[Timber Loftis]

Appeals Court Again Hears Case of American Held Without Charges or Counsel
By KATHARINE Q. SEELYE

ICHMOND, Va., Oct. 28 — In nearly two hours of oral arguments here, the government said today that the Bush administration had the authority to hold a United States citizen caught in the Afghan battle for an unlimited period without charging him with anything or giving him access to a lawyer.

But the public defender, Frank W. Dunham Jr., said that finding such detentions lawful would set a precedent that would impinge on the civil liberties of all Americans.

The case is a potentially landmark clash between the powers of a president in wartime and the constitutional protections of due process for American citizens. It appears to be the first case in modern American law in which a citizen has been detained without being charged and without being given access to a lawyer. As such, it seems destined for the United States Supreme Court.

Today's arguments were made here before the United States Court of Appeals for the Fourth Circuit, which has now heard them for the third time after sending various aspects of them back to the lower district court.

After the two previous hearings, the appeals court largely sided with the government, saying that in a time of war, the judiciary had little authority to overrule a determination by the executive branch that someone caught on the battlefield was an "enemy combatant."

But the appeals court has also said it would be premature to dismiss the case outright, as the government has asked.

"In dismissing, we ourselves would be summarily embracing a sweeping proposition — namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so," Chief Judge J. Harvie Wilkinson III had written for the court in July.

At the center of the case is Yaser Esam Hamdi, whom Mr. Dunham represents but has never met or spoken with. Mr. Hamdi, 22, was born in Louisiana and reared in Saudi Arabia. He joined a Taliban unit in July 2001 in Afghanistan, surrendered to the Northern Alliance in November, and has been sitting incommunicado in the Navy brig in Norfolk, Va., since April.

The narrow question before the court was whether a two-page, nine-paragraph declaration by a Defense Department official, Michael Mobbs, provided a sufficient basis for the government to hold Mr. Hamdi as an enemy combatant.

Paul D. Clement, deputy solicitor general, argued that the Mobbs declaration was adequate. Mr. Clement said he wanted to assure the country that Mr. Hamdi was an enemy combatant. But he opposed further fact-finding into why Mr. Hamdi was so designated, saying that an order to the military to produce more material would set a bad precedent.

Mr. Dunham argued that the declaration was inadequate. But more important, he said, he should have access to Mr. Hamdi to see if he agreed with it. If Mr. Hamdi did, then that would end the case, Mr. Dunham said. If Mr. Hamdi disputed the declaration, it might be necessary to depose the military personnel who captured Mr. Hamdi.

Judge Wilkinson said that questioning the military commanders about Mr. Hamdi's capture would be extreme and disruptive. "The burdens on the military would be considerable, to litigate the circumstances of a capture that took place half-way around the world," the judge said.

Mr. Dunham said that any decision made on the battlefield was entitled to deference, but, he added, "A year later, when the emergency is ended, there is no need to give the same deference." He said that there was nothing in the Mobbs declaration to suggest that asking Mr. Hamdi if he was an enemy combatant would interfere with national security.

"We still don't know if he's an enemy combatant," Mr. Dunham said. "That's the $64 question."

He added: "The precedent that the administration is setting has long-term potential for incursions on our liberties."

The chief judge said he saw no way to resolve the question without calling military commanders into court and taking them away from their battlefield duties.

"Our freedoms don't come cheap," Mr. Dunham replied. "If you want to detain a United States citizen, there will be some inconvenience."

At the conclusion of the arguments, the chief judge praised both lawyers for the "able advocacy" of their positions.

"The American people have been beautifully served by the quality of advocacy," Mr. Wilkinson said before taking the unusual step of leading his two colleagues down from the bench to shake hands with the battery of lawyers on both sides. He gave no indication of when the court might rule.