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					     CRITICAL ANALYSIS: DOES FEDERAL GOVERNMENT CAN DETAIN AN

         INDIVIDUAL LABELED AS AN ENEMY OF COMBATANT AS PART

                            OF ITS WAR ON TERRORISM?



Abstract



       The paper has been able to provide substantial arguments that is used to

determine if the Federal Government can detain individual labeled as an enemy

combatant as part of its war on terrorism. In this paper, different arguments have been

made to come up with a pertinent and significant conclusion regarding this controversial

issue. The first argument is about the legality of the decision made by the federal

government in detaining an individual labeled as enemy combatant just like what have

been made in the case Hamdi. The second argument raise is the determination if the

decision of the federal government has violated the US Constitution specifically the Fifth

Amendments. In this manner, analysis shows that both arguing parties have been able

to give their points regarding these issues. However, in terms of political, moral, social,

and legal aspects it can be concluded that the federal government has no right to detain

an individual labeled as an enemy combatant without giving him fair and reasonable

judicial method so as to protect his right against deprivation of his constitutional right

both as a US citizen and as a human being.
Introduction

        The Federal Government of the United States has been known to be the most

powerful forces around the world. And due to the 9/11 terrorist attacks, the US forces

has become even more powerful as it shows to the world that terrorism will not ever

make them paralyzed. In this manner, soon after the 9/11 bombing, the Federal

Government and the US Military Forces under the administration of President George

W. Bush have begun crafting their response against terrorism. The antiterrorism

resolution of the United States of America which was passed by the US Congress

states that the President is authorized to implement all essential and correct forces

against those individuals, organizations or nations which has been determined to plan,

authorize, committed or assisted the terrorism attacks. In addition, the antiterrorism

resolution also gave an authority to the President in harboring the alleged individuals

and organizations so as to avoid any further acts of international terrorism against the

US. After such resolution was passed President Bush have structured United Stated

Armed Forces to Afghanistan with an objective to suppress Al Qaeda and quash the

Taliban command which was determined to support Al Qaeda.

        Part of these antiterrorism operation made by the US is the Hamdi v. Rumsfeld,

No. 03-6696 which is regarding their imprisonment of Yaser Esam Hamdi, a US citizen

who has captured in Afghanistan in the lat quarter of 2001.1 According to the

government, the suspect was armed with AK-47 assault rifle and fighting for the Taliban

when his unit surrendered. After his captured, the military identified Hamdi as an enemy




1
 Williams, C.F. (2004). Supreme Court Round Up: The 2003-2004 Term Brought Significant Challenges to Federal
Powers. Social Education, 68(6).
combatant, i.e. Hamdi was a part of/or supporting forces aggressive to the US or its

coalition partners, and engaged in an armed conflict against the United States.2

        In addition to this, the government also asserted that Hamdi first identified

himself as a Saudi citizen. In January 2002, Hamdi was transferred to the Guantanamo

Bay, in Cuba where the captured foreign nationals in Afghanistan are being detained. At

Guantanamo, the 3military has been able to obtain the records of Hamdi and found out

that although the suspect was a Saudi Arabian, Hamdi was born in Baton Rouge

Louisiana, therefore, he can also be considered as a US citizen. In this regard, the

military transferred Hamdi from Guantanamo Bay, Cuba to the US Naval Brig in Norfolk,

Virginia in April of that same year. Nowadays, the Supreme Court's decision in the

Hamdi v. Rumsfeld case regarding the detention of an American citizen as an "enemy

combatant," along with its sister cases, is being hailed positively as the most significant

civil liberties opinion in a half century. While the importance is undeniable, many

organizations and news outlets mischaracterize the Hamdi ruling as a landmark

decision in defense of the Bill of Rights.4

        Primarily, the main goal of this paper is to critically analyze if it is lawful for the

federal government to detain an individual labeled with enemy combatant as part of its

war against terrorism.         In addition, this paper will also attempt to determine if the

decision of the court adheres to the Fifth and Fourteenth Amendments of the Federal

Law. The main arguments in this statement are to determine why there are some legal



2
  Amar (2004). Federalism in the 2003: Term Revisiting Some Old Battles and Setting up Some New Ones.
Preview, 8: 486-488.
3
  Taylor, S. (2002). Jailed with no Key. Legal Time, July, 22 2002.
4
  Sonnett, N.R. et a; (2002). Preliminary Report: Task Force on Treatment of Enemy Combatants. American Bar
Association, August 8, 2002.
authorities are against this decision of the US Supreme Court and why some are in

favor of the decision. Furthermore, this paper aims to provide insightful details that can

be used as evidences to identify if such decision and other actions made by the

Supreme Court is permissible or not. Part of the discussion is to identify some moral

and political, economic, social and ideological assumptions to make the arguments

reliable.



