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The rights of 'enemy combatants'.

Article Excerpt
The question in Hamdi v. Rumsfeld is whether a U.S. citizen, captured by Northern Alliance forces in Afghanistan and declared an "enemy combatant" by out government, can be held indefinitely, incommunicado, and without the right to habeas corpus. (1)

After Yaser Hamdi's capture, he was transferred to a Navy brig in Norfolk, Virginia, where he remains in solitary confinement without access to counsel. His father, as next friend, filed a habeas corpus petition on his behalf. The government moved to dismiss the petition, filing a statement by a Defense Department official named Michael Mobbs that Hamdi had "traveled to Afghanistan," become "affiliated with a Taliban military unit and received weapons training," and was captured in a combat zone with an AK-47 rifle. (2) The government therefore considered him an enemy combatant who could be held indefinitely as neither a prisoner of war (POW) nor an ordinary arrestee.

The district court, after concluding that the Mobbs affidavit "falls far short" of supporting Hamdi's detention, ordered the govermnent to turn over essentially all of its information concerning Hamdi and the circumstances of his capture. (3) The Fourth Circuit reversed this order and dismissed the habeas corpus petition. (4) Later, the court denied a request for a rehearing en banc, and the U.S. Supreme Court has granted certiorari.

The Fourth Circuit began its opinion with a disquisition on the relative powers of the president and the judiciary in wartime, noting that the president has the power to "detain those captured in armed struggle" and to "deport or detain alien enemies during the duration of hostilities." (5) Furthermore, "the Supreme Court has shown great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, and military affairs." (6)

With this deference in mind, the court addressed the two main arguments raised in Hamdi's petition. First, that he had been detained in violation of 18 U.S.C. [section] 4001, and second, that he was entitled to be treated as a prisoner of...

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