Federal judge Robert Doumar said he would not be a "rubber stamp" for the government in denying the U.S. citizen his constitutional rights. "I have no desire to interfere with the military," he said. "I do have a desire to see that people are treated like human beings."
Doumar ruled August 16 that a nine-paragraph declaration by a Defense Department special adviser was insufficient to justify holding Hamdi indefinitely without charges. It was the second time that the judge had demanded the government provide him with more information about the capture and imprisonment of Hamdi.
The adviser, Michael Mobbs, claimed that Hamdi had affiliated with a Taliban military unit in Afghanistan that surrendered to Northern Alliance forces in late 2001. According to the Washington Post, Mobbs said that a U.S. military "screening team" determined that Hamdi "met the criteria for enemy combatants."
Doumar said Mobbs’s document "leads to more questions than it answers." The judge noted that it did not have "substantial" details, such as whether Hamdi shot anyone or why he was transferred to the military prison in Norfolk. He added that "a close inspection of the declaration reveals that Mr. Mobbs never claims that Hamdi was fighting for the Taliban."
"If the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi," Doumar wrote, "this Court would be acting as little more than a rubber stamp." The due process, he stated, requires more than a "basic assertion by someone named Mobbs that they have looked at some papers and therefore they have determined that he should be held incommunicado."
Hamdi was captured in Afghanistan during Washington’s bombing raids last November and taken to the U.S. prison camp in Guantánamo Bay, Cuba, along with hundreds of others. After informing prison authorities about his citizenship he was moved to the military prison in Norfolk, where he has been in solitary confinement since April 5.
Both a federal public defender assigned to the case and Hamdi’s father have sought to meet with the 21-year-old youth. The judge has twice granted requests to visit Hamdi, but the 4th U.S. Circuit Court of Appeals in Richmond intervened on behalf of the Justice Department to prevent the visits from taking place.
‘Ten years? A lifetime?’
Doumar noted that it seemed too easy for the government to label someone an enemy combatant and use it to arrest and imprison someone indefinitely. He said the document by Mobbs doesn’t state how long Hamdi should be in jail and for what purpose. "How long does it take to question a man?" He asked. "A year? Two years? Ten years? A lifetime?"
Hamdi’s incarceration, he remarked, "sets the most interesting precedent in relation to that which has ever existed in Anglo-American jurisprudence since the days of the Star Chamber," referring to the English kings’ secret court from the 1400s to the 1600s.
"It the government succeeds in this case, if its arguments are upheld it would mean that anybody, anytime could be labeled an enemy combatant by the attorney general and arrested in the middle of the night and locked away in a military brig," said Stephen Dycus, a national security law specialist at Vermont Law School.
In a related development, the Bush administration has rebuked another challenge about its use of "antiterrorism powers," this time from the judiciary committees of the House and Senate seeking information about broader domestic spying operations approved under the U.S.A. Patriot Act.
According to the New York Times, the House committee sent a list of 50 questions to U.S. attorney general John Ashcroft requesting information about "roving" surveillance; FBI snooping into bookstore, library, and newspaper records; and subpoenas under the Foreign Intelligence Surveillance Act (FISA) served on U.S. citizens and immigrants with legal documentation. The Senate committee reportedly sent 27 unanswered letters seeking similar information.
Instead of answering the questions, U.S. assistant attorney general Daniel Bryant sent a letter saying that the information on roving surveillance is "classified" as "provided in Section 206 of the U.S. Patriot Act." He stated that under FISA, the information would be "provided to the intelligence committees in an appropriate channel."
By placing the government’s domestic spying under the umbrella of "foreign intelligence surveillance," the Justice Department makes it more difficult "to continue the traditional Congressional process of oversight of law enforcement activities," noted Harold Koh, former assistant secretary of state in the Clinton administration.
Congressman John Conyers, the ranking Democrat on the House Judiciary Committee, called the move "another shot in this administration’s ongoing war against open and accountable government."
Despite Conyers’s statement, not much has been heard from the House of Representatives or the Senate on the White House moves to erode civil liberties, since both legislative bodies approved the U.S.A. Patriot Act. That law built on the Star Chamber provisions of the 1996 Anti-Terrorism and Effective Death Penalty Act, allowing "preventive" detention on the basis of "secret evidence."
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