U.S. at loss on how to handle detainee

Whether U.S.-born Hamdi is still citizen will affect custody, legal options

April 22, 2002|By Laura Sullivan | Laura Sullivan,SUN NATIONAL STAFF

WASHINGTON - When Yasser Esam Hamdi, the American-born prisoner from Afghanistan, arrived at the naval base in Norfolk, Va., earlier this month, officials intended his stay in the brig to be brief while they figured out what to do with him.

But more than two weeks later, Hamdi is still there and will probably remain so for the foreseeable future. His case has become a hot potato in Washington.

By all accounts, Hamdi was born in Baton Rouge, La., 22 years ago, making him a citizen by virtue of birth even though his parents were Saudi Arabian. The family moved to Saudi Arabia when Hamdi was a child, though precisely when is not clear.

Hamdi was captured in November along with dozens of Taliban and al-Qaida fighters during a prison uprising near Mazar-e Sharif. The issue vexing the Bush administration, notably the Justice and Defense departments, seems to be whether or not Hamdi still is a U.S. citizen.

If he is not, Defense Department officials can send him back to the U.S prison camp at Guantanamo Bay, Cuba, where he had been held since Feb. 11 as a "detainee," along with hundreds of other foreigners captured during the war in Afghanistan.

But if he is a citizen and the government wishes to keep him in custody, he must be charged with a crime and provided an attorney, civil rights lawyers say.

This could pose a problem for the Justice Department, which some officials say has gathered scant evidence linking Hamdi directly to a specific crime.

Federal courts require stringent evidence of wrongdoing to prove guilt, such as witnesses, weapons or a confession. As a citizen, Hamdi cannot be tried before the closed military tribunals awaiting some detainees, where motive can be presumed, hearsay evidence is allowed and the government will be free to use classified intelligence information as evidence because it will remain secret.

In the case of John Walker Lindh, the first American captured with the Taliban in Afghanistan, government prosecutors have signaled in court briefs that they intend to rely heavily on Lindh's statements to military officers and FBI agents.

But Justice and Pentagon officials appear to be stalling over what to do with Hamdi, using the time to try to link him to al-Qaida or determine that at some point he renounced his citizenship.

Last week, when asked whether it was appropriate to keep Hamdi in jail, Attorney General John Ashcroft kicked the issue over to the Pentagon, saying Hamdi "is not in the custody of the Justice Department."

But at the Pentagon, Lt. Col. Rivers Johnson, a Defense Department spokesman, said Hamdi's situation is "going to be a Justice Department matter," although the military will work with Justice officials.

Defending custody

Defense Secretary Donald H. Rumsfeld defended Hamdi's incarceration, saying last week that the United States had the right to hold him so that he could not "go right back out and engage in battle on behalf of al-Qaida or the Taliban, as the case may be in this instance."

Rumsfeld, however, did not clarify which federal agency is handling the case. He did say, however, that one option might be to send Hamdi to Saudi Arabia to face charges.

Even Saudi Arabia's embassy in Washington seems to have distanced itself from Hamdi, who U.S. officials believe also holds Saudi citizenship.

An embassy official declined to comment other than to say that Hamdi may not be a citizen of his country.

Just because Hamdi was raised in Saudi Arabia, the official said, "that does not automatically make him a Saudi citizen."

Civil rights lawyers have been highly critical of Hamdi's continued imprisonment.

The Center for Constitutional Rights intends to ask the Justice Department in writing this week to meet with Hamdi. If the request is denied - which center officials expect it will be - they plan to try to find one of his relatives and ask permission to represent him.

"This is the very basis of the Constitution," said Michael Ratner, the center's president. "We have established over hundreds of years that there should not be the right of an executive to put somebody in jail and lock the door and not be held accountable to anyone as to why they are there.

"It's truly remarkable," Ratner said.

The center, a New York-based special interest law firm, also filed a class action lawsuit against the Justice Department last week on behalf of hundreds of foreigners held in jails on minor immigration charges, such as overstaying a travel visa.

Uncertainties remain

Because Hamdi's citizenship status has not been resolved, he has not been granted a lawyer. It is unclear whether he has asserted any rights as a citizen or whether he is aware that he could be entitled to an attorney. Defense officials have prohibited him from having visitors or any outside contact.

No records have emerged showing that Hamdi renounced his citizenship; according to law, that must be done formally in one of a handful of ways, among them doing so in writing at a U.S. Embassy.

Defense officials say that the department is looking into whether he may have "unofficially" given up his citizenship.

Ratner said that unofficially renouncing citizenship is not possible and suggested that the government is grasping at straws.

Even if officials insist that serving in a foreign armed service is grounds for stripping someone of citizenship, Ratner said, a court proceeding to revoke his citizenship still would have to have been held. No records of any such hearing have surfaced.

Even as Washington officials try to distance themselves from Hamdi, others in the state where he was born are adamant that he not be associated with them at all.

After some television stations took to calling Hamdi the "Cajun Taliban" and the "Ragin' Cajun," the University of Louisiana at Lafayette and people representing the Cajun ethnic group called the stations to demand retractions and apologies.

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