In the autumn of 2001, American forces in Afghanistan captured an enemy combatant by the name of Yaser Esam Hamdi. He is now in a Navy brig in Norfolk, Va., and thanks to an opinion by an outstanding federal judge, he is likely to stay there for quite some time.
The judge is J. Harvie Wilkinson, chief judge of the 4th U.S. Circuit. He deserves to be better known across the country. His approach to the Hamdi case provides an example of the kind of judicial restraint that ought to be emulated more widely.
Hamdi differs from other prisoners of the Taliban war in this regard: He is an American citizen. Born in Louisiana, he immigrated to Saudi Arabia as a child. A few weeks after 9/11 he was captured, carrying an AK-47 rifle, as part of a Taliban unit. The legal issue goes to the propriety of his detention without trial. On January 8, a three-judge panel, speaking through Judge Wilkinson, ruled that Hamdi may be held under the war powers granted to the President as commander in chief.
Now in his 19th year on the federal bench, Wilkinson often is mentioned for a seat on the U.S. Supreme Court. He is 58. After an apprenticeship as a clerk to the late Justice Lewis Powell, he served as a professor of law at the University of Virginia. He honed his writing skills for three years as a newspaper editor in Norfolk, returned to the university, and then was nominated by President Reagan to the 4th Circuit.
Wilkinson is guided in his jurisprudence by two pole stars. He believes in what used to be called "strict construction" of the Constitution. He believes, for example, that the word "commerce" means "commerce." This is extraordinary. He also believes in respecting the doctrine of separation of powers. In the Hamdi case, he declined the prisoner’s bid for judicial intervention in an area of the law reserved in wartime for the legislative and executive branches.
"The reasons for this deference," he wrote, "are not difficult to discern. Through their departments and committees, the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not."
In the Virginia U.S. District Court last August, Judge Robert Doumar had ordered the government to produce all kinds of documents dealing with Hamdi’s capture-the names and addresses of his interrogators, the statements of his captors, a description of Hamdi’s uniform (if any), the name of the Taliban unit. The judge declared himself ready to pick apart the government’s case "piece by piece."
Judge Wilkinson would have none of this. Such a factual inquiry, if it did not entail disclosure of sensitive intelligence, "might require an excavation of facts buried under the rubble of war." Wartime detentions cannot be driven by litigation. "The military has been charged with winning a war, not prevailing in a possible court case."
Judge Wilkinson emphasized that he and his two colleagues "are not placing our imprimatur upon a new day of executive detentions." They were not saying-as some critics charged-that "any American citizen" alleged to be an enemy combatant could be detained indefinitely without judicial review. But Hamdi is not just "any American citizen." He is "an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces."
Toward the end of his long opinion in the Hamdi case, Judge Wilkinson returned to his starting point. The case raises old questions-serious questions-about the role of the judiciary in the American plan. A balance must be maintained between liberty and security. "The judiciary was meant to respect the delicacy of the balance, and we have endeavored to do so.
"The events of September 11 have left their indelible mark. It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day. Yet we speak in the end not from sorrow or anger, but from the conviction that separation of powers takes on special significance when the nation itself comes under attack. Hamdi’s status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framers’ scheme. Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one. That is why the judgment must be reversed and the petition dismissed. It is so ordered."
