Feds Win Big On Citizens' Rights

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

The unanimous decision by the three-judge panel of federal appeals judges supports from soup to nuts the government's controversial position on the issue of "enemy combatants." In particular, the court agreed with the Administration that Yaser Esam Hamdi, the Louisiana-born, Saudi-raised man captured fighting in Afghanistan about one year ago has virtually no recognizable constitutional rights.

No right to visit with his own attorney. No right to substantively challenge the evidence against him. No right, even, to be charged with a crime as opposed to being kept in a military brig, cut off, indefinitely, from the rest of the world.

Over the objections of some 139 law professors who participated in the case as "friends of the court" on behalf of Hamdi (only seven law professors signed on in support of the government's position, if that tells you anything), the appellate panel declared that federal judges must defer greatly to the executive branch when it comes to matters arising "in the arena of combat."

The President's war powers, the court noted, include his power "to detain those captured in armed struggle" and the courts are particularly unsuited "to supervise the conduct of overseas conflict" especially without the "`clear conviction that they are in conflict with the Constitution or the laws of Congress constitutionally enacted.' "

The detention of enemy combatants like Hamdi, the court determined, serves two "vital purposes. First, detention prevents enemy combatants from rejoining the enemy and continuing to fight against America and its allies. Second, detention in lieu of prosecution may relieve the burden on military commanders of litigating the circumstances of a capture halfway around the globe. The judiciary is not at liberty to eviscerate detention interests directly derived" from the President's express war powers in the Constitution.

Having recognized the President's extraordinary power to declare as "enemy combatants" people like Hamdi, and then having recognized their own legal limitations on second-guessing that executive branch power, the appeals judges ruled that they would not and could not inquire further into the rationale offered by the government in support of the Hamdi detention.

When first challenged, the government had argued that there was no legal requirement that it provide a factual basis for the President's decision. Later, the government provided a barebones factual "declaration" by a fellow named Michael Mobbs, a "Special Advisor to the Under Secretary of Defense for Policy.

The Mobbs Declaration, as it came to be known, raised more questions than it answered but apparently it answered enough questions for the panel of Hamdi judges. "... (We) will not require the government to fill what the district court regarded as gaps in the Mobbs affidavit,' the Hamdi court ruled, the factual statements by Mobbs "if accurate, are sufficient to confirm that Hamdi's detention conforms with a legitimate exercise of the war powers of the President and Congress.

Of course, the "if accurate" clause of that last statement tells you what you need to know about the level of deference the court was willing to give to Mobbs and the President.

So what does the ruling mean? Well, it certainly is bad news for Hamdi, who now has to hope that the full 4th Circuit will reverse what its three-judge panel just decided. That is about as likely as President Bush himself sending Hamdi a cake with a file in it.

Hamdi also can hope that the United States Supreme Court decides to get involved in the case. If that happens - and there's a reasonably good chance that it will - at least Hamdi will have going for him the notion that the Justices won't be so willing to defer to their colleagues in the executive branch.

The Hamdi ruling also has potential ramifications for Jose Padilla, the alleged dirty bomb suspect who also has been designated by the President as an "enemy combatant." Like Hamdi, Padilla now is being held incommunicado in a military brig. Like Hamdi, Padilla isn't likely to be charged with a crime anytime soon.

But, unlike Hamdi, Padilla was apprehended in the United States. Is that enough to make a legal difference? I don't know. But Hamdi's judges clearly had the Padilla case in mind when they cautioned in Wednesday's ruling that "any broad or categorical holdings on enemy combatant designations would be especially inappropriate.

"We have no occasion, for example, to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding."

That's judge-speak from Hamdi's judges to Padilla's judges that the latter are perfectly free to completely ignore the ruling penned by the former. But if the Padilla court comes down differently than the Hamdi court has, it makes it all the more likely that the Supreme Court itself will have to resolve the difference.

So this saga - of Hamdi in particular and of enemy combatants in general - is not over, not by a longshot. But today is a very good day, probably the best day yet, in the government's legal war on terror.

The Administration could not have said it better itself and now can point to the Hamdi ruling as the clearest signal yet that the courts are willing to roll over and, for the time being, permit the President to prosecute the war at home and abroad, against enemies foreign and domestic, unfettered by the notion that constitutional rights can sometimes be bothersome things.

By Andrew Cohen