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From the time Taliban John Walker Lindh was captured fighting with the Taliban/al-Qaeda in Afghanistan, I had argued that he, like Hanoi Jane Fonda before him, should be indicted and tried for treason.

Although neither Lindh nor Fonda, nor anyone else, has been charged with treason since World War II, an encouraging recent sign is the case of the Portland Six. As I wrote in this magazine late last year (November 7, 2002):

On the day Lindh was sentenced, several American citizens were indicted in Oregon, not only for the usual – and deadly – "material support and resources" crime that nailed Lindh, but also for conspiracy to levy war against the United States. If this language sounds familiar, it’s because similar phraseology appears in Article III, Section 3, of the United States Constitution, which defines "treason": "Treason against the United States, shall consist only in levying  war against them, or, in adhering to their  enemies, giving them aid and comfort."

Although much of the focus of the treason discussion in the last year has been on the "adhering" prong of the crime, in it’s indictment of the Portland Six the Department of Justice has invoked the other prong of the constitutional crime of treason – sort of.

There is another federal statute – that I call "Treason Lite" – which makes it a crime to conspire to "levy war against the United States." That’s what the Portland Six were charged with. That statute is Title 18, United States Code, Section 2384. The pertinent part provides:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them . . . they shall each be fined under this title or imprisoned not more than twenty years, or both.

While Section 2384 stops short of a constitutionally based charge of treason, its use against the Portland Six may represent the government’s movement toward treason indictments in appropriate cases (which this one probably isn’t, because of the difficulty of proving "aid and comfort").

Now, in addition to the government’s use of the federal "treason lite" statute against terrorists, we have the January 8, 2003 Hamdi decision from the United States Court of Appeals for the Fourth Circuit, approving another weapon for use against American citizens who fight against their own country.

Yaser Esam Hamdi is an American citizen by birth. He served in Afghanistan with the Taliban/al-Qaeda, was captured by the Northern Alliance, and turned over to United States forces. From Afghanistan, Hamdi was taken to Guantanamo Bay, and then transferred to the Norfolk Naval Station Brig in April 2002, where he has remained ever since.

In my article for this magazine,"Who’s Who Among American Terrorists" (October 17, 2002), I made the following prediction about Hamdi:

Hamdi is in much the same position as Lindh. He was captured on the battlefield, in "uniform," armed and fighting for the Taliban/al-Qaeda. * * * Although some have loosely characterized Hamdi as an "unlawful combatant," under the [United States Supreme Court] Quirin analysis he is a "lawful combatant," and thus a prisoner of war. Even though the Geneva Convention may apply to him, he can be held until the end of hostilities. – and he may well be. * * * American citizen POWs captured while fighting with our enemies bear the burden of that citizenship, no matter that they are also prisoners of war.

Hamdi and his "usual suspect" champions from the Left disagreed, and took the United States government to court by filing a petition for a writ of habeas corpus. His petition in the trial court, as quoted and paraphrased by the Court of Appeals, alleged that:

"As an American citizen . . . Hamdi enjoys the full protections of the Constitution," and . . . the government's current detention of him in this country without charges, access to a judicial tribunal, or the right to counsel, "violate[s] the Fifth and Fourteenth Amendments to the United States Constitution." By way of relief, the petition asks . . . that the district court: (1) "Order [the government] to cease all interrogations of Yaser Esam Hamdi, direct or indirect, while this litigation is pending"; (2) "Order and declare that Yaser Esam Hamdi is being held in violation of the Fifth and Fourteenth Amendments to the United States Constitution"; (3) "To the extent [the government] contest[s] any material factual allegations in th[e] Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations"; and (4) "Order that Petitioner Yaser Esam Hamdi be released from [the government’s] unlawful custody."

Given that Hamdi is an American citizen, and thus that his Petition raised serious constitutional questions, the trial judge referred the following question to the Court of Appeals: "Whether a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth what the government contends were the circumstances of Hamdi’s capture was sufficient by itself to justify his detention."

