US courts have a vague idea what the rule of law is it seems, but are too frightened to enforce it. Saying that someone who is being held incommunicado "may" have the right to ask a court to determine whether they have committed a crime, but there is "no reason yet" to consider this. Since his captors are not permitting him any opportunity to file for a hearing. If he hasn't any right to a lawyer and can't file court papers personally, then any theoretic rights under the law are effectively thwarted.
Bill Bartlett Bracknell Tas
http://www.cnn.com/2002/LAW/07/12/hamdi.ruling/index.html
Court denies American Taliban legal counsel
July 12, 2002 Posted: 4:31 PM EDT (2031 GMT)
RICHMOND, Virginia (CNN) -- A federal appeals court in Virginia has given a partial victory to the U.S. government by reversing a lower court judge's ruling that the so-called "Second American Taliban" Yasir Hamdi had a right to an attorney.
Hamdi was captured in Afghanistan and the young Saudi was sent to Guantanamo Bay. But when investigators verified his claim that he was born in Louisiana, he was relocated to the brig at the Norfolk, Virginia, Naval Base, held incommunicado.
A federal district judge in Norfolk, Virginia, ordered that Hamdi be given access to an attorney over U.S. government objections that as an "unlawful enemy combatant" he had no rights to an attorney.
When they appealed, U.S. officials claimed that the courts have no role in the matter, that the president has the absolute right to decide who was an unlawful combatant with no court review permitted.
A panel of the 4th U.S. Circuit Court of Appeals decided not to rule on that question, calling the issue "premature." They sent the case back to the lower court instead of dismissing it.
"In dismissing," the judges decided, "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 charge, on the government's say-so."
That, they said, they were not prepared to conclude. But they did state and restate that the executive branch should be given huge deference in such matters:
" ... any judicial inquiry into Hamdi's status as an alleged enemy combatant must reflect a recognition that government has no more profound responsibility than the protection of Americans, both military and civilian ... Our Constitution's commitment of the conduct of war to the political branches of government require the court's respect at every step."
So the appeals judges imply that the courts may have a role in deciding who is an enemy combatant, but in the Hamdi case there is no reason shown yet to challenge the designation.