Alphonse And Gaston Justice

GENERIC terrorism trials AP / CBS

CBSNews.com Legal Analyst Andrew Cohen also watches major cases for CBS News.

The most important terrorism-related case to arise out of last September's attacks on America is stuck for the moment in the procedural mud. And each day that it remains in legal purgatory — between the trial court and an appeals panel — represents another day when a U.S. citizen's constitutional rights are neither defined nor refined to meet the current uneasy conditions that surround the ongoing war on terror. Another day, incidentally, that this particular citizen must spend in military confinement, incommunicado even from and with his own attorneys.

U.S. District Judge Robert G. Doumar, who Thursday should have presided over a substantive hearing in the case of Yasser Esam Hamdi, instead decided on Wednesday to postpone the hearing until he gets more guidance from his bosses on the 4th U.S. Circuit Court of Appeals.

The appellate court, meanwhile, has so far in the case given two very clear signals about how Doumar ought to proceed, each of which contradicts the other. After you, Gaston. No, no, After you, Alphonse.

In June, the 4th Circuit stayed the case pending its review of Doumar's decision that Hamdi ought to at least be able to meet with his attorneys so they all could evaluate whether and to what extent the U.S.-born, Saudi-raised Taliban fighter could assert constitutional claims challenging his confinement by the military.

Then, in July, the appellate court reversed Doumar, ruling that the administration, indeed, had wide discretion to categorize people like Hamdi as "enemy combatants" and then lock them up and throw away the key.

But the appellate court also remanded the case back to Doumar so that he could develop a factual record about what considerations the Administration had evaluated before classifying Hamdi in such a manner. It was this remand that created the need for the hearing that was supposed to take place this week.

Problem is, the appeals court never dissolved the initial stay it had placed over the case in June. So when Doumar got geared up this week to tackle the case's core constitutional issues, he realized that he had both a stay ordering him to halt and a remand ordering him to proceed.

You can imagine, then, why the trial judge would essentially throw his hands in the air and punt the case up to his bosses, especially after those same bosses had so harshly reprimanded him in their July order for jumping the gun and ordering access to Hamdi.

"To proceed under such ambiguity," Doumar understatedly wrote in an order released Wednesday, "would simply divert attention away from the substance of this case toward further procedural wrangling." What the judge meant, really, is that he didn't want to waste his time or anyone else's tackling the merits of the case if the 4th Circuit wasn't ready for him to do so.

So now, again, everyone is waiting for the 4th Circuit to offer clarity and direction in a case that has been sorely lacking in both.

Some of this confusion is the fault of the judges, to be sure, who clearly should be less obtuse about what they are doing and why. But some of this confusion is based upon the novelty of Hamdi's situation and his legal claims. No one on any side of this fight has a lot of experience handling the intersection between individual constitutional rights and a president's war powers. Normally, a few weeks here and there wouldn't matter much at the beginning of a typical constitutional challenge. But try telling that to Hamdi, who at some point may actually convince the courts to permit him access to his attorneys or even more substantive relief.

Indeed, you would think, given Hamdi's present status and the importance of his claims, that the federal judiciary would be more inclined to move quickly toward resolving the dispute one way or another. Anyone who has followed a death penalty case closely — anyone who remembers the way the federal courts handled the Elian Gonzalez saga or the Florida recount fiasco — knows how quickly judges can move to effect justice when they decide that they want to or need to. But Hamdi sits in the brig, cut off from the world, while his judges fiddle not over the profound issues raised by his case but by procedural technicalities which law clerks ought to have been able to resolve long ago.

That alone ought to tell you all you need to know about how this case is likely to turn out.

By Andrew Cohen
  • Lloyd Vries

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