The 4th Circuit ruled American Born Yaser Hamdi is being lawfully held by the Administration as an enemy combatent. 54 page opinion is here. We haven't read it yet, we're at work for several more hours yet, but we understand the Court ruled he had the right to judicial review of his detention and his status as an enemy combatent--but that the Court will give great deference to the Executive branch's decision.

"The court ruled that as an American citizen, Hamdi had the right to a judicial review of his detention and his status as an enemy combatant. But because the Constitution affords the executive branch the responsibility to wage war, the courts must show great deference to the military in making such determinations."

Update: Reader Stan K. astutely comments that "Judge J. Harvie Wilkinson just got himself some extra brownie points with the White House Re: the Supreme Court."

Nat Hentoff thankfully will not let up on the Yaser Hamdi case. Read his new column in the Village Voice titled, George W. Bush's Constitution: Does It Take a Lifetime to Question a Man? Hentoff begins,

The imprisonment of "enemy combatant" Yaser Esam Hamdi in a naval brig in the United States is not a matter of concern to most Americans, since they do not know of Mr. Hamdi's isolation from the Bill of Rights, and might not care if they did. But the Supreme Court will ultimately decide whether George W. Bush's Constitution will replace—in significant parts—the Constitution that most Americans are also not familiar with.

He quotes from the excellent amicus brief filed on behalf of Hamdi by the National Association of Criminal Defense Lawyers (NACDL):

Another point, this one entirely ignored by the media, is in an amicus brief to the Fourth Circuit Court of Appeals by the National Association of Criminal Defense Lawyers: [The government claims] that Mr. Hamdi 'surrendered' not to U.S. forces, but to a group of counter-insurgent Afghanis popularly called the 'Northern Alliance.' However, [the government then proceeds] to repeatedly claim that Hamdi was 'captured'—an important distinction when evaluating his legal status vis-à-vis the United States and under international law. One who surrenders before engaging in 'combat' can hardly be classified as a 'combatant' logically, much less legally."

Hentoff ends his column with

I will follow this case through the Fourth Circuit Court of Appeals and then, I expect, to the United States Supreme Court. Those nine men and women will decide whether the essential liberties in the Framers' Constitution have been removed by George W. Bush. It's a pity the Democratic Party cares much less about civil liberties than about Bush's tax cuts.

Hentoff is no liberal, but he is a staunch supporter of civil liberties, and we appreciate his dedication to the preservation of constitutional rights for all persons.

The issue in the Hamdi case essentially concerns the detaining of American citizens as so-called "enemy-combatants" when no criminal charges are brought, when Congress has not officially declared a war, and when they have not been declared "prisoners of war." Is it legal for the President, as chief executive, on his own to withold basic constitutional rights from these people, such as the right to consult with a lawyer?

The Judge in the case, Richard Doumar, has previously opined in a written order,

"This case appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without charges, without any findings by a military tribunal, and without access to a lawyer."

The Government may be using Hamdi as a test case to see just how far it can go. Let's hope the courts keep them on a tight leash.

On Monday, a U.S. federal judge endorsed the decision by a Magistrate Judge on Friday to release of one of four brothers in Texas who were arrested last week and charged with aiding the Palestinian militant group Hamas. The Judge and Magistrate Judge found that the government had not proven the man to be a flight risk.

A second brother was ordered released Friday. but will stay in detention because like a third brother, he is also charged with overstaying his visa. They will appear in court again on January 10.

"The four brothers run a computer company called InfoCom Corp. and live in suburban Dallas with their families." There is a fifth brother, but he is already in jail, serving a sentence in an unrelated matter.

You can read the Indictment here.

The U.N. inspectors suspect an aircraft may have been converted for chemical weapons use. On the BBC world edition.

From CNN--Iraqi newspaers are saying that the U.S. and Britain are using the weapons inspections as a pretext to start war.

"French human rights groups yesterday condemned the decision on Wednesday by Germany and France to hand over to the US evidence for the trial of alleged al-Qaeda terrorist Zacarias Moussaoui, arguing that it could be used to support his execution."

"Mr Moussaoui's French lawyer, Francois Roux, also rejected the two governments' official argument that the evidence provided to the US would not be used to help condemn Mr Moussaoui to death. "France has just reintroduced the death penalty by proxy," he told a news conference in Montpellier, southern France. "This time it won't be the guillotine but the electric chair."

The difference between crime and terrorism appears to be merely "trust me." according to this article today in Legal Times called "Walking a Fine Line."