That declaration provided additional details about Hamdi’s peregrinations:

Hamdi traveled to Afghanistan in approximately July or August of 2001 and proceeded to affiliate with a Taliban military unit and receive weapons training. While serving with the Taliban in the wake of September 11, he was captured when his Taliban unit surrendered to Northern Alliance forces with which it had been engaged in battle. He was in possession of an AK-47 rifle at the time of surrender. * * * According to [the Special Advisor], interviews with Hamdi confirmed the details of his capture and his status as an enemy combatant.

The proceeding in the United States Court of Appeals for the Fourth Circuit brought out many of the most militant Leftist lawyers, academics, and organizations in the country as "friends of the court" on behalf of American Taliban II. (For names, see the Appendix following this article). Even this massive legal firepower – from those who wanted Hamdi to enjoy all the constitutional rights of an American, even though he had been captured on the battlefield as a member of armed forces arrayed against the United States – wasn’t enough. The Court of Appeals unanimously (3-0) held:

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 [by a Special Advisor to the Under Secretary of Defense for Policy] is a sufficient basis on 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. No further factual inquiry is necessary or proper, and we remand the case [to the trial court] with directions to dismiss the petition [for the writ of habeas corpus]." (Emphasis added).


More important, still, is why the Court of Appeals reached that conclusion in the Hamdi case. In its answer to this question – if the rationale of the Fourth Circuit is adopted by other federal circuit courts, and eventually the Supreme Court – we can see both the role of the judiciary in the war against terrorism, and the predictable fate of other American citizens who take up arms against the United States.

As the court acknowledged, "Yaser Esam Hamdi is apparently an American citizen. He was also captured by allied forces in Afghanistan, a zone of active military operations. This dual status – that of American citizen and that of alleged enemy combatant – raises important questions about the role of the courts in times of war."

Here’s how the Court of Appeals answered those questions.

First, the court recognized the venerable constitutional principle that there ought to be, always has been, and is now, deference, not abdication, by the judicial branch to the political branches – the President and Congress – in wartime, especially regarding matters of foreign policy, national security, and military affairs. Scores of Supreme Court cases have supported this principle. The deference is rooted in the express grants of constitutional power to Congress in Article I and to the President in Article II, and thus in the fundamental constitutional principle of separation of powers. Contrary to what most liberals and Leftists think, not every governmental decision in our Republic is, or ought to be, subjected to judicial review – especially those concerned with foreign policy, national security, and military matters. (The court also noted that even though our presence in Afghanistan might not fit the conventional description of "war," nonetheless "the nature of the present conflict [does not] render respect for the judgments of the political branches any less appropriate. We have noted that the political branches are best positioned to comprehend this global war in its full context . . . and neither the absence of set-piece battles nor the intervals of calm between terrorist assaults suffice to nullify the warmaking authority entrusted to the executive branches.")

Recognizing a limited judicial role in Hamdi’s attempt, as an American citizen, to employ the Great Writ of habeas corpus to test the legality of his detention, the court addressed Hamdi’s two arguments:

Title 18 U.S.C. § 4001 regulates the detention of United States citizens:

(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

(b)(1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended[,] and the applicable regulations.

(2) The Attorney General may establish and conduct industries, proper government, discipline, treatment, care, rehabilitation, and reformation.

On the basis of this statute, Hamdi and his Leftist sympathizers argued that no Act of Congress specifically authorizes his detention in the Navy brig. Finding "this contention unpersuasive," the Court of Appeals provided three reasons:

(1) In the wake of September 11th , Congress did authorize the President to "use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons:"; (2) Congress did authorize funds for "the maintenance, pay, and allowances of prisoners of war [and] other persons in the custody of the [military] whose status is determined . . . to be similar to prisoners of war"; and (3) "There is no indication that Section 4001 was intended to overrule the longstanding rule that an armed and hostile American citizen captured on the battlefield during wartime may be treated like the enemy combatant that he is."

