[IP] LA Times: Crying Wolf in the War Against Terror
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Dave Farber +1 412 726 9889
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From: "Robert J. Berger" <rberger@xxxxxxx>
To: Dave Farber <dave@xxxxxxxxxx>, Dewayne Hendricks <dewayne@xxxxxxxxxxxxx>
Date: Tue, 17 Aug 2004 12:09:58 -0700
Subj: LA Times: Crying Wolf in the War Against Terror
[This should add context to the Gilmore discussion and view any of the Bush
Admin's pronouncements on why we need to limit civil liberties to fight
terrorists - Rob]
Crying Wolf in the War Against Terror
By Andrew Cohen Los Angeles Times
Monday 16 August 2004
http://www.latimes.com/news/printedition/opinion/la-oe-cohen16aug16,1,674061
.story
The feds face a stunning blow to credibility by releasing a long-jailed U.S.
citizen.
"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 Taliban 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 story 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.
--
Robert J. Berger - Internet Bandwidth Development, LLC.
Voice: 408-882-4755 eFax: +1-408-490-2868
http://www.ibd.com
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