"What's the difference between a criminal and an enemy? A crime and an act of terrorism? One year after President George W. Bush launched the war on terrorism, the dividing line is murkier than ever. The government still hasn't articulated a standard for how it decides whether someone will face criminal charges in federal court or be held indefinitely and incommunicado in a military jail, as is the case with U.S. citizens Yaser Hamdi and Jose Padilla."

From USA Today: "Moussaoui's link to 9/11 is in doubt : Defendant met with planner but could have been involved in separate terror plots, officials say"

This is what we've been saying all along, as recently as yesterday and much earlier, here and here:

A quote from our earlier post:

"He has admitted to being a member of Al Qaeda, and to having knowledge about who committed the attacks. In our opinion, that is not enough to make him a co-conspirator in the Sept. 11 attacks.

One more thing: If the Government's evidence is that Moussaoui was a member of a different conspiracy than the one charged in the Indictment, the jury will be instructed to acquit on the charged conspiracy. They can't win by proving a different conspiracy than the one charged in the Indictment.

So if Moussaoui was being used by Al Qaeda to commit some other terrorist act, e.g. one involving crop dusters on another day in another city or if he hadn't yet been activated, or if they decided his crummy flight training record didn't warrant him being involved in Sept. 11, this case is no slam dunk for the Government. In our opinion, of course."

(USA article via How Appealing)

Remember James Ujaama, the man arrested in Denver and charged in Seattle with materially supporting a terrorist organization for allegedly scouting for a terrorist training camp in Oregon?

"The Seattle Post Intelligencer today offers clips from a video detailing Ujaama's vision for Islamic state :

"Seattle terrorism suspect James Ujaama envisioned a perfect Islamic state, where believers could live separately from Christians and Jews, attend military training camps, and where homosexuality and pornography would be outlawed."

"The place: Afghanistan."

"There are many Muslims who have forgotten that the Jews and Christians are our enemies," Ujaama says in a 2-½-hour video obtained by The Seattle Times, small portions of which were recently revealed on the Internet."

"The video, shot sometime before the Sept. 11, 2001, attacks, gives the first public glimpse into Ujaama's beliefs as told in his own words, and tells of at least one of his trips to Afghanistan. It also provides a look at his association with Abu Hamza, whom federal prosecutors in the United States have targeted for indictment on terrorism charges."

"At least one thing Ujaama says, however, casts doubt on an assertion made by prosecutors: that Ujaama traveled to Afghanistan to attend an al-Qaida training camp. In the video, Ujaama doesn't say why he went, but he states he did not attend jihad training. "I wish I had," he says. "

Ujaama's lawyer, Peter Offenbecher, says the video is consistent with Ujaama's claim that he went to Afganistan for charitable purposes: to deliver laptops to a girls school. "Ujaama asserts in the video that it was a myth that women were oppressed under Taliban rule and received no education. "

Offenbecher said the government has produced no evidence so far that Ujaama went to Afganistan to receive jihad training.

[we found the article on Instapundit-- he's on a roll today.]

Government officials are leaking again. This time its about details of the military's interrogation of Ramzi Binalshibh, the roomate of Mohammed Attah who was captured in Pakistan a few months ago.

Officials say Binalshibh has tied Moussaoui to Khalid Sheik Mohammed, alleged to be a senior Al Qaeda leader and a major planner of the 9/11 attacks.

A review of the information provided leads us to conclude that Moussaoui, as he claims, was a member of Al Qaeda but was not involved in the commission of the 9/11 attacks. Still at issue is whether he was involved in their planning.

"Authorities have debated Moussaoui's role in the suicide attacks since Vice President Cheney named him as a possible 20th hijacker a month after the terror strikes. Binalshibh has told investigators that he and [Khalid Sheik]Mohammed ultimately lost confidence in Moussaoui's discretion and decided to use him in the hijack plot only as a last resort, the sources said."

Khalid Sheik Mohammed is still at large. The Government alleges that Moussoui met with him in Afghanistan in the winter of 2000, and Binalshibh supposedly confirms this.

"Binalshibh's disclosures place Moussaoui in direct contact with Mohammed, believed to be al Qaeda's director of operations, who allegedly spent two years planning the terror attacks. Mohammed provided Moussaoui with names of contacts in the United States, and Binalshibh gave him an e-mail address and wired him money to advance the plot, Binalshibh has told interrogators. "

"Binalshibh has told interrogators that he and Mohammed talked by phone in July, and discussed their concerns that Moussaoui was drawing attention to himself, acting in conspicuous ways and talking too much. Mohammed told Binalshibh that he did not have a lot of confidence in Moussaoui and the two decided they would use Moussaoui in the planned hijackings only if they really needed him, and would give him specific instructions at the last minute."

