Homeland Security

DATE=01/09/03

TYPE=BACKGROUND REPORT

TITLE=TERRORISM / LEGAL

NUMBER=5-52840

BYLINE=JIM MALONE

DATELINE=WASHINGTON

INTERNET=YES

CONTENT=

VOICED AT:

INTRO: The Bush administration won a major legal victory this week as part of the war on terrorism. A federal appeals court upheld the government's right to indefinitely detain an American citizen captured as an enemy combatant on the battlefield. But as National correspondent Jim Malone reports, further appeals of the ruling are likely.

TEXT: The case at issue involves Yaser Esam Hamdi, a 22-year old American-born Saudi who was captured while fighting with the Taliban in November of 2001.

Though technically an American citizen, Mr. Hamdi has been held in military detention without access to a lawyer since his capture. Lawyers acting on his behalf argued that he had the right to consult an attorney and to question the reasons for his detention.

But the ruling by a federal appeals court in Virginia upheld the government's right to indefinitely detain Americans captured on foreign battlefields as enemy combatants. The appeals court said it was important to defer to military judgments when determining who constitutes an enemy combatant.

Civil liberties activists criticized the appeals court ruling for failing to protect to the rights of Americans to have access to a lawyer and to question their detention.

Susan Herman is a law professor at Brooklyn Law School in New York:

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The Fourth Circuit opinion is a complete judicial abdication of the court's responsibility to make sure that people don't end up in a kind of legal no-man's land. History shows us that the courts actually have to be least deferential (to the government) in some respects in time of war to ensure that people's civil liberties are not being violated.

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Attorney General John Ashcroft issued a statement praising the ruling as an important victory "for the president's ability to protect the American people in times of war."

Mr. Ashcroft has frequently defended the administration's legal tactics in the war on terrorism in appearances before the U-S Congress:

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And for those who say we have got to make a choice between liberty and security, I always want to say, liberty is what we are securing. If we are not securing liberty, we've got our eyes on the wrong objective.

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Lawyers acting on Mr. Hamdi's behalf say it is likely they will appeal the ruling to the U-S Supreme Court.

It is not known how this latest ruling will affect the case of another American being held by the military, Jose Padilla. Mr. Padilla was arrested last year on suspicion of being involved in a terrorist plot to detonate a so-called radioactive dirty-bomb. Although he is also deemed an enemy combatant by the government, his case is different from Mr. Hamdi's in that he was arrested in the United States, not on a foreign battlefield. (Signed)

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