For Now, Hamdi Lingers in Limbo Land
W A S H I N G T O N, Aug. 16 -- At this writing we still have not heard from District Court Judge Robert Doumar in Norfolk, Va., following a remarkable hearing Tuesday morning on whether the government has provided sufficient reason to hold Yaser Esam Hamdi, a putative U.S. citizen, indefinitely and without access to legal counsel — on the grounds that the U.S. military has declared him to be an "enemy combatant."
But one would not be overly foolhardy to predict that Judge Doumar will once again rule against the government and order that Hamdi must have access to a lawyer; and, further, that the 4th Circuit Court of Appeals will again slap down Judge Doumar and find for the government.
In short, this case is inevitably heading for the Supreme Court, and there are some lawyers who are holding their breath.
But part of what makes this clash so remarkable is that Judge Doumar, at least superficially, seems to represent the very opposite of the bleeding-heart civil libertarian.
He is a President Ronald Reagan appointee who served two years in the U.S. Army; a white male Virginian; born, bred and schooled in the Old Dominion. And yet Doumar was visibly unhappy, frustrated, even squirming on the bench in his discomfort with what he was required to do.
For the 4th Circuit had ordered him, in reconsidering the Hamdi detention, to look at nothing beyond the now-infamous "Mobbs Declaration," a two-page affidavit filed by the Defense Department on behalf of one Michael H. Mobbs, identified as a special adviser to the under secretary of defense for policy. And for Doumar it was clear that the Mobbs Declaration was a masterpiece of evasion and omission.
For more than two hours he pounded away at the government's case, often sarcastic, at times unfair, in his castigating of the Justice lawyer, Gregory Garre, an assistant to the solicitor general, whose office has taken an unusually close interest in all Sept. 11-related legal proceedings.
But as one observer noted, Garre clearly had his marching orders not to give anything away, and so he contributed to Doumar's frustration by conspicuously refusing to respond to many of his queries.
The hearing began with Doumar piously declaring he would absolutely abide by the strict orders of the 4th Circuit; "this Court recognizes that the 4th Circuit has made clear that the government is entitled to considerable deference ..." But he pointedly added that the 4th Circuit had also stated its refusal summarily to embrace a sweeping assertion that any citizen could be detained indefinitely merely "on the government's say-so."
But Garre had barely begun his argument before the judge pounced. "Has the writ of habeas corpus been vacated? Can the president do anything to eradicate habeas corpus? ... If the writ wasn't suspended, then why would just the decision of the executive be sufficient?"
Garre attempted to respond but the judge quickly interrupted: "So the Constitution does not apply to Mr. Hamdi?"
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