252 The making of American domestic policy
challenges. Federal District Court Judges around the country gave conflict-
ing rulings about the procedures that were constitutionally acceptable for
dealing with these cases. In 2002 one Federal Judge, Robert G. Doumar,
ruled that a prisoner being held incommunicado in a naval prison in Norfolk,
Virginia, should be given access to a lawyer with a view to entering a plea for
a writ of habeas corpus. Judge Doumar said that ‘fair play and fundamental
justice require it’, pointing out that the government ‘could not cite one case
where a prisoner of any variety within the jurisdiction of a United States
District Court, was held incommunicado and indefinitely.’ The prisoner con-
cerned was Yaser Esam Hamdi, holding dual American and Saudi Arabian
citizenship, who had been captured in Afghanistan, allegedly a member of the
Taliban. He had been sent to Guantánamo Bay, but transferred to the naval
prison in Virginia when his American citizenship was established. However,
Judge Doumar’s decision was overruled by the Federal Appeals Court for the
Fourth Circuit. The Chief Judge of the Appeals Court held that ‘the federal
courts have many strengths, but the conduct of combat operations has been
left to others. The executive is best prepared to exercise the military judg-
ment attending the capture of alleged combatants... it is the President who
has been charged to use force against those “nations, organization or persons
he determines” were responsible for the September 11 terrorist attacks.’
The Hamdi Case reached the Supreme Court in 2004 (Hamdi v. Rumsfeld).
The Court held that citizens detained by the government on the grounds of
being enemy combatants must receive an opportunity to ‘rebut the govern-
ment’s factual assertions before a neutral decision-maker’. Justice Sandra
Day O’Connor stated:
History and common sense teach us that an unchecked system of deten-
tion carries the potential to become a means for oppression and abuse
of others who do not present that sort of threat... We reaffirm today
the fundamental nature of a citizen’s right to be free from involuntary
confinement by his own government without the due process of law.Thus the Court rejected the argument that, in time of war, the executive
branch of government could be both prosecutor and judge, incarcerating
citizens without trial, incommunicado and indefinitely, without the interven-
tion of the judiciary. As a result of this decision, after three years’ detention
without having been charged with any offence, Hamdi reached an agreement
with the US government that he would be released, on condition that he re-
turned to Saudi Arabia and renounced his American citizenship. Another US
citizen, José Padilla, was arrested in Chicago in 2002 suspected of intending
to carry out a terrorist attack in the United States. He was detained without
charge as an ‘enemy combatant’ in the same naval prison as Hamdi. After
the Hamdi decision of the Supreme Court he was charged with ‘conspiracy to
murder, kidnap, and maim people overseas’ and in May 2006 was still await-
ing trial.
A potentially more difficult problem arises in the case of the status of