In other words, if Binalshibh is being quoted correctly, and if what he says is true (big "ifs," in our mind), it seems like Moussaoui may have originally been considered for a part in the 9/11 attacks by Mohammed, but his flunking flight school and his talking out of turn made him an undesirable liability to the planners, who decided he would only be used as a last resort. Apparently, they got by without him.

The Government is trying mightily to avoid having to produce Binalshibh for a witness interview with Moussaoui's defense team. Moussaoui has claimed Binalshibh could provide exculpatory information as to him. It seems like the Government is trying to debunk that theory in the media, by putting out details of Binalshibh's alleged interrogation which incriminate, rather than exculpate Moussaoui, at least on the conspiracy charges.

For the conspiracy charges, it is enough if Moussaoui entered an agreement with the others to launch the 9/11 attacks. It wouldn't be necessary for the Governrent to prove Moussaoui actually took part in them, so long as they could prove an "overt act" committed by Moussaoui in furtherance of the unlawful agreement, such as receiving wire transfers of money to be used in the attacks.

But, we're a long way from that point. None of this information is contained in any public court records, just in the media, and it is all being provided by anonymous sources.

The Bush Administrations's plans for military tribunals are nearing completion.

Supposedly only a small number of the 625 detainees at Guantanamo Bay, Cuba, and the 100 or so being held in a U.S. military compound in Bagram, Afghanistan, will be tried by tribunals. Plans call for the tribunals to be held outside the U.S. No information has been released on which detainees will be tried first. The President will have to identify those to be tried by tribunal by name.

Justice Department officials say they do not intend to remove Moussaoui from the federal court system in favor of a trial by tribunal. They are concerned that Moussaoui would challenge a move on the grounds that the tribunals don't apply to people inside the U.S. Such a claim could subject the tribunal process to a constitutional challenge, which clearly the Bush administration prefers to avoid.

"The tribunals would be held amid extremely tight security, U.S. officials said, with some witnesses possibly testifying from remote locations or with electronically altered voices. Defendants will have the right to see evidence against them, unless it is classified, and will be given military counsel. A two-thirds majority of judges is required for conviction, but a unanimous vote is needed to impose the death penalty."

"Pentagon attorneys are in "the process of identifying potential key personnel" for the military commissions, according to a senior defense official. The official would not specify which personnel are being screened, but the military must select judges, prosecutors and defense attorneys before a tribunal can be held."

Bush signed an executive order last November authorizing the tribunals. A first draft of the regulations governing the proceedings was published by Defense Secretary Donald H. Rumsfeld last March.

"The tribunals would be held amid extremely tight security, U.S. officials said, with some witnesses possibly testifying from remote locations or with electronically altered voices. Defendants will have the right to see evidence against them, unless it is classified, and will be given military counsel. A two-thirds majority of judges is required for conviction, but a unanimous vote is needed to impose the death penalty."

The selection of judges, prosecutors and defense attorneys will be done by the military. A senior Bush official told the Washington Post that " the screening should not be taken to reflect a decision to proceed with the military commissions, but said it is necessary for the Pentagon to be in position to move ahead should the president decide to do so."

"Pentagon lawyers are also drafting final implementing regulations needed to initiate the military tribunals. Officials in the Pentagon general counsel's office said they are completing work on specific charges that could be lodged against defendants. U.S. officials have said previously that the charges would include violations of the laws of war and possibly other offenses."

The timing is believed to be reflective of the military's success with obtaining information from four individuals in particular:

Abu Zubaida, the alleged high-ranking al Qaeda leader whose information led to the arrest of Jose Padilla in Chicago, and who authorities suspect was scouting locations in the U.S. for a dirty bomb attack;

Omar al-Farouq, "the alleged Southeast Asia facilitator for al Qaeda, and Muhammad Darbi, an alleged member of a Yemeni cell";

Muhammad Darbi, an alleged member of a Yemeni cell; and

Ramzi Binlashibh, who was captured in Pakistan after acknowledging his participation as a planner of the Sept. 11, 2001, attacks in an interview with the al-Jazeera television station a few months ago.

The military says all of the above have provided information on other leaders and members in Al Qaeda. Apparently they believe the information obtained from these detainees is credible enough to rely upon for purposes of obtaining a conviction in a military prosecution.

"The White House is weighing a proposal to abandon the Justice Department's prosecution of Zacarias Moussaoui in a federal court, remove him from the United States and place him before a military tribunal in Guantánamo Bay, Cuba, administration officials say."

"They said the proposal to shut down the civilian prosecution of Mr. Moussaoui, the only person charged in an American court with involvement in the Sept. 11 attacks, reflected a growing fear in the government that legal problems faced by the Justice Department in pursuing the case might be insurmountable."

