ACLU Files Brief on Behalf of American-Born Taliban Indefinitely Incarcerated without Counsel or Access to Courts

Affiliate: ACLU of Virginia
October 25, 2002 12:00 am

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Fourth Circuit Court of Appeals to hear arguments on Monday, October 28

RICHMOND, VA — The national American Civil Liberties Union and the ACLU of Virginia today filed a friend-of-the-court brief in the Fourth Circuit Court of Appeals on behalf of Yaser Hamdi, an American citizen who was captured in Afghanistan last November and who has been held incommunicado in a military brig in Norfolk for the last six months. Labeled an “enemy combatant” by the Department of Justice, he is being indefinitely jailed in isolation and without any access to counsel.

“There is no legal or constitutional basis for allowing the government to detain someone indefinitely without charges or a trial,” said ACLU of Virginia executive director Kent Willis. “If Mr. Hamdi is a prisoner of war, then treat him accordingly. If there is a basis for a criminal prosecution, then proceed with that.”

The Department of Justice asserts that it falls with the President’s core war powers to decide who is an enemy combatant and how long to detain such persons.

“The United States government cannot invent a new category of detainee who is neither a prisoner of war nor prosecuted for a crime in order to indefinitely detain and deny counsel to any person, especially an American citizen,” said Lucas Guttentag, an ACLU senior staff attorney who helped write the amicus brief. “That is an ominous step that violates the core protections of the Constitution.”

In July, a federal district court judge in Norfolk ruled that the government had not provided sufficient evidence to show that Hamdi was an enemy combatant. The Justice Department appealed that decision to the Fourth Circuit of Appeals, which will hear arguments in the case in Richmond on Monday.

In its brief, the ACLU argues that the government cannot simply designate a citizen as an enemy combatant and jail him indefinitely. A lawful enemy combatant must be treated as a prisoner of war in accordance with the Geneva Conventions. An unlawful enemy combatant must be accused of a violation of law, allowed legal representation and tried in a court of law.

A copy of the ACLU’s amicus brief can be found at: /node/35445

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