Critical Analysis

        The case in terms of the detention of individuals labeled as enemy combatant is

legally authorized as part of the antiterrorism resolution made by the US government.

However, there are still questions that arise regarding the appropriate constitutional due

process to be used to a citizen who are labeled as an enemy combatant. As his

disputes against his label of being an enemy combatant, Hamdi claims that he is owed

a timely and significant hearing and that the decision of the court for extra-judicial

detention that begins and ends upon his submission of an affidavit base in third-hand

hearsay does not adhere with the Fifth and Fourteenth Amendments.

        After Hamdi was transferred to the detention area in Virginia, Hamdi remains

detained on American soil without access to representation and without formal accuses

filed against him.5 The United States District Court Judge Robert Doumar has been able

to grant Hamdi's petitions for the right to representation, twice. After Hamdi’s first

habeas petition of jurisdictional arguments has been dismissed, the Fourth Circuit Court

of Appeals have revered the second order of Judge Robert Doumar because of the

5
 Sperber, M.H. (2003). John Walker Lindh and Yaser Esam Hamdi: Closing the Loophole in International
Humanitarian Law of American Nationals Captured Abroad while Fighting with Enemy Forces. American Criminal
Law Review¸40(1): 159+
Constitution’s commitment of the conduct of war to the political department of the

federal government requires the court’s respect at this process. Consequently, in

denying the appeal of Hamdi for legal representation, the court had reasoned that any

judicial inquiry into Hamdi's status as suspected enemy combatant that has captured in

Afghanistan must reflect certain recognition that the government has no more profound

and intense duty than the protection of the United States including the civilians and the

military forces, against additional meaningless attack.6

        However, the controversy and the argument continued when, in early August of

the year 2002, the Department of Justice refused to adhere with the District Court's

order to establish additional documentation to support Hamdi's detention. In late

October 2002, a three-judge panel of the Fourth Circuit heard the government's appeal

for assistance from the order to Judge Robert Doumar to provide documentation that

will support Hamdi's imprisonment. Without giving out an opinion, the Fourth Circuit has

shown their reluctance about allowing the judiciary and court to provide in-depth

analysis for the sensitive documents in relevance to the captivity of Hamdi in

Afghanistan by the military forces of US.

        Morally speaking, the administration of Bush has destabilized the constitution-

whilst it continually guaranteeing to protect the individual liberties of its people from

terrorists attacks whose mission is to destroy the United States.7 The most extreme ha

been the legal authorization regarding antiterrorism resolution that the President has all

the right and power to indefinitely imprison an American in a military detention areas

within the US without giving any charges to access to consult a lawyer or any other

6
 Supra note 5
7
 Cole, D. (2004). The Priority of Morality: The Emergency Constitution’s Blind Spot. Yale Law Journal, 113(8):
1753+.
individual close or not close with the detainee but their guards. As mentioned, one of the

most contemporary issues regarding federal government justice system regarding

terrorism is the case of Yaser Esam Hamdi v. Rumsfeld.8

        As mentioned, debate among the proponents and the critique of the actions of

the Federal Government, specifically the actions of the Supreme Court in Hamdi v.

Rumsfeld case has been recognized as a popular dispute in the modern law of the

United Stated. The decision made by the Supreme Court regarding the case of Hamdi

v. Rumsfeld has been able to encounter many controversies as the antiterrorism

movements established has been applied. One of the arguments raised in this

controversy is that the antiterrorism movement that authorized the President to have all

the power to give actions against terrorists and in which also vested the right to detain

an individual labeled as enemy combatant adheres to the constitution of the federal

government.

        One of the proponents of this is John Ashcroft. Attorney General John Ashcroft,

citizen Hamdi's treatment is legitimate because Hamdi is an “enemy combatant” and

there is “clear Supreme Court precedent” to handle those persons differently, even if

they are citizens. Ashcroft's so-called clear precedent is a 1942 Supreme Court case,

Ex Parte Quirin, which dealt with Nazi saboteurs, at least one of whom was a U.S.

citizen. “Enemy combatants,” said the Court, are either lawful for example, the regular

army of a belligerent control or unlawful or example, terrorists. When lawful combatants

are captured, they are POWs. As POWs, they cannot be tried (except for war crimes);

they must be repatriated after hostilities are over; and they have to provide only their


8
 Elsea, J.K. (2003). Presidential Authority to Detain Enemy Combatants. Presidential Studies Quarterly, 33(3):
568+.
name, rank, and serial number if interrogated. Clearly, that's not what the Justice

