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Frank Dunham
Frank Dunham Jr. argued Hamdi's case before the Supreme Court on April 28.

Posted May 21, 2004
Hamdi, Moussaoui Attorney Describes Court Battles

It’s been a busy couple of years for Frank Dunham Jr., Federal Public Defender of the Eastern District of Virginia. He litigated the high-profile Yaser Esam Hamdi “enemy combatant” case for two years before meeting his client in February, not long before pleading his case before the Supreme Court. His other notorious client, Zacarias Moussaoui, fired his attorneys, and Dunham now serves as stand-by counsel to a man admittedly linked to al Qaeda.

“No matter how distasteful my client’s actions may have been,” Dunham said, “when I’m defending him, I’m defending all of you.” Preserving the habeas corpus rights of potential terrorists like Moussaoui or Hamdi is necessary to preserve the rights of all Americans, he told audience members at the Army Judge Advocate School and Legal Center’s 32nd Kenneth J. Hodson Lecture on Criminal Law May 19.

Unlike in the case of American Taliban John Walker Lindh, who blurted his story to the media, “the government really has no evidence” against Hamdi, Dunham said. Hamdi was captured in Afghanistan and held at Guantanamo Bay until officials realized he was an American citizen and transported him to a Norfolk Navy brig, holding him without access to lawyers or even a hearing. Dunham pointed out that Hamdi was originally flown to a Washington, D.C.-area airport north of Norfolk—an unlikely layover—and speculated that the military was about to turn him over to the Justice Department for criminal prosecution. Dunham supposed that the attorney general or a Justice Department official decided there was not enough evidence to hold him on criminal charges, so the military flew him instead to Norfolk “not really knowing what they were going to do with him.” Dunham said Hamdi should have gotten a military hearing shortly after being removed from the battlefield, as military regulations require.

“My client rigorously disputes he was a combatant of any kind,” he said.

The expansion of executive powers during wartime has a long history in the United States, Dunham noted, beginning with the Alien and Sedition Act of 1798, which allowed the government to deport people without due process during the war between France and Britain. “Crisis brings these things to the surface,” he said.

Even President Lincoln tried to suspend the writ of habeas corpus, which requires the government to produce a prisoner before a court and justify his imprisonment. When Virginia seceded from the Union and amassed an army near the capital, officials uncovered a plot to blow up the railroad line that would transport federal troops to Lincoln’s aid. The military arrested the civilian suspects without a hearing. A Maryland circuit court judge who also served on the Supreme Court questioned the maneuver, but before the case could get to the Supreme Court, Congress—which as an Article I branch has power to authorize such detentions—moved to ratify what Lincoln had done. Lincoln opined that with Confederate forces closing in and posing a threat to government, he would not have been able to enforce laws at all without ignoring habeas corpus in this case.

Things “lightened up” after the Civil War, when Congress passed habeas statutes reaffirming the rights of prisoners in 1867. Those statutes are “what’s at issue in the Hamdi case,” Dunham said. Although the Civil War was a rebellion and Lincoln didn’t want to recognize Confederate sovereignty, he still applied the rules of war. Lincoln would have preferred calling captured Confederates criminals rather than POWs, Dunham said, but he had no choice because “they had the Union troops as well.”

During World War I, Congress passed the Espionage Act of 1917 and the Sedition Act of 1918, enabling the prosecution of war-time dissenters. In World War II the government went to the extreme of moving ethnic-Japanese American citizens to internment camps. Dunham said the government now admits there was no national security imperative to do so. In 1971 Congress repealed the Emergency Detention Act of 1950, passed during heightened fears of communist infiltration.

With this in mind, the war against terrorism is “really not a lot different from crises our country has faced in the past.” Government officials try to do the right thing, “but they overreact.”

On the other hand, the Patriot Act was “really not the repeal of all civil liberties that people try to make it seem,” Dunham added, noting that it includes several measures key to fighting terrorism. But the Act “is a symbol of some of the things going on today that we think are necessary on the war on terror… [and] may not really be necessary.”

Dunham praised JAG lawyers’ handling of Hamdi’s case. How Americans treat detainees “speaks about who we are…. We don’t want to become them,” he said. “We need to stand up for what’s right, and the military has been doing that in spades.”

Dunham, who described himself as Republican-leaning, entered the public defender business after a successful career serving as an Assistant United States Attorney for the Eastern District of Virginia, and later specializing in white collar criminal defense at a private firm. He took the job as the first Federal Public Defender in the Eastern District of Virginia because he was ready for a change. He was planning his office layout on 9/11 and had no idea he soon would be spearheading the most high-profile cases to emerge from the attacks and their aftermath. They were “beyond anything I’ve ever had to handle in my entire legal career.”

On the surface, the cases were different: No one claims Hamdi is a terrorist, while Moussaoui is an admitted member of al Qaeda and faces criminal charges. “Until recently, I couldn’t talk to either one of these guys,” he said. Now, “Moussaoui won’t talk to me and Hamdi can’t….For two years I’ve been litigating hypothetical cases.”

In February, the government let Dunham meet with Hamdi for the first time. Stuck in a navy brig, “he hasn’t got the foggiest idea of what’s going on”—no clue he’s spawned many an editorial, or even that his case was headed to the Supreme Court.

“On the other hand, my other client hates me,” Dunham joked. When he asked to see his client, a guard reported back, “Mr. Moussaoui tells you to politely go to hell.”

