The other major anti-terrorism case decided by the Supreme Court at the end of its last term, was the "enemy combatant" case. Although more than one individual is being held by the United States government as an "enemy combatant," the case involved just one of those persons: Yaser Hamdi.

The Supreme Court decision is not a bright victory for freedom and justice. The Court said that the government must be required to show reasons for holding a person as an "enemy combatant." But it did not condemn the use of the "enemy combatant" designation even as to United States citizens. And it did not say that Hamdi must be immediately released.

Hamdi was born in the United States, in Louisiana (whether Louisiana is really part of the United States, despite being a State of the Union, is a whole other philosophical and cultural discussion, but for right now we will assume that it is). His parents originally were from Saudi Arabia. When Hamdi was young, his family moved back to Saudi Arabia. In a series of decisions and events not necessary to describe here, Hamdi was in Afghanistan when United States troops began their military action there after the September 11 attacks.

Hamdi was seized in Afghanistan, supposedly on the "battlefield," in late 2001, by the "Northern Alliance" forces aligned with the military. He then was transferred eventually to Guantanamo Bay, in January of 2002, with others seized in Afghanistan. Upon his arrival there, he stated that he was an American citizen. After investigation, the military confirmed that this was so. But that did not mean that Hamdi would be released. Instead, he still was designated as an "enemy combatant" and was taken to a Navy brig in Norfolk, Virginia.

Since he was taken in Afghanistan and his transfer to the Navy brig, he had not been allowed contact with other prisoners, has not been allowed to see counsel (until recently), and
has not been allowed visitors. He has been kept virtually incommunicado. He remains in confinement--although there have been press reports that arrangements are being discussed to permit his release.

The government claimed that Hamdi was involved with forces (mostly Taliban forces) engaged in hostilities against United States forces, and so he can be held as an "enemy combatant." His family claims that Hamdi was in Afghanistan doing humanitarian work and was not involved in any fighting.

Not long after he was taken to the Navy brig, a habeas corpus petition was filed in federal court on Hamdi's behalf, demanding his release and demanding that the government produce evidence to show that he can be held as an "enemy combatant." The petition demanded that: 1) counsel be appointed for Hamdi, 2) interrogations of him be halted, 3) the court declare that his detention was in violation of Fifth and Fourteenth Amendments Due Process clauses, 4) the court allow him a meaningful challenge to any government evidence, and 5) the court order him released from custody. These demands were in the alternative--that is, if the fourth and fifth requests were granted, the first and second requests would not be essential.

This petition began a series of motions and appeals. The appeals went to the United States Court of Appeals for the Fourth Circuit (in Richmond), traditionally a conservative appeals circuit, that often sides with the government in criminal cases. It must be mentioned that Hamdi is a United States citizen--he is not a foreign national in the United States charged with terrorism and is not one of the other foreign nationals brought to Camp Delta at Guantanamo Bay. So he can claim the same Constitutional protections as any other citizen.

One of the chief issues is a statute known as the "Anti-Detention Statute (18 U.S.C. §4001). It says, "no citizen shall be imprisoned or otherwise detained by the United States except
pursuant to an Act of Congress." The statute was passed in 1971 as part of the repeal of the
Emergency Detention Act of 1950. The "Anti-Detention Statute" requires an express
authorization by Congress, before a United States citizen is detained by an Executive Branch
(aside from detentions allowed in criminal process or immigration process, under existing laws). A central question is whether the Congressional resolution authorizing use by the President of military force in Afghanistan, met the requirements of the Anti-Detention Statute and allows the government to seize and hold Hamdi as an "enemy combatant." However, that Congressional authorization does not mention, at all, seizure of United States citizens or anyone else by the government as "enemy combatants."

Another central issue is what kind of evidence the government should produce, if required, to justify its seizure of any person as an "enemy combatant," and what sort of examination a court can make of that evidence. At one of the federal district court hearings on his petition, the government submitted a "declaration" by Michael Mobbs, a Special Advisor to the Under Secretary of Defense for Policy. This became known as the "Mobbs Declaration." According to the government, the statements in that Declaration, charging Hamdi with actions against the United States forces in Afghanistan, were enough to justify his detention as enemy combatant. No further action by the court was required.

