http://www.cnn.com/2003/LAW/01/08/enemy.combatants/index.html

[b]Americans may be held as 'enemy combatants,' appeals court rules[/b]

Government welcomes ruling upholding presidential power

Wednesday, January 8, 2003 Posted: 5:24 PM EST (2224 GMT)

RICHMOND, Virginia (CNN) -- A federal appeals court Wednesday ruled President Bush has the authority to designate U.S. citizens as "enemy combatants" and detain them in military custody if they are deemed a threat to national security.

"Judicial review does not disappear during wartime but the review of battlefield captures in overseas conflicts is a highly deferential one," said the opinion of the 4th U.S. Circuit Court of Appeals.

The ruling reverses a lower court decision ordering the government to produce more information to defend its holding of Yaser Hamdi, a U.S. citizen accused of fighting with the Taliban in Afghanistan, and dismisses the complaint of his attorneys.

The appeals court ruling was immediately hailed by the government.

"I applaud today's decision, which reaffirms the president's authority to capture and detain individuals such as Hamdi who join our enemies on the battlefield to fight against America and its allies," said Attorney General John Ashcroft. "Today's ruling is an important victory for the president's ability to protect the American people in times of war."

Hamdi, who was born in Louisiana but grew up in Saudi Arabia, is being held in a Navy brig in Norfolk, Virginia, after being captured in Afghanistan.

He has not been allowed visits by the federal public defender who represents him, and the government has given no indication if or when it may file charges against him.

Through a series of court proceedings, Hamdi defense counsel Frank Dunham has argued his client's constitutional rights were being violated. Although a lower court agreed, the three-member appeals panel unanimously rejected the arguments.

"The events of September 11th have left their indelible mark," the court said in explaining its decision to defer to executive authority. "It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day. Yet we speak in the end not from anger or sorrow but from the conviction that separation of powers takes on special significance when the nation itself comes under attack."

"Hamdi's status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framer's scheme," the opinion said.

The federal appeals court in Richmond is widely viewed as among the most conservative in the nation, and has generally supported the government's lawyers during a series of disputes in the Hamdi case.

The ruling Wednesday was issued by Circuit Court Judges J. Harvie Wilkinson III, and William Wilkins, both appointed by President Ronald Reagan, and Judge William Traxler Jr., who was appointed by President Bill Clinton.

In this third appeal by the government in the Hamdi case, the Circuit Court again overturned U.S. District Court Judge Robert Doumar, a Reagan appointee.

In the latest appeal, the United States had asked the Circuit Court to overturn Doumar's order requiring the production of various materials regarding Hamdi's status as an alleged enemy combatant. The lower court questioned whether a declaration by a Defense Department official setting forth what the government contends were the circumstances of Hamdi's capture was sufficient by itself to justify his continued detention.

The appeals panel said it was.

"Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration is a sufficient basis upon which to conclude that the commander-in-chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution," the Appeals Court said. "No further factual inquiry is necessary or proper, and we remand the case with direction to dismiss the petition."

[b]Court does not address Padilla case[/b]

The court did not address the issue presented in a separate case involving another enemy combatant, that of accused "dirty bomb" suspect Jose Padilla. (More on Padilla case)

"We have no occasion, for example, to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. See, e.g., Padilla v. Bush," the opinion read.

"We shall, in fact, go no further in this case than the specific context before us -- that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces."

Ashcroft has alleged that Padilla, 31, who was detained last May after arriving at Chicago's O'Hare International Airport from overseas, was part of a scheme by al Qaeda to explode a conventional bomb laced with radioactive material, possibly in Washington, D.C.

After Padilla had been detained for a month as a material witness in a federal facility in New York City, President Bush declared him an enemy combatant and he was transferred to a Navy brig in Charleston, South Carolina.

His attorneys have argued that he ought to be returned to New York and that the government should be forced to comply with standard criminal court procedures, including letting him speak to his attorneys.