Dunham said the government is basing its case against Hamdi on the separation of powers doctrine. Prosecutors charge that the Fifth Amendment right to due process does not apply when it interferes with presidential war powers. Despite government counsel’s arguments, U.S. District Judge Robert G. Doumar J.D. ’53 LL.M. ‘88 ruled that Hamdi should be able to meet with a lawyer, but a Fourth Circuit panel said Hamdi’s petition for habeas corpus was not properly filed. Dunham had signed on as “next friend” to Hamdi since he couldn’t see his client. Dunham recalled telling the judge, “Your honor, it doesn’t say ‘best friend,’ it says ‘next friend.’” Dunham eventually had to track down Hamdi’s father to get him to sign off on the petition.

What followed resembled a ping-pong game between the Fourth Circuit and Doumar’s court, as the appeals court panel first wanted to see if the case could be resolved without letting Dunham see his client.

The government produced what became known as the “Mobbs Declaration,” an affadavit filed on behalf of Michael H. Mobbs, Special Assistant to the Undersecretary of Defense for Policy. Dunham said the affidavit detailed Hamdi’s alleged actions, but raised more questions than answers, including whether Hamdi was even in active battle. While Doumar concluded the affidavit was inadequate, the Fourth Circuit decided that if the declaration was accurate, Hamdi could be classified as an enemy combatant.

The Supreme Court granted cert to Hamdi’s case and that of Jose Padilla, the alleged “dirty bomber,” who is also a U.S. citizen. Lawyers for Padilla claim he has the right to respond to government allegations that were filed in response to the defendant’s original petition for habeas corpus—or so say statutes passed in 1867.

The Fourth Circuit concluded that the congressional act passed shortly after 9/11 authorizing the president to “use all necessary and appropriate force” against individuals or nations that “planned, authorized, committed or aided the terrorist attacks” applied to prisoners in the war on terror as well. Dunham argued this would give the president the ability to detain anyone in any part of the world. When it passed the resolution, Congress didn’t intend “to bring in a new dawn of executive detentions,” he said.

Dunham said it was a thrill to argue before the Supreme Court, and that moots were crucial in preparing for the case. Hamdi and Padilla’s case were heard one after the other, and to Dunham’s dismay he found the solicitor general could rebut his concluding arguments on Hamdi in the next case.

In seeking evidence to defend Moussaoui, Dunham received a “data dump” from prosecutors in the form of CD-ROMs. Dunham faced additional obstacles from his client, who refused to file motions before the court because of his religious beliefs. When Dunham and others from the Public Defender’s office thought they had changed his mind, it turned out to be an excuse to appear before the court to fire his counsel. “He had let us file a motion only as a ruse,” he said.

Moussaoui faced an uphill battle; much of the evidence is classified, “and of course they weren’t going to give Moussaoui a clearance.” Dunham now serves as stand-by counsel to Moussaoui, but is not allowed to show expressions on his face or talk in court, since it may affect his client’s defense.

Government prosecutors are required to submit potentially relevant classified documents to the judge to determine if they must disclose them to defense counsel, who would have to get a clearance to review the documents. If the documents are exculpatory, Dunham explained, their importance trumps national security and defense counsel can use them. The government can still propose a substitute, such as blacking out classified but non-relevant parts of a document, but if a judge rules the substitute is inadequate, the defense may use the real thing. However, the attorney general has the ultimate right to veto use of classified material.

Dunham wanted enemy combatant witnesses abroad to testify, but everything they say is classified. “Even if he burps, that’s classified,” Dunham said. The judge in the Moussaoui case ruled that there must be live (if only satellite TV) depositions of witnesses, but the attorney general found the terms unacceptable. As a result, the judge threw out the death penalty as an option and ruled that no 9/11 evidence can be introduced.

Surprisingly, Moussaoui has a sense of humor about the proceedings, Dunham said, adding that “once he became his own lawyer he became quite a prolific motions filer.” He recalled a motion Moussaoui filed in reaction to the government’s shifting theories of his role in the 9/11 attacks, asking for Attorney General Ashcroft to state his opinion. His motion, in the form of a multiple-choice quiz, asked Ashcroft to check the box of the government’s view of Moussaoui:

  • 20th hijacker.
  • 5th plane pilot missing in action.
  • I, Ashcroft, don't know.
  • Let's kill him anyway.

After Judge Leonie Brinkema threw out the death penalty, Moussaoui, a believer in polygamy, filed a motion to dismiss the case, titling it “Four Weddings and No Funeral.”

Four days before Dunham was to argue Hamdi’s case in the Supreme Court, he learned that the Fourth Circuit ruled that there may be some substitutes for witnesses that will work in the Moussaoui case. However, in a potential boon for Dunham, the government recently conceded that prosecutors had access to witnesses when they previously said they did not. Moussaoui faces another hearing on the matter June 6.

Dunham said separation of powers was never intended to keep branches of government from doing what they’re supposed to do. “The separation of powers is about dividing powers,” he said, so no one branch is too powerful. “No matter how inconvenient it may be, what’s it worth if we don’t stand up for our own rights, rights as old as the Magna Carta?”

Attorneys should defend the Constitution and the writ of habeas corpus for potential enemies so “rights are there, intact, when the rest of us need them.”

Dunham said Congress has been “woefully remiss” in allowing Hamdi to be retained without counsel. He said judicial precedent requires that any statute authorizing detention of American citizens has to be specific, so the justification based on Congress’s authorization of force after 9/11 should not apply.

“It can’t possibly allow the Republic to fall to allow him to have a due process hearing,” Dunham said. From the time of the Founding Fathers, “we always recognized that our habeas corpus right was our most fundamental right.”
• Reported by M. Wood

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