Hamdi: The High Cost of Freedom

After keeping him locked up in a Navy brig for almost three years, the U.S. government seems to want Yaser Esam Hamdi to just go away. Hamdi, a Louisiana native, was captured in Afghanistan in Novermber 2001. His father says Hamdi, 22, who moved to Saudi Arabia with his family as a child, was doing relief work. U.S. authorities say he was fighting for the Taliban.

It looks like we'll never know exactly what Hamdi was doing there. The U.S. has been reluctant to try Hamdi in either civil or military courts and, for over two years of his confinement, refused him access to a lawyer. The Supreme Court in June said the U.S. citizen couldn't continue to be held without charges. Now, rather than trying him, it appears the administration just wants Hamdi to disappear as quietly as possible. The terms of his release, currently being negotiated, are reported to include demands that he give up his U.S. citizenship and promise not to sue the U.S. government over his detention.

After his capture, Hamdi was brought to Guantanamo Bay. When U.S. officials discovered he was a U.S. citizen, they ended up declaring him an enemy combatant and moving him to a military brig in Norfolk Naval Station in Virginia, where he was held without legal counsel or charges filed against him. For most of the time he was held in solitary confinement, despite a lack of evidence that he presented any special security risk or danger.

In April 2004 his case made its way to the Supreme Court, where it was heard along with that of Jose Padilla, the New York native who was charged with planning to detonate a radioactive “dirty bomb.” The judges declined to rule on Padilla's case, saying the case needed to be filed first in a South Carolina court, but it stated, unequivocally, that Hamdi was long overdue for a l awyer and little bit of justice.

The cases drew the attention of civil liberties advocates, since they were two American citizens being held without the benefit of legal counsel, due process, or even having official charges made against them.

“If the government's view prevails, and it alone decides who is an enemy combatant, then there is nothing to stop it from declaring anyone - you, me or Tom Daschle - an enemy combatant, who can be detained indefinitely without trial,” wrote Columbia University law professor Michael Dorf before the Supreme Court announced the Hamdi decision.

On June 28, 2004 in a 6-3 decision the U.S. Supreme Court decided that both U.S. citizens and foreign nationals can challenge their detention through the U.S. court system. The court ruled that the government did have the authority to arrest and detain Hamdi after his capture, but that his continued detention was invalid for constitutional or statutory reasons and that he had the right to challenge his detention in U.S. courts.
The decision was lauded by the American Civil Liberties Union (ACLU) and other human rights and civil liberties groups. It was seen as a significant instance of the judicial branch standing up to the executive branch, saying the war on terror did not give the administration complete freedom to do what it pleased.

“What happened with Hamdi was a hallmark of what the Department of Justice and Bush
administration have been doing all along, which is counting on the court to stand back and let the executive branch do whatever it wants,” said Barbara Olshansky, deputy director of litigation for the New York-based Center for Constitutional Rights, which filed an amicus brief signed by 140 law professors and 19 public interest organizations on Hamdi's behalf.

Now, almost three months after the Supreme Court decision, Hamdi is still in detention.
In late August the government announced that Hamdi's release was imminent and that it was negotiating the details with his attorneys, including the revokation of citizenship and the ban on suing the government. He probably will be sent to Saudi Arabia, where he has spent most of his life. The terms are also likely to include travel restrictions and monitoring by the Saudi government.

The Washington Post called the government's decision to finally allow Hamdi to be released “an adroit backflip.”

“If such an arrangement is now possible, why was it a matter of such grave national security concern to keep Mr. Hamdi from meeting with his lawyer for so long in the first place?” he asks an August 12 Washington Post editorial.

Olshansky sees the likely provision against suing the U.S. government as proof that the length and conditions of Hamdi's detention were unwarranted all along.

“The conditions they want to put on his release are a tacit acknowledgement that he never should have been held,” she said. “They're saying we know you can sue us for wrongful arrest and detention, but now instead of acknowledging what might have been an error and apologizing to the individual, they're demanding he forfeit his rights to any kind of relief. This speaks of an administration that cares so little for humanity.”

The use of such conditions for release sets a disturbing precedent. Federal District Judge Richard Doumar, remarked as early as 2002 that Hamdi's treatment showed the government could essentially dunk enemy combatants in boiling oil if it chose to.

Now, three months after the government has been ordered by the Supreme Court to either give Hamdi his day in court or release him, it has done neither. If a deal does go through that secures his release, revoking his citizenship is the easiest way for the government to avoid culpability for the whole mess.

“I think it's ridiculous that [the government would impose such conditions on Hamdi's release] after the Supreme Court decision,” said Kit Gage, director of the First Amendment Foundation in Washington D.C. “The Supreme Court made it pretty clear they don't think the government had much of a case against him. He's been held without charges for so long, with the government calling him all the heinous names you can call someone, after they made up a new process that's not in line with the Geneva Convention, not military law, not civilian Constitutional law.”

Right now, the government is staying mum on what will happen with Hamdi. Any deals happening are being negotiated far from the spotlight. One thing is clear: Hamdi has been through an ordeal no one should have to go through, especially a citizen in his own country.

In fact, considering what he's been through, Gage notes that Hamdi may not be overly concerned with keeping his American citizenship at this point.

”If I were him I wouldn't think my citizenship had done me much good!” she said.

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