The Enemy Within

"Ask for a lawyer immediately upon your arrest," reads the little informational card the ACLU hands out to citizens. Titled "What To Do If You're Stopped By The Police," it's a list of basic constitutional rights, with advice about how to behave in a manner consistent with expectations of minimal due process. "Try to find witnesses," it continues. "Ask if you are under arrest. If you are, you have a right to know why."

That little card is sounding awfully quaint these days. After all, it refers to a standard of proof that assumes innocence until guilt is proven. It places the burden of proof on the prosecution, where it has always been. It assumes the option of a trial. But in a January 8 decision, the Court of Appeals for the Fourth Circuit ruled that Yasser Hamdi, an American citizen captured in Afghanistan, may be held indefinitely, without charge and without access to a lawyer. Judge Harvie Wilkinson wrote that "the courts are ill-positioned to police the military's distinction between those in the arena of combat who should be detained and those who should not."

While the court's ruling explicitly applies to "enemy combatants" captured in the "theater of war," it also limits the scope of judicial inquiry as to what those terms might mean. In other words, not only can Hamdi have no lawyer, he cannot challenge his designation as enemy soldier, or even whether the war was or is still going on. Such determinations, said the court, are solely the province of the President and his military advisers.

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