August 16, 2004
"Never mind," the feds now say to Yaser Esam Hamdi, the alleged enemy combatant
whose case was decided in June by the U.S. Supreme Court. Never mind that we
threw you into the brig and then fought like wildcats to deprive you of
fundamental constitutional rights. Never mind that we told federal judges that
you were a dangerous enemy of the United States.
Now, it seems, the
government is negotiating with Hamdi's attorneys for his release from
confinement. According to reports, Hamdi would renounce his U.S. citizenship,
move to Saudi Arabia and accept some travel restrictions, as well as some
monitoring by Saudi officials, in exchange for his freedom. In addition, he may
have to agree not to file a civil rights lawsuit against the federal government.
If all Hamdi has to worry about is going forward into his new life of
freedom, it would be a remarkable turnaround for a man who for years now the
government has sworn is a terrorist. It would be a shocking admission from the
government that there is not now, and probably never has been, a viable criminal
case against Hamdi. And it would cause a stunning and long-lasting loss of
credibility for the representations that government lawyers and military
officials make in these sorts of terror law cases.
The Justice
Department is spinning the talks between Hamdi's attorneys and federal lawyers
as a routine exercise in the release of prisoners in wartime. But it is fairly
clear that such talks did not take place before the Supreme Court rode to
Hamdi's rescue a couple of months ago by requiring his captors to give him some
rights.
If Hamdi is such a minor threat today that he can go back to
the Middle East without a trial or any other proceeding, it's hard not to wonder
whether the government has been crying wolf all these years.
The
government, remember, told a federal appeals panel in June 2002 that "Hamdi's
background and experience, particularly in the Middle East, Afghanistan and
Pakistan, suggest considerable knowledge of Tali ban and Al Qaeda training and
operations." Government lawyers told the Supreme Court itself as late as April
that Hamdi's continued detention (without charges) was necessary and
appropriate. Why? Because, the feds said, Hamdi was captured when his Taliban
unit surrendered to Northern Alliance forces and, at the time of his capture,
Hamdi had an AK-47 rifle.
Since Sept. 11, many American citizens have
been indicted and prosecuted in the domestic war on terrorism for less sinister
conduct (remember the Lackawanna 6?). But apparently no case ever will be
brought against Hamdi. No, he did his time without a judge or a jury finding
proof against him beyond a reasonable doubt.
And now that his case and
his cause have become an embarrassment, now that the Supreme Court smacked down
the executive branch's power grab, the feds have decided that they are better
off just moving on.
When you think about that, and you think about
what the Constitution is supposed to protect us against, Hamdi's sto ry is a
scary one even during this time of terror.
And it reminds me of the
story of another U.S. citizen who was captured by the Northern Alliance while
hanging out with the Taliban in the months after the 9/11 attacks. I wonder
today what John Walker Lindh thinks of this governmental change of heart about
Hamdi. Unlike Hamdi, Lindh was never deemed an enemy combatant and immediately
deprived of his rights. Instead, he was indicted and prosecuted and is now
spending 20 years in a federal prison after pleading guilty to aiding a
terrorist organization. Lindh's attorneys are following this development very
closely because of the similarities between their client and Hamdi. They hope
the government gives Lindh the same reconsideration it has extended to
Hamdi.
Nothing the Supreme Court declared in the Hamdi case in June
requires the government to take the action it took. All the court did was
declare that Hamdi is entitled to some form of constitutional due process. The
government could satisfy that obligation to Hamdi, the court suggested, by some
form of military review process. But apparently Hamdi won't have to endure such
a process.
So don't blame the justices if you see Hamdi whooping it up
in Riyadh sometime next year. And don't blame Lindh for shaking his head at the
unequal treatment these two cases represent. This isn't supposed to happen in a
nation ruled by law.
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