Posted on: Friday, June 21, 2002

Terror incarcerations becoming Kafkaesque

As the domestic and international war on terrorism unfolds, we continue to be presented with scenarios that appear to have come directly out of Alice in Wonderland or from one of Kafka's books.

The latest involves a man named Yaser Esam Hamdi, who was captured in Afghanistan and is currently being held without charge in a military prison.

Hamdi, who probably is an American, was fighting against allied forces and by all appearances is a terrorist enemy of the United States. If that's true, he should be convicted and imprisoned for the duration of this fight.

But as an American citizen, Hamdi has a right to challenge his imprisonment and to have access to a lawyer. That's not how the Bush administration sees it.

In a document filed with a court that is supposed to be reviewing Hamdi's incarceration, the Justice Department had this to say:

"A court's inquiry should come to an end once the military has shown ... that it has determined that the detainee is an enemy combatant. ... (T)he court may not second-guess the military's enemy-combatant determination."

In other words, if we say he is an enemy combatant, then he is, and no court can rule otherwise. And once we have made that determination, we can hold him forever if we wish, without trial or meaningful judicial review.

That's a frightening approach, one more familiar to the Red Queen or in obscure dictatorships than in the United States.

One supposes it is a step forward that the Justice Department recognizes the court's authority to review the legality of the detention. But by demanding that the court accept without challenge the military's determination of that legality, and by refusing access to counsel, it's a hollow victory for due process.

It is likely that the Bush administration is correct and that Hamdi is an enemy combatant not eligible for standard due-process protections. But at this point, that assertion cannot be challenged.

The courts must not accept the contention that only the administration has the right to judge the lawfulness of its own behavior.