The court ruling is one of several in which the Justice Department has run into legal challenges to its attempts to steamroll the Bill of Rights. In legal briefs the government is arguing that the courts have no right to see the documentation, nor review the decisions of the executive branch in war-related cases. The Justice Department says "wartime" powers give it and the military the right to conduct secret trials and deportations, and to jail U.S. citizens without charging them.

In separate rulings in early August, two courts did not accept the government’s cases. On August 2 a federal judge in Washington ordered the Justice Department to release the names of more than 1,200 people detained since September 11, 2001. The judge said the information was essential in verifying the government is operating "within the bounds of the law." None of those arrested have been charged with any acts of violence.

The Justice Department issued a statement saying that the ruling "impedes one of the most important federal law enforcement investigations in history, harms our efforts to bring to justice those responsible for the heinous attacks of September 11, and increases the risk of future terrorist threats to our nation."

Four days later the Justice Department let pass a deadline for turning over notes and other information to U.S. District Judge Robert Doumar in Norfolk, Virginia. The judge said he needed the material to verify the government claim that U.S. citizen Yaser Esam Hamdi is an "enemy combatant" and outside of protection of the U.S. Constitution.  
 
Government refuses to file charges
Hamdi was captured in Afghanistan last November during Washington’s bombing campaign. He was kidnapped by U.S. forces and sent to Guantánamo Bay, Cuba, where he was imprisoned in outdoor cages along with hundreds of others. Hamdi was transferred to a military prison in Norfolk, Virginia, after repeatedly informing his captors that he had been born in the United States and was a U.S. citizen. The government has so far refused to file charges against him nor allow him to see a lawyer.

Hamdi’s lawyers filed suit to be able to visit him. Doumar twice issued orders to the government to allow Hamdi to receive legal representation. Both times the Justice Department successfully appealed the ruling. In July a circuit court refused to rule on the merits of the case, tipping its hat to the government by stating that the "political branches are best positioned to comprehend this global war." But the judge also said Doumar needed more facts, because otherwise "any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel."

Judge Doumar then ordered the Justice Department to provide him with documents to support the enemy combatant designation, including copies of Hamdi’s statements, notes from interviewers, a chronology of his locations, and the names and addresses of his interrogators.

Government prosecutors asserted that "the military should not need to supply a court with the raw notes from interviews with a captured enemy combatant...or the other types of information listed in the court’s order."

After allowing Doumar’s August 6 noon deadline to pass without handing over the requested documents, the Justice Department stated in a legal memo: "An inspection of the requested materials would all but amount to a [new] review of the military’s enemy combatant determination, and thus exceed the limited standard of review governing the executive determination at issue."

Hamdi’s lawyer, Frank Dunham, a public defender appointed by the court to represent him, said, "The government is doing everything it can to avoid reaching the merits of the case."

The American Bar Association released a report criticizing the government policy and insisted that U.S. citizens labeled as enemy combatants should have access to courts and legal counsel. "It cannot be sufficient for a president to claim that the executive can deem whomever it wants, whenever it wants, for as long as it wants as the detention bears some relationship to a terrorist act once committed by somebody against the United States," the organization stated.

Another U.S. citizen jailed without charges under "enemy combatant" designation is Abdullah al-Muhajir. His arrest last May was accompanied by a high-profile press conference by U.S. attorney general John Ashcroft, who accused him of "plotting" to set off a radiological bomb in the United States. He was moved to a military prison in Charleston, South Carolina, in early June. He has been held in solitary confinement and denied the right to see an attorney ever since.

Despite Aschroft’s assertions, high-level officials at the time told the press that they had so little evidence against Muhajir they couldn’t bring a case against him to court. Muhajir’s former name was José Padilla.

The August 19 Newsweek reports that "authorities" told the magazine they are "not even interested in making a case: they want to force Padilla to tell what he knows about al Qaeda." The official said, "If this guy thinks he might be there for 20 years with no recourse, he might just say ‘OK, let’s talk.’"  
 
Court challenge to secret jailings
In the case of the 1,200 people secretly jailed by federal authorities, the judge’s decision came in response to a lawsuit filed by the Center for National Security Studies and 21 other groups, including the Council on American Islamic Relations, the American Civil Liberties Union, Amnesty International USA, and Human Rights Watch. Under the Freedom of Information Act the lawsuit demanded the names of inmates, their lawyers, the identities of the courts presiding over their cases, and all documents related to the policy.

