Jewish World Review August 16, 2002/ 8 Elul, 5762

Charles Krauthammer

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Invoking The Hamdi Rights | Yaser Hamdi, once a hapless Taliban soldier, has made the trajectory from capture in Afghanistan to captivity in Guantanamo to legal celebrity in the Norfolk Navy brig where he now resides. With any luck, Hamdi, like the small-time thug immortalized in the "Miranda rights," may soon ascend to the status of legal adjective.

Hamdi has already had some considerable luck. The reason he is enjoying the amenities of the Norfolk brig rather than sharing the company of his fellow captives in Guantanamo is that it was discovered after his capture that he may be a U.S. citizen, having been born in Louisiana to Saudi parents.

The U.S. military has classified him as an "enemy combatant," and the Bush administration refuses the demands of a U.S. District Court judge who would like him to enjoy the usual rights of American citizens: a lawyer and the presentation of evidence in court to justify his detention.

Each side has its nightmare scenario. If the military is allowed to prevail, warn the civil libertarians, then any American can be seized in the middle of the night, locked up incommunicado and held indefinitely as an "enemy combatant." On the other hand, the administration believes it is absurd, indeed impossible, to fight a war with judges looking over your shoulder demanding evidence, interrogatories, paperwork and lawyers every time you seize and hold an enemy in combat.

Who is right? Both are. Which is why neither should be allowed to prevail.

You don't want to give the military the unrestrained right to knock on your door and pack you away. Nonetheless, as the 4th Circuit Court of Appeals said, in twice overturning District Judge Robert Doumar's granting Hamdi the right to counsel, "the political branches are best positioned to comprehend this global war in its full context." Clearly, the military has to be granted the right to determine who is an enemy combatant in the field. The military's job, after all, is to kill enemy combatants. What kind of logic gives the military the power to kill enemy combatants, at its own determination, but not capture and detain them?

Nor is American citizenship a shield. After all, during the Civil War, Union military commanders apprehended and detained indefinitely tens of thousands of American citizens. If every Johnny Reb had been granted the rights the ACLU wants to give Hamdi, the Union would have depopulated itself sending lawyers to defend southern prisoners.

Moreover, no democracy can conduct a war, which is what we are doing in Afghanistan and elsewhere, without granting a modicum of trust in the judgment and decency of its military commanders.

But how much trust? The Hamdi case suggests a benchmark: as much as is necessary to successfully operate in the field. Hamdi, after all, was not picked up in a midnight raid in Louisiana for no discernible reason. He was captured in Afghanistan carrying a rifle for the Taliban. His designation is tautological. What do you call an armed enemy in a combat zone if not "enemy combatant"?

In such a case, no more judicial review should be required than what the government has already provided in the Hamdi case: a short statement setting out the circumstances of his capture. You should get labeled an enemy combatant and forfeit the normal legal protections depending on the circumstances of your apprehension. Fighting with the enemy in a combat zone is a pretty good threshold.

On the other hand, those who support the government's tough treatment of Hamdi should acknowledge a different standard for a citizen apprehended unarmed in the United States. In that case, legal protections should apply and the burden of proof should be on the military to prove combatant status. That means granting the defendant the right to a lawyer and requiring evidence justifying the detention, presented to a court.

Call them Hamdi rights -- Hamdi being so honored not because he was entitled to them (he does not meet the criteria), but because his case brightly illuminates the problem. And the problem is the classic paradox of a free society conducting war, an enterprise whose very essence is extinguishing with extreme prejudice -- without charges, without lawyers, without appeal -- the most fundamental rights of enemy combatants (life, for starters).

The Hamdi rule would allow the military commanders to do what they have to do in combat. And allow the courts to do what they have to do at home -- ensure the right of Americans seized far from the field of combat to deploy the law in their own defense.

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© 2002, Washington Post Writers' Group