Department had in mind for Hamdi.9

        On the other hand, unlawful combatants are different. When unlawful combatants

are captured, they can be tried by a military tribunal. That's what happened to the Nazi

saboteurs in Quirin. But Hamdi has not been charged, much less tried. Indeed, the

president's executive order of November 2001 excludes U.S. citizens from the purview

of military tribunals. If the president were to modify his order, the Quirin decision might

provide legal authority for the military to try Hamdi. But the decision provides no legal

authority for detaining a citizen without an attorney solely for purposes of aggressive

interrogation.10

        Moreover, the Constitution does not distinguish between the protections

extended to ordinary citizens on one hand and unlawful-combatant citizens on the other.

Nor does the Constitution distinguish between crimes covered by the Fifth and 14th

Amendments and terrorist acts. Still, the Quirin Court justified those distinctions—noting

that Congress had formally declared war and thereby invoked articles of war that

expressly authorized the trial of unlawful combatants by military tribunal. Today, the

situation is different. This had virtually no input from Congress: No declaration of war,

no authorization of tribunals, and no suspension of habeas corpus.11

        Yet those functions are explicitly assigned to Congress by Article I of the

Constitution. It is Congress, not the executive branch, which has the power “To declare

War” and “To constitute Tribunals inferior to the Supreme Court.” Only Congress can

9
  Baker, N.V. (2002). The Law: The Impact of Antiterrorism Policies on Separation of Powers Assessing John
Ashcroft Role. Presidential Studies Quarterly, 32(4): 756+
10
   Hentoff, N. (2003). The War on the Bill of Rights and the Gathering Resistance. New York: Seven Stories Press.
11
   Crane, E.H. & Boaz, D. (2003). Cato Handbook for Congress: Policy Recommendations for the 108 th Congress.
Washington, D.C.: Cato Institute.
suspend the “Privilege of the Writ of Habeas Corpus… when in Cases of Rebellion or

Invasion the public Safety may require it.” Congress has not spoken except by enacting

the PATRIOT Act. And there, people do find authorization for detention of persons

suspected of terrorism—but only non-citizens and only for seven days, after which they

must be released unless criminal charges are filed or deportation proceedings

commenced.

           Although there are advocates of the decision made by the Supreme Court, there

are also some individuals who opposed the actions made against Hamdi. One of the

critiques of these actions is Professor Lawrence Tribe of Harvard Law. In his

constitutional-law casebook, Tribe (2002) has quoted by the Supreme Court in one

episode of the ABC TV’s Nightline:

           “It bothers me that the executive branch is taking the amazing position that, just

on the president's say-so, any American citizen can be picked up, not                                       just in

Afghanistan, but at O'Hare Airport or on the streets of any city in this country and be

locked up without access to a lawyer just because the government says he is connected

somehow with ... Al Qaeda. That's not the American way. It's not the constitutional

way.... And no court can even figure out whether we've got the wrong guy”.12

           In the argument made by Tribe, he believes that the executive and judicial

branch of the United States have become more powerful that it does not provide

enough assessment regarding their actions. This is in terms of letting an American

citizen to be detained without giving him any chance of defending himself or

opportunities to be defended by legal authorities just because of the reason that he has

been labeled as an enemy combatant. In addition, the statement made by Tribe also
12
     Tribe, L. (2002). In an interview at ABC TV’s Nightline as quoted by the Supreme Court. Harvard Law.
contest the legality of the actions made by both the judicial and the executive branch of

the Federal Government, specifically the decision of the Supreme Court regarding

Hamdi v. Rumsfeld. Further, the argument of Tribe also asserts that the actions and

decisions made by these authorities do not adhere to the constitution of the US.

However, on the 9th of July, 2003, the Fourth Circuit of Court of Appeals have opposed

the statement of Lawrence Tribe and decided that the Hamdi v. Rumsfeld definitely is

the American way. The Fourth Circuit Court of Appeals argues that the ruling used is

appealed to the US Supreme Courts and that the decision of the Supreme Court is final.

           Aside from Lawrence Tribe there are many other individuals who disputed the

opinion of the Supreme Court regarding Hamdi v. Rumsfeld case. In the interview with

Mr. Stephen F. Rohde (a lawyer in Rohde and Victoroff law firm). He said that agrees

the rejection of the court in terms of government contention that, they have the sole

power to hold a US citizen indefinitely. Conversely, Rhode (2005) also believed that the

court has failed to provide clear cut evidence that deals with future terrorist suspects.

