U.S. Nears Deal to Free Enemy Combatant Hamdi
American Citizen Who Was Captured in Afghanistan Has Been Held Since 2001
Without Being Charged
By Thomas E. Ricks and Jerry Markon
Washington Post Staff Writers
Thursday, August 12, 2004; Page A02
The U.S. government, which has held Yaser Esam Hamdi incommunicado in a Navy
brig for two years without charges, much of the time without a lawyer,
indicated yesterday that it is nearing a deal that would free him
altogether.
The government is negotiating with Hamdi's lawyers about "terms and
conditions acceptable to both parties that would allow Mr. Hamdi to be
released from . . . custody," according to documents filed in federal court
in Norfolk. The legal papers, submitted jointly by federal prosecutors and
Hamdi's attorneys, asked the court to stay all proceedings for 21 days while
negotiations continue.
Photo:
http://tinyurl.com/5vgz2
Caption: Yaser Esam Hamdi, center, was captured alongside pro-Taliban forces
in northern Afghanistan in 2001 and taken to the U.S. military prison in
Guantanamo Bay, Cuba. (Terry Richards -- AP)
Terms of the release are still being hammered out but, according to people
familiar with the situation, are likely to include that Hamdi renounce his
U.S. citizenship, move to Saudi Arabia and accept some travel restrictions,
as well as some monitoring by Saudi officials. In addition, he may have to
agree not to sue the federal government over whether his civil rights were
violated.
U.S. District Judge Robert G. Doumar in Norfolk has yet to rule on the
request for a stay.
Hamdi was captured alongside pro-Taliban forces on the battlefield in
northern Afghanistan in November 2001 and taken to the U.S. military prison
at Guantanamo Bay, Cuba. There he told investigators that he was born in
Louisiana to Saudi parents. He subsequently spent most of his life in Saudi
Arabia, but his family said he never renounced his U.S. citizenship.
Hamdi was moved to the Navy jail at Charleston, S.C., in April 2002 and has
been held there since as an enemy combatant. The government has not charged
him.
In June, the Supreme Court ruled that as a U.S. citizen, Hamdi must have
access to the U.S. legal system. All of the justices except Clarence Thomas
rejected the Bush administration's contention that the federal courts could
exercise no supervision over such a case.
"We have long since made clear that a state of war is not a blank check for
the President when it comes to the rights of the Nation's citizens," Justice
Sandra Day O'Connor wrote in a passage of the ruling that seemed to
summarize the dominant view of the court.
The indication that Hamdi might be released soon is "a huge embarrassment
for the administration," said Michael Greenberger, a Justice Department
official in the Clinton administration who is now a law professor at the
University of Maryland.
"I think it's a bombshell," said Eugene R. Fidell, a Washington lawyer who
specializes in military issues. "I think it's the type of thing that gets
judges very, very upset," especially after the government had argued
vigorously for more than two years to hold Hamdi, he said.
Frank W. Dunham Jr., the federal public defender who represents Hamdi, said
the filing indicates that the negotiations over Hamdi's possible release
"have reached the point where they're serious enough that both sides feel
it's worth going into court and suggesting that maybe nothing ought to
happen for a short period of time."
Dunham would not say how likely it is that Hamdi would be freed but added
that he thinks the government "is operating in good faith and with a certain
element of common sense."
Asked about possible terms of a release, a Justice Department official
pointedly noted that Hamdi also holds citizenship in Saudi Arabia and that
there are ample precedents for the conditional release of prisoners during
wartime.
The only other U.S. citizen being held as an enemy combatant is Jose
Padilla, who was arrested in May 2002 at Chicago's O'Hare Airport and has
been accused of plotting to set off a radiological bomb in the United States
and blow up apartment buildings here.
The Justice official said that it was possible to discuss releasing Hamdi if
he "no longer has intelligence value or is no longer a threat to national
security."
"It's been three years, and it's a different time," said the official, who
spoke on the condition that fuller identification not be used. "So it is
appropriate to look at the options."
But some experts in national security law dismissed that view. "I think
that's cosmetic," said Scott L. Silliman, director of Duke University's
Center for Law, Ethics and National Security. "I think what they're doing is
saying that Hamdi . . . is a case we just want to move off the headlines and
dockets."
The U.S. Court of Appeals for the 4th Circuit in Richmond issued a short
order last week sending the Hamdi case back to Doumar. If a stay is not
granted or Hamdi remains in custody, it remains unclear how further court
proceedings in the case would develop.
Pentagon officials, considered a major force in pursuing the case, declined
to comment yesterday. "I'm aware of the filing, but I don't have a comment
for you," said Air Force Maj. Michael Shavers, a spokesman for the Defense
Department's general counsel, William J. Haynes II. "The Department of
Justice is taking the lead on this one."
http://www.washingtonpost.com/wp-dyn/articles/A58002-2004Aug11.html
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