U.S.-Born Detainee Loses Right to Public Defender

The 4th Circuit today dismissed U.S. born detainee Yaser Esam Hamdi's lawsuit challenging his detention as an enemy combatant. Text of Court's Opinion

The Court said the public defender who filed the lawsuit does not have the right to represent him. The public defender had been appointed by the lower court to represent Hamdi as his "next friend." The appeals court said the public defender didn't have a close enough relationship with Hamdi to be his "next friend." Thus, the dismissal. The Court did not address the ultimate issue of whether Hambi is entitled to a lawyer while he is being held by the military and interrorgated.

The 4th Circuit appointed Hamdi's father as his "next friend."

Hamdi has been held six months and no charges have been filed against him. He was apprehended in Afghanistan and shipped to Guantanamo Bay in Cuba. When officials learned he was born in Louisiana and a U.S. citizen, they shipped him to the U.S. Navy jail in Norfolk, Va. The Government has said it does not intend to charge Hamdi in civilian court.

The Government insists it can hold Hamdi without a lawyer because he is an "enemy combatant" and enemy combatants don't have the same rights as others. Okay, but who determined he was an enemy combatant? The military.

We think the military has the right to accuse someone of being an enemy combatant but it should be a judge who makes the decision. In open court. At a hearing where Hamdi is afforded a right to a lawyer, the right to review the evidence against him, and to call and cross-examine witnesses. Until and unless a court determines he is an enemy combatant, he should retain his rights as an American. To say otherwise means the Government can brand someone with a label and then imprison them indefinitely, even forever. We think that's way too much power to give the Government.

In 1946, an American was imprisoned here because he had fought for the Italian army. The court gave him a lawyer and a hearing on the issue of whether he was an enemy combatant. Hamdi deserves no less.

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