Thursday, August 19, 2004

Public defender in the Hamdi case

The Norfolk paper has this column ("Underdog public defender scores big in Hamdi case," 8/19/04) with the lowdown on E.D. Va. public defender Frank Dunham, who appears to have prevailed over the Justice Department and the Defense Department in the case of alleged enemy combatant Yaser Hamdi. The article notes that Dunham's argument before the Supreme Court in the Hamdi case is "already the stuff of legal legend," which makes me want to go back and read both the argument transcript and the opinion.

Update: On further review, Dunham's rebuttal before the Supreme Court is worth quoting:

"May it please the Court. Mr. Clement is a worthy advocate and he can stand up here and make the unreasonable sound reasonable. But when you take his argument at core, it is, "Trust us." And who is saying trust us? The executive branch. And why do we have the great writ? We have the great writ because we didn't trust the executive branch when we founded this Government. That's why the Government is saying trust us is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that no man shall be deprived of liberty except upon due process of law.

We have a small problem here. One citizen. We're not talking about thousands. One citizen caught up in a problem in Afghanistan. Is it better to give him rights or is it better to start a new dawn of saying there are circumstances where you can't file a writ of habeas corpus and there are circumstances where you can't get due process. I think not. I would urge the Court not to go down that road. I would urge the Court to find that citizens can only be detained by law. And here there is no law. If there is any law at all, it is the executive's own secret definition of whatever enemy combatant is. And don't fool yourselves into thinking that that means somebody coming off a battlefield because they've used it in Chicago, they've used it in New York and they've used it in Indiana.

The Congress needs to act here. Justice Souter was on point when he was talking about the fact that we're two years into this thing and Congress leaves all the laws on the books that relate to habeas corpus and how a habeas corpus proceeding is supposed to go. They leave the 4001(a) on the books that says no executive detention. But we ignore those laws, we don't enforce them. We don't require Congress to fill a gap. Congress tomorrow could take these military regs and they could say, this is the law, we authorize the executive to detain people and to give
them hearings the way the military says, and then it would be lawful. But Congress hasn't done that and I respectfully submit, Your Honor, that until Congress does that, these detentions are not lawful. And I would respectfully ask this Court to step up to the plate and say so."

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