citizen held as combatant denied lawyer
A Federal appeals court has overruled a previous decision that Yaser Esam Hamdi, a Taliban fighter who claimed US citizenship, is entitled to a lawyer. Judge J. Harvie Wilkinson of the Fourth Circuit Court of Appeals ruled that a district court's decision to let Hamdi meet with a public defender was flawed and remanded the case back to the lower court with instructions to consider a broader range of implications.
In the face of ongoing hostilities, the district court issued an order that failed to address the many serious questions raised by Hamdi's case. The June 11 order does not consider what effect petitioners unmonitored access to counsel might have upon the government's ongoing gathering of intelligence. The order does not ask to what extent federal courts are permitted to review military judgements of combatant status.
However, Wilkinson refused to dismiss the case, brought by Hamdi's father. He also didn't endorse the concept the claim of U.S. officials that the president has the absolute right to decide who was an unlawful combatant with no court review. In declining, he cited a concern I've raised before.
With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so," he wrote. "Given the interlocutory nature of this appeal, a remand rather than an outright dismissal is appropriate."
So it seems the issue is far from decided. The appeals court has indicated that the executive branch deserves the deference of the courts, but did not rule out a role for the judiciary in determining the validity of a designation of enemy combatant.
One thing I remain curious about is the notion that combatants are not entitled to lawyers. As I've noted, the Supreme Court addressed the issue of (non-citizen) enemy combatants in Ex Parte Quirin. Presumably, the Germans involved in that case had legal counsel, and they were non-citizens from a country with which the US was in a declared war.