Judge Gladys Kessler of the U.S. District Court for the District of Columbia ruled that the "first priority of the judicial branch must be to ensure that our government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship." She gave the Justice Department 15 days to release the names and also ordered the government to disclose the names of all "material witnesses"--those who the government claims may have information related to its so-called terrorism investigation.

Kate Martin of the Center for National Security Studies said the ruling is a "total rejection of the attorney general’s rationale for secretly arresting over 1,000 people. It’s a vindication of the proposition that the courts will stop abuses even in times of crisis."

Similar legal battles against secret detentions are being fought in federal courthouses around the country. Federal judges in Detroit, and Newark, New Jersey, have ordered secret deportation proceedings opened to the public. The rulings have been appealed by the Justice Department.

The secret hearings flowed from instructions written 10 days after the attacks on the World Trade Center by the nation’s chief immigration judge, Michael Creppy. "Each of these cases is to be heard separately from all other cases on the docket," he instructed judges across the country. "The courtroom must be closed for these cases--no visitors, no family, and no press."

Creppy said the restriction also barred the courts from "confirming or denying whether such a case is on the docket."

The Justice Department has asserted that the courts have no authority to interfere in these immigration cases because they are not really trials, just merely "administrative hearings." Those who have violated visa regulations have no right to a public defender.  
 
Workers jailed on visa violations
Most of the people snatched up in the government dragnet were Arab or Muslim workers--cab drivers, construction workers, or other laborers--who spent up to seven months in jail before being released. The majority of them were jailed on immigration violations. They were picked up haphazardly, for example, at traffic stops and bus and train stations. So far, the government has failed to produce evidence that any of the detainees had significant information connected to its terrorism investigation.

Two Indian men, Mohammed Jaweed Azmath and Syed Gul Mohammed Shah, seized by federal agents on September 12, were pulled off an Amtrak train near Fort Worth, Texas, and dubbed as "material witnesses" to reporters. They were held in solitary confinement in New York jails for extended periods. One of them did not get an attorney until 91 days after being jailed and it took 57 days before the other man received a lawyer. Under the law a person jailed as a material witness is entitled to a government-paid attorney. Their lawyers now say the men were jailed on immigration violations.

They were interrogated "often times for several hours a day, with multiple interviewers, getting rapid-fire questions from three or four different people," said Anthony Ricco, the attorney for Azmath.

Unable to pin any involvement with the September 11 attacks on the two men, the government charged them with credit card fraud. The men pled guilty to the charge and are awaiting sentencing.

Another person jailed as a material witness, Nabil Almarabh, an immigrant from Syria, was working at a liquor store in Chicago when he was arrested as a "major terrorism suspect" last September. He spent eight months in solitary confinement, was denied a lawyer, and did not attend any judicial proceeding during his eight months in the hole at Brooklyn’s Metropolitan Detention Center. While the government presented no evidence connecting him with supposedly terrorist activity, he is expected to be deported on an immigration charge.

While the majority of the 1,200 immigrants who were rounded up have been reportedly released or deported, "an unknown number are still being held as material witnesses," the Washington Post reported August 3. Kessler said the government’s use of the material witness statute was "deeply troubling." The public "has no idea whether there are 40, 400, or possibly more people in detention on material witness warrants," she stated.

In a related development, a federal judge dismissed efforts on behalf of 16 captives at the prison camp at the U.S. naval base in Guantánamo Bay, Cuba, to end Washington’s policy of holding them without charges, access to lawyers, or trial dates. "The court concludes that the military base at Guantánamo Bay, Cuba, is outside the sovereign territory of the United States," wrote U.S. District Judge Colleen Kollar-Kotelly. "Given that...writs of habeas corpus are not available to aliens held outside the sovereign territory of the United States, this court does not have the jurisdiction" to rule on the case, she added. The 16 plaintiffs--two British citizens, two Australians, and 12 Kuwaitis--are among nearly 600 inmates now imprisoned at the camp. Washington has refused to give the men--who come from 38 countries--prisoner of war status, since that would entitle them to a number of rights, including the right to be repatriated after the war in Afghanistan is over.
 
 
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No secret trials or detentions!  
 
 
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