Ashcroft vs. The Constitution

Nat Hentoff

Among the continuing Ashcroft-Bush serial violations of the Bill of Rights, one has increasingly aroused editorial writers, constitutional scholars, and other citizens across the political spectrum.

Under the elastic designation “enemy combatants,” the administration is holding two American citizens—with more to come—in military brigs and without charges, access to a lawyer, or the right to appear personally before a judge. Nor are their lawyers able to see them.

In a September 1 editorial, the Washington Post expressed shock: “To yank an American out of the court system and then maintain, purely on the government’s word, that he is not entitled to challenge the evidence against him, is a breathtakingly radical act. . . . Among the many confrontations between civil liberties and the war on terror, the government is advancing no contention more dangerous.”

One of these citizens, utterly stripped of his constitutional rights, is Yaser Hamdi, taken into custody in Afghanistan and alleged to have been a member of a Tali ban unit. His case—though not Hamdi himself—has been before Federal District Judge Robert Doumar in Norfolk, Virginia. The seventy-two-year-old judge, a Reagan appointee in 1981, said: “This case appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without charges, without any finding by a military tribunal, and without access to a lawyer.”

“So,” Judge Doumar asked Gregory G. Garre—an assistant to Solicitor General Theodore Olson, one of Ashcroft’s master strategists in the war against the Bill of Rights—“the Constitution doesn’t apply to Mr. Hamdi?”

The government’s lawyer did not answer that question. Then Judge Doumar—as reported by Katharine Seelye in the August 13 New York Times—responded acidly to a two-page statement presented to the court from one Michael Mobbs, a special adviser to the undersecretary of defense for policy. The statement professed to explain how the government defines Hamdi as an “enemy combatant.” (This kind of evasive definition applies as well to American citizen Jose Padilla, arrested at Chicago’s O’Hare airport, and now also locked up in a military brig.)

“From the bench,” Seelye “Judge Doumar reported, that he made very clear lacking found the statement in nearly every respect.” It said Mr. Hamdi was captured

during hostilities but did not say what he was doing. It said Mr. Hamdi “was determined by the U.S. military screening team to meet the criteria for enemy combatants,” but did not say what the criteria were, who was on the team, or who reached that conclusion.

Defense Secretary Donald Rumsfeld has insisted that the reason that so-called enemy combatants are being held indefinitely without charges is that they are being interrogated to learn their links to terrorist activities and plans.

In the courtroom, Judge Doumar asked the government’s lawyer: “How long does it take to question a man? A year? Two years? Ten years? A lifetime? How long?”

The only response by the man from the Justice Department was: “The present detention is lawful.”

The ultimate determiner of who gets put out of sight as an enemy combatant is the president of the United States, and Judge Doumar was told that

George W. Bush had decided that Hamdi and Padilla are enemy combatants because, under the Geneva Convention, they don’t qualify for prisoner-of-war status and the limited rights due those held in that status.

Judge Doumar was having none of that jive either. According to military regulations, he said, a competent military tribunal must screen prisoners to decide whether they’re prisoners of war, and the cursory “screening” Hamdi got—accord-ing to the two-page statement by Michael Mobbs—didn’t meet that test.

“I have no desire,” Judge Doumar said, using the Constitution as his Excalibur, “to have an enemy combatant get out. But due process requires something other than a declaration by someone named Mobbs that he should be held incommunicado. Isn’t that what we’re fighting for?” (Emphasis added.)Judge Doumar twice ordered the government to allow Hamdi’s court-appointed public defender, Frank Dun-ham, Jr., to see his client. But the government appealed to the Fourth Circuit Court of Appeals, the nation’s most conservative circuit, which twice stayed the order. That court instructed Doumar to take into account the necessary deference to the executive branch in times such as these and hear more of the government’s case.

However, even the Fourth Circuit was startled by what is called the administration’s “sweeping proposition that with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so.”

A keyword is alleged. The other American citizen shorn of all rights, Jose Padilla, is held on the basis of information from “intelligence sources” concerning Al Qaeda. But as the Washington Post points out in its editorial, the government “concedes that its intelligence sources have not been completely candid about their association with Al Qaeda and their terrorist activities and that ‘some information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials.’ Without some reality check, there is no way to have confidence that Mr. Padilla is what the government claims.”

Meanwhile, the August 8 Wall Street Journal reported that Padilla is imprisoned in the Goose Creek, South Carolina, military facility that “now has a special wing that could be used to jail about 20 U.S. citizens if the government were to deem them enemy combatants,” a senior administration official said.

Georgetown University law professor Jonathan Turley wrote in the August 14 Los Angeles Times that John Ashcroft is planning detention camps for alleged enemy combatants that will hold many more than twenty citizens.

The fate of American citizens targeted as enemy combatants will ultimately be decided by the Supreme Court, whose chief justice has said that, if he had been on the Court when Japanese-Americans were put in detention camps, he would have agreed with that decision. Sandra Day O’Connor said right after September 11 that Americans have to be prepared to give up some of their liberties for security against terrorism. Antonin Scalia and Clarence Thomas are likely to agree. I’m not that sure, moreover, of Anthony Kennedy or even Stephen Breyer to be on the side of the Bill of Rights.

The Constitution is in ever greater danger, and so, therefore, are we.


Nat Hentoff is a regular columnist for the Village Voice, Legal Times, Washington Times, and Editor & Publisher, a United Media syndicated columnist, and the author of Living the Bill of Rights (University of California

Nat Hentoff

Nat Hentoff is a United Media syndicated columnist, a senior fellow at the Cato Institute, and the author of, among other books Living the Bill of Rights (University of California Press, 1999) and The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2004). His latest book is At the Jazz Band Ball: Sixty Years on the Jazz Scene (University of California Press, 2010).


Among the continuing Ashcroft-Bush serial violations of the Bill of Rights, one has increasingly aroused editorial writers, constitutional scholars, and other citizens across the political spectrum. Under the elastic designation “enemy combatants,” the administration is holding two American citizens—with more to come—in military brigs and without charges, access to a lawyer, or the right to …

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