This is another end-run around justice. The White House and the Pentagon are making up the rules as they go along. They are afraid, as we predicted they would be months ago, that they will have to make Ramzi bin al-Shibh, arrested in Pakistan months ago and held in secret detention ever since, available to Moussaoui to interview. Moussaoui's Indictment is replete with references to bin al-Shibh as a planner of the Sept. 11 attacks. He could have critical information that would show Moussoui was not involved in the September 11 attacks. While Moussoui has admitted in Court that he is a member of Al Qaeda, he has insisted from the beginning that he had nothing to do with the attacks. We think the information revealed to date supports his position.

Rumsfeld and the military think it would be better to drop the federal action, move Moussaoui to Guantanamo Bay, Cuba, and try him under Bush's proposed military tribunal rules. Moussaoui, as a non-U.S. citizen, may be subject to such proceedings.

We believe the Moussaoui case has been mishandled since the beginning. As Seymour Hersh posited in an excellent New Yorker article back in September, Moussaoui should have been treated as a witness, not a defendant.

We stated then and continue to believe that:

"... what if the Government has to choose between Moussaoui and Binalshibh? Binalshibh seems to be far more critical to the Government in terms of his being able to supply information about the attacks. Moussaoui has been nothing but a thorn in the Government's side since his case started."

"Maybe a compromise could be worked out where the Government drops the death penalty request against Moussaoui if Moussaoui pleads and agrees to a life sentence thereby avoiding the need to call Binalshibh at all."

"Whatever happens, it should occur publicly. The Government should not be allowed to hide behind a veil of secrecy in this case as it has with Padilla and Hamdi and the other detainees."

Back to today's New York Times article:

The Pentagon and the C.I.A. prefer to keep suspected terrorists in isolation and subject to interrogation, without access to defense counsel.

"Civilian and military lawyers said it was unclear whether the court-appointed lawyers assigned to advise Mr. Moussaoui would be able to prevent the administration from moving him to Cuba."

"A decision to abandon the Justice Department's case could create a predicament for Mr. Moussaoui's court-appointed civilian lawyers, who would have to decide whether they had any standing to continue to represent him and whether they wanted to try to keep him from being transferred to military custody."

"Criminal defense lawyers not associated with the case suggested that the court-appointed defense team might try to press Judge Brinkema to block Mr. Moussaoui's transfer until the federal courts decided the constitutionality of the government's use of the "enemy combatant" designation for Qaeda figures."

"The issue has been the subject of a variety of court challenges since Sept. 11, most prominently in a case involving the Justice Department's efforts to deny a lawyer to Yasser Esam Hamdi, an American-born Saudi who was captured on the battlefield in Afghanistan and is being held incommunicado in a Navy brig in Virginia."

Frank Durnham, the Federal Defender in Virginia who serves as one of Moussoui's standby counsel, said the dismissal of the federal case will be a win for Moussaoui and that there may be nothing the defense can do to thrwart the move from federal court to military tribunal. We don't see how it could be a "win" if the result is that Moussoui will be tried in a tribunal with far fewer rights than those accorded in a federal court trial.

Meanwhile, Moussaoui's mental health is again at issue. His mother is pressing for a new psychiatric examination. "Every time I see him, he is deteriorating — getting worse and worse," Mrs. el-Wafi said, speaking through an interpreter. "He can't think rationally. He doesn't talk rationally. He keeps saying, `I am going to be out very soon.' "

Germany today asked President Bush to drop the death penalty charge against Zacarias Moussaoui. Interior Minister Otto Schily "suggested that the move might be the only way to end the dispute over Germany's failure to provide the United States with its intelligence files on the terror suspect."

"The principle is we can't provide information which would lead to the death penalty," Mr. Schily said. "We have to stick to our Constitution. You have to stick to your laws."

Both German and U.S. officials described Germany's intelligence file on Moussaoui as "extensive."

So what is more important, getting as much information as we can on Al Qaeda and the terrorists so we can learn how to better prevent future attacks, or insisting on the final retribution for Moussoui and being denied the information? What if Germany's information would help us discover the nature or location of the next attacks that the Government keeps telling us are going to occur? What do we lose by letting Moussaoui spend the rest of his days in virtual isolation in a maxium security federal penitentiary like Admax in Florence, Colorado rather than die quickly by lethal injection?

Our insistence on killing Moussaoui at the expense of receiving Germany's information seems to us like the proverbial cutting off our nose to spite our face. As we typed that, we wondered about the exact meaning of that expression. We looked it up, and here is the meaning we found: "It means harming oneself, perhaps much more than the person one is trying to hurt." The phrase fits perfectly.