The federal district court disagreed and required additional evidence from the government. The government refused and appealed to the Fourth Circuit. The Fourth Circuit agreed with the government. The Fourth Circuit decided that the requirements of the Anti-Detention Act were met by the Congressional authorization of use of military force in Afghanistan, that the Mobbs Declaration was sufficient by itself to justify Hamdi's detention as an "enemy combatant," and that no further court review was required--or could be required, since the courts should not interfere into military affairs during a time of current military activity.

The Supreme Court, in a rather fractured decision, ruled both for and against the government. The Court agreed with the government that the Congressional authorization for use
of military force in Afghanistan DOES allow the Executive Branch (such as the Justice Department or Defense Department) to hold someone as an "enemy combatant," even a United States citizen. The Supreme Court came to that conclusion even though the authorization for use
of military force contains no mention of government seizing and holding persons as "enemy
combatants."

The Court decided that this was an assumed authority held by the Executive, as Commander-in-Chief. "We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the `necessary and appropriate force' Congress has authorized the President to use." The Court had no trouble with the government [defining] a citizen as an "enemy combatant." It said, "There is no bar to this Nation's holding one of its own citizens as an enemy combatant." Citizens who "associate themselves with the military arm of an enemy government" can be held by the President or the Executive as part of the general authorization as Commander in Chief.

To justify that action, the Supreme Court said that the government should be required to submit more evidence, and it should be subject to closer court review, than the Fourth Circuit ruled was necessary. The Supreme Court said, "We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker."

The Court also was concerned about just how far the "enemy combatant" designation can go. It was distressed with the lengths to which the government wanted to take that term.

The Court decided it would consider the "enemy combatant" designation to apply only in the situation it was considering: someone taken supposedly in battlefield circumstances in a foreign country where hostilities were directed against US forces. This would mean that Jose
Padilla, one of the other "enemy combatants" still held by the United States, could not really be called an "enemy combatant," since he was arrested at Chicago O'Hare airport and nowhere near any battlefield. But the Supreme Court decision on the Padilla case did not discuss those issues. The Court ruled instead that his petition was filed in the wrong federal district. It remains to be seen whether Padilla will be released because he does not fit the Supreme Court view of what an "enemy combatant" should be. At this writing, Padilla remains in custody.

The Supreme Court also did not exactly describe just what additional evidence the government should produce, or what sort of hearing the federal court should have on that evidence. The Supreme Court decided that there should be a "meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." This could mean, however, that the government's evidence can be presumed as correct. It could also mean that the hearing
be very brief and very generalized, like a military tribunal.

Even so, the "enemy combatant" designation cannot last indefinitely. The Supreme Court rejected the government's view on this, and said, "If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, join forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life."

The Court also was concerned about potential abuse of this "enemy combatant" designation. On that, it said, "As critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

That is, "Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

Yet, all of this bold language is not matched by what the Supreme Court actually did. The Court did not declare that the "enemy combatant" designation is improper or unauthorized, it did not say that US citizens cannot be held as "enemy combatants," it did not order Hamdi released, it did not explain what amount of evidence will be sufficient to justify an "enemy combatant" detention, and it did not demand that a court hold a full-scale review of that evidence. In fact, the Court said that Constitutional standards for a court review of the government's evidence "could be met by an appropriately authorized and properly constituted military tribunal." All that is required is that "minimum requirements" of due process be "achieved."

What that means, and how a hearing will proceed in Hamdi's case, was left by the Supreme Court to the vagueness of the future. It is a future that is not entirely bright for anyone else, even a US citizen, who is declared by the government to be an "enemy combatant."

C. William Michaels is an attorney in Baltimore, Maryland and the author of "No Greater
Threat: America After September 11 and the Rise of a National Security State" (Algora, 2002). "No
Greater Threat" is the only book containing a review of the entire USA PATRIOT Act. For more
information on the book and author, contact www.nogreaterthreat.com.