In effect, the Bush administration insists, any American can be jailed without charge, without bail, without a hearing and without a lawyer, forever, if necessary, on the say-so of a mid-level Pentagon official named Michael H. Mobbs.
Mobbs is described as special adviser to the undersecretary of defense for policy. Mobbs decides who is an "unlawful enemy combatant," a phrase without any real legal meaning but one the Justice Department cites as reason enough to indefinitely hold a 21-year-old American-born Saudi incommunicado in a windowless cell.
And what precisely makes a person an "unlawful enemy combatant"? The government can't say. National security, you know.
Yaser Esam Hamdi was captured in Afghanistan and shipped to Guantanamo Bay, Cuba. He was then sent to a Navy brig in Norfolk, Va., when his interrogators discovered that by virtue of being born here he could claim American citizenship - and, one would think, the fundamental constitutional protections like access to a lawyer - that go with it.
Federal Judge Robert Doumar, who is emerging as something of a hero in this chilling assertion of unchecked executive power to imprison, has twice ordered that Hamdi be allowed to see a federal public defender.
The government appealed, and the circuit court ordered Doumar to give the Justice Department a greater opportunity to make its case. The government got that chance Tuesday, and Doumar not only seemed unconvinced, he seemed disgusted.
The government case was a sparse two-page "declaration of facts" from Mobbs that the judge found shot through with "substantial" omissions. Not surprisingly, Doumar concluded that the omissions were because the government had something to hide. Nonetheless, said the government, that was all the judge was getting.
Doumar said that the Hamdi case was without precedent. Nowhere could he find a case where a prisoner was subjected to such an abrogation of rights. Hamdi, who hasn't been accused of anything, has fewer rights - actually no rights - than a convicted felon.
Said the judge, "I do think that due process requires something other than a basic assertion by someone named Mobbs that they have looked at some papers and therefore have determined that (Hamdi) should be held incommunicado."
Doumar says he will rule again in a few days. When he does, he should not only reassert Hamdi's right to a lawyer but order him brought before the court to be charged, released or sent back to Guantanamo as a prisoner of war.
A fundamental principle is at stake here. Because of the Mobbs memo, the judge asked the government: "The Constitution doesn't apply to Hamdi?" The government declined to answer, but we will: Yes, it does. It's frightening that the judge even has to ask.
