You know ... it's really impossible to overstate the irony just embedded in this very odd case. The government is going to court to tell the court that the court has no right to review the government's declaration of a person as an enemy combattant ... and the government will (ultimately) abide by the court's decision as to the court's power over the government in this matter. The government is also paying for a lawyer that it asserts that the prisoner has no right to consult, and is in fact apparently allowing limited consultation. It says quite a lot about a certain social respect for the rule of law. Purely a public respect, I'd imagine, as I fully expect that the government's response -- win or lose -- will be to stop ever mentioning US citizens and residents whom it detains. After all, the three or so cases that have already arisen promise to be naked nightmares for the administration; far easier just to avoid the situation in future completely. But nonetheless, an interesting situation.
As to the specifics of the case ... well. It could scarcely get much more messy. Given that this string of cases will wend its way to the Supreme Court, I would fully expect that the Court will wait and combine this case with Jose Padilla's, which is an altogether cleaner case -- after all, he was an American citizen apprehended on American soil. (That said, other issues in Padilla's case are murkier -- after all, by the government's own assertion, he doesn't seem to have done anything actually illegal, although he may have been planning to do so, and absent actual evidence of conspiracy and planning, the government may be forced to charge Padilla with something in order to justify his continued retention. And make no mistake: even if the court says that all habeas corpus rights apply for Padilla, the government will keep him prisoner for the foreseeable future.) Whatever decision the Court decides to make, it will be easier to use Padilla's case as the rule, and then others as markers off that rule.
There's very little legal support for the government's current position, since it hasn't really occurred that often -- conversely, there's not all that much against it in case law, either. The scholars mentioned in the article mention the Japanese internment cases, but I wouldn't imagine that the government would cite those even as evidence of what should be allowed in exigent circumstances; that line of reasoning has been expressly repudiated by both Congress and the courts, and the pure odiousness would get the administration into a public relations nightmare.
"In ordinary wars, the courts would not even look at a case like this, but in this rather peculiar war, the issues are less clear," said Ruth Wedgwood, a law professor and terrorism expert at Yale University. True enough. The problem is that Hamdi was captured on the battlefield, as essentially an ordinary soldier. The information the government can get from him is quite limited.
I honestly think the courts will allow the government to win this specific case, purely because Hamdi was captured overseas on the battlefield. The interesting part will come when it expresses its concerns -- and it will -- and how the government changes its tactics to avoid raising those concerns in the future.Posted by iain at June 20, 2002 10:18 AM