And Rhode also believed that with this occurrence, the court has rejected the executive

strategic move to lessen and restrict the judicial branch’s power to assess and evaluate

its actions. In this case, the court has re-asserted the legal and has overseen its power

by restraining the over reaching power of the forceful executive branch. This means

that the Supreme Court has not been able to provide an efficient and valid affirmation

regarding their actions towards the detention of Hamdi who has bee allegedly labeled

as the enemy combatant prior to his capture in the Afghanistan.13

           In the interview made with Mr. Rhode, he seems to have a liberal leaning

ideology regarding the issue of the detention of the individual allegedly labeled as
13
     Rhode, S.F. (2005). In an interview conducted with Mr. Stephen F. Rhode. ACLU Southern California.
enemy combatant. In legal aspects, Mr. Rhode is trying to give emphasis on a more

substantive due process than the procedural due process required by the 14th

Amendment. In this standpoint, Mr. Rhode has been lead to refuse any kind of military

tribunal as a sufficient principle to attain the requirement, specifically the constitutional

requirements. He asserts that like any other liberal justice system, the issue of crime

control always stays behind the conception of human rights. In the assessment of the

interview with Mr. Rhode, he believes that the basics principle that has been accepted

by advocates of human rights is the premise that, an American citizen cannot be held

indefinitely by the Federal Government without going into trials or at least habeas

corpus process and let the accused have an equal and neutral decision maker in

presenting his case.

       Another argument that is obvious in this case is that the decision made by the

Supreme Court does not adhere to the provision and principles of the Fifth and the 14th

Amendment. As conceived in the US Constitution, all individual is entitled to all their

rights and that the US Constitution has been passed to protect these rights, even if such

individuals have allegedly committed criminal acts. Included in the US Constitution, is

the Fifth Amendment which requires due process of the law and states that:

       “No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service in time of War or public

danger...nor be deprived of life, liberty, or property, without due process of law (US.

Constitution, amend V).”
           Another individual who has been able to provide his standpoint regarding the

issue of whether the detention of Hamdi has violated the Fifth Amendment is Neil S.

Siegel of the Duke Law. According to Siegel (2005), he argues that the decision of the

government to detain an enemy combatant has violated the Fifth Amended and has not

violated the Fifth Amendment the provision at the same time. He argues that, the

detention was made prior to the authorization of the Congress and that any legal actions

carried on it was part of the resolution made by the Congress against terrorist attacks.

           However, although the detention is under the authorization of the Congress,

Professor Neil Siegel also believes that Justice Sandra Day O’Connor was right when

she said that the action must also adheres to the Fifth Amendment of the US

Constitutions which states that an alleged enemy combatant has the right to contest or

challenge the action with a neutral decision maker. For him, the justice plurality has

eventually rejected that argument of the government’s in terms of the separation of

powers. Herein, it is said that separation of powers has prevented the judiciary from

hearing the challenge and contest of Hamdi. In addition, he said the Justice David H.

Souter along with Justince Ruth Bader Ginsburg, agreed with the decision that Hamdi

has the sole right to contest in court regarding his status as an enemy combatant, while

both disagreed that the Congress has authorized the detention of Hamdi.14



Impact of the Decision

           The decision made by the Supreme Court to detain Hamdi without giving him fair

trial has affected different aspects of humanitarian law. Legally speaking, it is included

in the US Constitution that each individual has the right to contest or challenge the court
14
     Siegel, N.S. (2005). In an Interview conducted with Professor Neil S. Siegel. Duke Law.
for having equal opportunities if he or she has been accused of any criminal or unlawful

act. However, with the case of Hamdi, it seems that the Supreme Court has rejected

this provision for a certain reason that the accused is labeled as an enemy combatant

and a US citizen at the same time.

       The impact of this is it lets the people think, specifically the Americans, to think

that if one has been captured and accused and labeled as an enemy combatant, then

the government has the sole right to detain the accused indefinitely without giving her

the opportunity to undertake legal actions to defend himself. In addition, in the interview

with Professor Neil Siegel, he stated that “the main legal consequence likely with the

decision of the Supreme Court will be confusion in the lower courts. Further, he also

say that the decision of the Supreme Court regarding the case of Hamdi, has both legal

and political consequence, in which he said that the government may be forced to

continuously fight tooth and nail to avoid giving basic protections to detainees that will

be caught in the future.

       On the other hand, it seems that the decision of the court regarding Hamdi v.

Rumsfeld has also implications in terms of social aspects.          As mentioned, if the

American citizen is allegedly labeled as an enemy combatant, all his right to have fair

judicial system will be neglected. In this manner, American citizen is socially affected by

fearing the government instead of putting in mind that the US government is there to

protect and secure their rights as an American. Moreover, as this becomes more

prevalent, Americans might feel suppressed by the laws provided by their government.