The second legal argument proffered by Hamdi’s legion of Leftists was that Article 5 of the Geneva Convention requires a threshold determination of his status as an enemy combatant by "a competent tribunal." The Court of Appeals gave short shrift to this specious contention by simply pointing out, correctly, that the Geneva Convention generally, and Article 5 in particular, provided no private right of action but rather left disputes under it to be resolved by political and diplomatic means.

Thus, Hamdi had no case that his detention was unlawful – if he was an "enemy combatant."

The remaining question was whether Hamdi could challenge this designation. In a normal criminal proceeding seeking a writ of habeas corpus, the petitioner can challenge the factual basis of his detention. In the Hamdi case, this would be his opportunity to rebut the factual assertions supporting the government’s "enemy combatant" designation. However, the Court of Appeals ruled "that no evidentiary hearing or factual inquiry . . . is necessary or proper, because it is undisputed that Hamdi was captured in a zone of active combat operations in a foreign country and because any inquiry must be circumscribed to avoid encroachment into the military affairs entrusted to the executive branch."

In sum, the President and Congress possess "war" powers, included in which is the power to designate certain persons as "enemy combatants." In Hamdi’s case – because he was captured in Afghanistan as a member of the Taliban/alQaeda – he was so designated, and incarcerated. As an American citizen, Hamdi had a right to petition for a writ of habeas corpus challenging his detention. Under the Constitution, the courts had a duty to consider that petition. But because Hamdi’s incarceration was pursuant to war powers, under our separation of powers doctrine the courts possessed only a limited review role. That role consisted of ascertaining that the government had made a prima facie showing of facts sufficient to support its "enemy combatant" designation. Or, in the Court of Appeals own words:

One who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such. The privilege of citizenship entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches. At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there.

Accordingly, said the court,

We hold that, despite his status as an American citizen currently detained on American soil, Hamdi is not entitled to challenge the facts presented in the [Special Advisor’s declaration]. Where, as here, a habeas petitioner has been designated an enemy combatant and it is undisputed that he was captured in a zone of active combat operations abroad, further judicial inquiry is unwarranted when the government has responded to the petition by setting forth factual assertions which would establish a legally valid basis for the petitioner’s detention.

Although Leftists and other anti-Americanistas – from peaceniks to the usual array of Carter-like useful idiots – would deny the United States every opportunity to defend herself and are now complaining bitterly about the Hamdi decision, they are on no firmer ground than were Hamdi and his legal minions. The Court of Appeals merely applied settled law (note the unanimous decision). Under the fundamental constitutional doctrine of separation of powers, the judiciary must defer to the political branches in matters of foreign policy, national security and military affairs. Nothing new about that.

Nor is there anything new about an American citizen having the right to petition for a writ of habeas corpus. If the writ is sought in a "deference" situation, the court’s factual inquiry does not – should not – nitpick details. If there is anything new in the Hamdi case, it is the application of these longstanding principles in its factual context: The government’s unquestioned proof that Hamdi was captured in Afghanistan under arms against the United States was a sufficient showing to invoke deference, to justify characterizing Hamdi as an enemy combatant, and to allow him to be held indefinitely without further recourse to civilian courts.

This decision by the United States Court of Appeals for the Fourth Circuit disposes of Mr. Hamdi in particular, and – more important – all future Hamdis: American citizens who are captured on foreign battlefields while fighting against their country. These people will, properly, be designated enemy combatants.

But what about a situation in which – in the words of the Court of Appeals – an "enemy combatant" who is an American citizen is captured "on American soil . . . "? (Emphasis added). The court’s reference was to Jose Padilla, the so-called "dirty bomber," arrested at a Chicago airport and being held in a South Carolina brig.

Padilla will be heard from next. He is American Taliban III.