Uncivil liberties

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Yaser Esam Hamdi is an American born in Baton Rouge, La., raised in Saudi Arabia, and captured by Northern Alliance forces in Afghanistan while serving with the Taliban.

After a stay in Guantanamo, he is now in a Navy brig in Norfolk, Va., designated as an "enemy combatant," not charged with anything, and denied legal representation. Federal District Court Judge Robert Doumar in Norfolk ordered unrestricted access to counsel for Mr. Hamdi. That was halted by the appeals court, which told the judge to hear more arguments and get more facts before ruling. When Judge Doumar called for documents, the Justice Department did not provide many.

At a second hearing, Doumar renewed his order that the government furnish more information to justify holding Hamdi incommunicado. The order said, "We must protect the freedom of even those who hate us." The judge offered to review classified information in secret.

The Justice Department, however, gave no sign of receding from its position that anyone it labels an enemy combatant has no rights and, furthermore, that the courts have no power to intervene. The government has once again appealed Doumar's ruling.

The Hamdi case asserts a novel separation of powers between the executive branch and the judiciary that is almost unprecedented. During the Civil War, the Supreme Court prohibited military detention of noncombatant Americans without appeal as long as the courts were functioning.

But what if Attorney General John Ashcroft says that, when it comes to enemy combatants, the Supreme Court has no jurisdiction either?

A 1971 law looking back to the detention of Japanese-Americans without legal recourse during World War II prohibits the imprisonment of American citizens except pursuant to an act of Congress. The administration says that law does not apply to enemy combatants.

If the administration can decide on its own who has rights and who does not, who can have a lawyer and who cannot, who is an enemy and who is not, and further proclaim that its decision is not subject to judicial review, then that endangers the very liberties that President Bush says he is trying to defend against the terrorists.

• Daniel Schorr is a senior news analyst at National Public Radio.