Reviewing the President's authority to designate an American citizen an "enemy combatant" and detain him indefinitely in an American military brig without charges, trial, or private access to counsel. DECIDED
Yaser Hamdi is an American citizen who has been designated as an "enemy combatant" by the President after being captured by the Northern Alliance while allegedly fighting with the Taliban in Afghanistan. For the past two years, he has been held in military brigs, first in Virginia and then in South Carolina, without charges or trial and, until very recently, without any access to counsel. The government's position is that it can confine Hamdi in this condition indefinitely so long as it presents "some evidence," not subject to cross-examination or rebuttal, that supports the President's "enemy combatant" designation. The ACLU's friend-of-the-court brief points out that arbitrary executive detention has been seen as inconsistent with the rule of law since at least the Magna Carta. More specifically, we argue that: (1) the President lacks authority to designate American citizens as "enemy combatants" and subject them to indefinite military detention; (2) even if such authority exists, Hamdi is entitled to more due process than he has so far received to challenge the basis of that designation; (3) Hamdi must either be released or charged criminally if he is not an "enemy combatant;" and (4) Hamdi's treatment as an "enemy combatant" is in any event unlawful because the government has failed to comply with the Geneva Conventions.
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