“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.
The Fourth Circuit’s decision comes on the heels of a case brought by Jose Padilla, another American citizen, captured not on the battlefield but in O’Hare airport. Padilla has been in a military brig for more than eight months without any formal charge (although the Justice Department has publicized its conviction that he was planning to detonate a so-called dirty bomb). Padilla challenged his designation as an enemy combatant, and early last December US District Judge Michael Mukasey held that “Padilla’s need to consult a lawyer is obvious.” That ruling, however, which was widely interpreted as one protecting a modicum of Padilla’s due process, still leaves him without the right to have a lawyer present during interrogation.
Ultimately, the courts will have to chart some more consistent course among the cases now cropping up since September 11. After all, John Walker Lindh was also an American citizen captured on a battlefield in Afghanistan, but he was tried in US courts. His case was attended by a near-universal public sense that for purposes of his situation, the war ended when Hamid Karzai took power. What is at least as worrisome as the inconsistency is that the Bush Administration has repeatedly defended its power to detain enemy combatants not simply in the war against Al Qaeda or Afghanistan or Iraq or North Korea but “in this war on terrorism.” As I write, prosecutors are discussing whether to charge sniper John Lee Malvo under an antiterrorism statute. Does this mean that Malvo’s quite terrifying but wholly domestic crimes have the potential to turn suburban Washington into a theater of war?