But the feds had to say plenty Thursday about Yaser Esam Hamdi, the U.S. citizen who, like Padilla, has been put on ice in military lockup as an "enemy combatant."
And what the government said about Hamdi in court papers filed with the 4th U.S. Circuit Court of Appeals seems like a prescient preview of what the feds are likely to say about Padilla, if and when a federal judge requires them to account for his whereabouts at some point in the future.
The Hamdi case is before the federal appeals court because his father and a public defender in Virginia have filed motions on behalf of the 21-year-old Louisiana-born man seeking access to him at the Norfolk Naval Brig. Hamdi apparently has been held in military custody for months after he was captured last fall as the "second American Taliban" (John Walker Lindh being the "first") in Afghanistan. After he was captured, the feds labeled him an "enemy combatant" in much the same way they have so labeled Muhajir.
A federal district judge has twice ruled that Hamdi's lawyers should be given private, unmonitored access to him. "Fair play and fundamental justice," U.S. District Judge Robert G. Doumar wrote on May 29, "require nothing less" than permitting Hamdi to at least meet with his attorneys. In order to prevent this meeting to take place, the Justice Department immediately appealed that May 29 order and then immediately appealed a similar order entered by Judge Doumar on June 11.
The Fourth Circuit may or may not reverse Judge Doumar — we should know pretty soon — but the arguments presented by the Justice Department in support of a reversal shed as much light as any I've seen on why the Administration thinks it is imperative to classify its own citizens as "enemy combatants" and then put them on ice indefinitely. Indeed, reading through the government's "Emergency Motion for Stay Pending Appeal," it's easy to forget it's a case about Hamdi and not about the more renowned Padilla.
First, the feds contend that the courts have no business second-guessing these sorts of decisions by the Executive Branch. "A court's proper role in this context," government attorneys wrote Thursday, "is not to assume for itself the quintessentially military — and Executive — task of determining who is as (sic) an enemy combatant and should be detained as such, but rather at most to confirm, applying appropriate deference to the military under the separation of powers, that the military has validly determined that an individual is an enemy combatant." In other words, the lawyers are saying "back off, judge, and if you aren't willing to back off, at least get out your rubber stamp."
Next, the Administration argues that the detention of "enemy combatants" like Hamdi (and, likewise, Padilla) "serves the obvious yet vital objective of preventing enemy combatants from continuing to aid the enemy, and at the same time facilitates intelligence gathering that is critical to the prosecution of any war effort." The trial judge's two access orders, federal lawyers wrote, "directly" implicate "vital national security concerns" by directly interfering with "ongoing efforts of the United States military to gather and evaluate intelligence about the enemy, its assets, and its plans, and its supporters."
Then, sensing that any judge worth his or her salt will inquire a little further into those general assertions, the Justice Department attached to its "Emergency Motion" the affidavit of U.S. Army Colonel Donald D. Woolfolk, whose written testimony offered a little more insight into what the Administration is worried about.
"Intelligence saves lives," Colonel Woolfolk told the court, and a "fundamental tool used in the gathering of intelligence is interrogation...Loss of this tool, in any respect, would undermine our nation's intelligence gathering efforts, thus crippling the national security of the United States."
The United States doesn't use "corporal means of coercion" (that's torture to you and me, folks), Col. Woolfolk wrote, and instead "has adopted a humane approach to interrogation that relies upon creating an atmosphere of dependency and trust between detainees and the intelligence-gathering staff assigned to that detainee...Interrogation leading to the development of meaningful and usable intelligence is not static...Under such circumstances, the need to maintain the tightly controlled environment, which has been established to create dependency and trust by the detainee, is of paramount importance. Disruption of the interrogation environment, such as through access to a detainee by counsel, undermines this interrogation dynamic."
I'm not sure there are too many federal judges who will be willing to tangle with Col. Woolfolk when it comes to the importance of uninterrupted interrogations of suspected terrorists. But the legal inquiry is going to be a little different.
The legal inquiry is likely to presume that the colonel's conclusions are sound but must be balanced against any constitutional rights that inure to the detainee. In the case of non-citizens, the balance in favor of the feds is pretty much a given. In the case of citizens like Hamdi — and Padilla, for that matter — the balance may be a little more delicate. It's not inconceivable that a judge would say "so what?" to Col. Woolfolk and the Administration, and then order the government to allow at least some sort of attorney access to citizen-detainees.
This is complex stuff. But at least you'll recognize it the next time you see it — when the government makes the same arguments in the future case of Padilla v. Rumsfeld.
By Andrew Cohen