U.S. may free detained American
NORFOLK, Va. – A U.S. citizen captured on the battlefield in Afghanistan might soon be allowed to walk free after three years in custody, bringing an end to one of the Bush administration’s longest and hardest-fought legal battles arising from the war on terrorism.
Lawyers for the government and for Yaser Esam Hamdi informed a federal judge Wednesday they’ve been negotiating his release since the Supreme Court said enemy combatants could not be indefinitely detained without legal rights.
In court papers filed jointly, the lawyers asked U.S. District Judge Robert G. Doumar to stay all proceedings in the case for 21 days so they can try to complete efforts to reach a mutually acceptable resolution.
“The thought is: What does he need any further legal proceedings for if the government agrees to release him?” Hamdi’s attorney, federal public defender Frank Dunham Jr., said in a telephone interview.
Allowing Hamdi to walk free would represent a remarkable reversal of fortune for the White House, which had won its legal arguments in Hamdi’s case in a lower court and had painted the Supreme Court ruling when it first came down as a partial victory.
As the first American citizen detained as an enemy combatant, Hamdi was the test case for what the Bush administration claimed was its prerogative to hold potentially dangerous terrorists as long as necessary without charges or trial, and without the ordinary legal rights due an American citizen accused of a crime.
The legal fight over Hamdi was always about the scope of presidential power instead of the specifics of his case. Nonetheless, the administration called him a “classic battlefield detainee” captured with an automatic weapon and presumed to be a danger.
Dunham said he thinks an agreement to release Hamdi is close.
“I’m a fan of Yogi Berra,” he added. “It’s never over ‘til it’s over. The fact that we’re talking to them and they’re talking to us doesn’t mean we’ve got an agreement.”
Lawrence Leonard, managing assistant U.S. attorney in Norfolk, did not immediately return calls seeking comment.
A Justice Department official, speaking on condition of anonymity because the case is pending before a court, said any prisoner of war or enemy combatant, including Hamdi, could be released when “they are determined to be of no further value and no longer a threat to the United States.”
Although prosecutors could bring criminal charges against some such prisoners, that decision would depend on the evidence available and whether U.S. national security interests would be best served by having the person go on trial in open court, the official said.
But Michael Greenberger, who worked on counterterrorism projects in the Clinton administration’s Justice Department, said letting Hamdi go now is a concession that the legal argument failed and that Hamdi himself is not a threat.
“I think if you went to mat on this and made it a cause celebre, refused him access to counsel and process and … in the next breath you hear he may be released, that’s a major embarrassment to the United States,” Greenberger said.
The administration may also be cutting its losses, because a renewed federal court fight over Hamdi might result in another defeat for the government, Greenberger said.