief also asserted that the court "may not second-guess the military’s enemy combatant determination."

Hamdi, whose parents are citizens of Saudi Arabia, was captured by the Northern Alliance following heavy bombardment on Mazar-i-Sharif by U.S. warplanes. He was taken to the U.S. concentration camp at its illegally held base in Guantánamo Bay, Cuba.

Hamdi repeatedly informed authorities there of his U.S. citizenship and they were finally forced to transfer him to a military prison in Norfolk, Virginia, where he has been held in solitary confinement. The Justice Department has announced that it does not intend to file criminal charges against Hamdi.

In May the U.S. District Court in Norfolk ordered the military to allow the federal public defender to see Hamdi. Government prosecutors appealed that decision to the 4th U.S. Circuit of Appeals claiming that an attorney would "hamper the military’s interrogation," the Washington Post reported June 14.

"Our client hasn’t been charged with any crime, and the government says that since they haven’t charged him with a crime, they can hold him forever," said Hamdi’s lawyer, Frank Dunham, federal public defender for the Eastern District of Virginia.

The government’s "argument that their interrogation must be ongoing and continuous proves too much, because it would justify the detention of a detainee for an indefinite period of time," Dunham said in a brief filed June 20 with the 4th U.S. Circuit Court of Appeals.  
 
‘No authority to hold a citizen’
The executive branch "does not have the authority to detain an American citizen incommunicado and to unilaterally withdraw from the courts the power to inquire into the propriety of his detention," the brief added.

Rebuking the Justice Department claims that allowing Hamdi legal counsel would harm "intelligence gathering" or allow him to pass messages to enemy colleagues, the brief noted that Hamdi has been imprisoned for more than six months and that the government has "had ample time to interrogate him." The brief also stated that the government has presented no evidence that Hamdi is an enemy combatant or has any ties with any organization deemed terrorist by the U.S. government. It requested that Hamdi be allowed to meet with his lawyers immediately.

Another U.S. citizen also deemed an "enemy combatant," Abdullah al-Muhajir, is being held in the Charleston Naval Weapons Station in South Carolina. Muhajir, who changed his name from Jose Padilla, was arrested May 8 and sent to the military prison June 10 after Attorney General John Ashcroft announced that he was taken into custody because he was exploring a plan to build and explode a radiological dispersion device, or "dirty bomb." Government officials later admitted that Muhajir had neither a plan nor materials to make a weapon of any sort. Muhajir is also prevented from communicating with his lawyer.

"He’s been tried and convicted by the executive branch," said Muhajir’s lawyer Donna Newman. Referring to public allegations against Muhajir by senior White House officials and the limitations placed on her ability to comment on the case, she remarked: "My client’s voice, through me, is impeded. I can’t get it out and that is a great concern."

The Bush administration has sought to justify the military detention of U.S. citizens without charges based on the "military order" issued by the president last November and court decisions from 1942 and 1946. The 1942 case involved German prisoners who challenged their imprisonment, in which a presidential decree prohibited detainees from access to the courts. The Supreme Court ruled, however, that the courts were available to determine if the decree applied to a particular prisoner. The 1946 case concerned a U.S. citizen who fought for the Italian army in World War II. He was granted a lawyer and an evidentiary hearing to establish his status as an enemy soldier.  
 
Constitutional right to speedy trial
A few civil libertarians have spoken against the jailing of citizens without charges and similar moves in the so-called war against terrorism, hailed by the president as "preemptive action" during a June 1 speech he gave at the U.S. Military Academy in West Point, New York.

"The route that they have created in this ad hoc way is devoid of any constraint on the president’s power," said Georgetown University law professor David Cole. "The notion that he can pick people up off the street, label them, and lock them up for the rest of their lives without a hearing is a remarkable one."

Cole said that the lack of evidence explains why the Justice Department has failed to file charges against Hamdi and al-Muhajir. "Where they feel they can win a criminal case, they’ll go the criminal route. Where they feel they can’t, where they don’t have the evidence," they put the person in a military brig, he added.

Laurence Tribe, a professor of constitutional law at Harvard University, writing in a June 16 New York Times opinion column, didn’t explicitly oppose the administration’s moves, but argued that the Bush administration "has the obligation to defend its position in federal court." For the government to "retain its legitimacy, its conduct must always be subject to challenge in a court of law," Tribe said. He noted that the imprisonment of Muhajir stretches "the meaning of already elastic concepts like criminal conspiracy to the point of creating what would amount to thought crimes." It is the "threat--and the promise--of judicial intervention that keeps executive power from veering into tyranny," he concluded.

In a related development, the governor of New Jersey, James McGreevy, signed into law on June 18 the "Sept. 11th Anti-Terrorism Act." According to the New Jersey Star Ledger, the new law defines terrorism as committing a range of certain crimes "ranging from illegal weapons training to murder, for the purpose of disrupting communications or transportation, influencing government policy, or terrorizing five or more people."

Anyone deemed a "member of a terrorist conspiracy" who was allegedly prevented from committing terrorism would face a minimum of 30 years in prison.

The law makes it a crime to raise funds for any organization dubbed terrorist by the U.S. government, even if the fund-raiser is unaware of that designation. Those accused of warning or harboring alleged terrorists or hindering their capture face imprisonment.

Legislators across the country have introduced more than 1,200 bills similar to the New Jersey law, according to the Denver-based National Conference of State Legislatures.  
 
 
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