Economically speaking, these actions of the Supreme Court and the US government

against terrorism may also affects the economic situation in both the national and
international level. Since, the government may have the sole right to determine and

attest an individual to be an enemy combatant, more people may be afraid to be

productive as a citizen. The Americans will have different views and unity may be

threatened which affects the stability of the nation.15



Conclusion

        Analysis shows that both arguing parties (proponents and critiques) has made

their points in providing significant views regarding the decision of the Supreme Court to

detain an individual who are labeled as enemy combatant. However, it can be seen that

critiques has been able to give a more reliable arguments to conclude that what has

been done by the Supreme Court and the government regarding the case of Hamdi v.

Rumsfeld is unlawful because it violates the amended US Constitution, specifically the

Fifth Amendments.

        In general it can be said that, if civil libertarians have a single overriding concern

about the PATRIOT Act and the detention policies made by the government, it is this:

the Bush administration has concentrated too much unchecked authority in the hands of

the executive branch—making a mockery of the doctrine of separation of powers that

has been a cornerstone of US Constitution for two and a quarter centuries. In this case,

one cannot, for example, permit the Federal Government, specifically the executive and

judicial branch to declare unilaterally that a U.S. citizen may be characterized as an

enemy combatant, whisked away, detained indefinitely without charges, denied legal

counsel, and prevented from arguing to a judge that he is wholly innocent because he is


15
  Timothy, L. (2002). Breaking the Vicious Cycle: Preserving our Liberties while Fighting Terrorism. Cato
Institute Policy Analysis, 443.
allegedly identified as a member of a terrorist group or as a fighter for any terrorist

groups.

       That does not mean the Justice Department must set people free to unleash

weapons of mass destruction. But it does mean, at a minimum, that Congress must get

involved, exercising its responsibility to enact a new legal regimen for detainees in time

of national emergency. That regimen must respect our rights under the Constitution,

including the right to judicial review of executive branch decisions. Constitutional rights

are not absolute. But they do establish a strong presumption of liberty, which can be

overridden only if government demonstrates, first, that its restrictions are essential and,

second, that the goals it seeks to accomplish cannot be accomplished in a less invasive

manner. When the executive, legislative, and judicial branches agree on the framework,

the potential for abuse is diminished. When only the executive has acted, the foundation

of a free society can too easily erode.
Reference

Amar (2004). Federalism in the 2003: Term Revisiting Some Old Battles and Setting up Some
      New Ones. Preview, 8: 486-488.

Baker, N.V. (2002). The Law: The Impact of Antiterrorism Policies on Separation of Powers
       Assessing John Ashcroft Role. Presidential Studies Quarterly, 32(4): 756+

Cole, D. (2004). The Priority of Morality: The Emergency Constitution’s Blind Spot. Yale Law
       Journal, 113(8): 1753+.

Crane, E.H. & Boaz, D. (2003). Cato Handbook for Congress: Policy Recommendations for the
       108th Congress. Washington, D.C.: Cato Institute

Elsea, J.K. (2003). Presidential Authority to Detain Enemy Combatants. Presidential Studies
       Quarterly, 33(3): 568+.

Hentoff, N. (2003). The War on the Bill of Rights and the Gathering Resistance. New York:
       Seven Stories Press.

Rhode, S.F. (2005). In an interview conducted with Mr. Stephen F. Rhode. ACLU Southern
      California.

Siegel, N.S. (2005). In an Interview conducted with Professor Neil S. Siegel. Duke Law.

Sonnett, N.R. et a; (2002). Preliminary Report: Task Force on Treatment of Enemy Combatants.
       American Bar Association, August 8, 2002.

Sperber, M.H. (2003). John Walker Lindh and Yaser Esam Hamdi: Closing the Loophole in
       International Humanitarian Law of American Nationals Captured Abroad while Fighting
       with Enemy Forces. American Criminal Law Review¸40 (1): 159+

Taylor, S. (2002). Jailed with no Key. Legal Time, July, 22 2002.

Timothy, L. (2002). Breaking the Vicious Cycle: Preserving our Liberties while Fighting
      Terrorism. Cato Institute Policy Analysis, 443.

Tribe, L. (2002). In an interview at ABC TV’s Nightline as quoted by the Supreme Court.
       Harvard Law.

Williams, C.F. (2004). Supreme Court Round Up: The 2003-2004 Term Brought Significant
       Challenges to Federal Powers. Social Education, 68(6).

				
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