U.S. may seek to make Hamdi case `bulletproof'

Allowing lawyer is seen as shield from criticism

December 04, 2003|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - When the Pentagon said this week that it would allow an American citizen being held as an enemy combatant to meet with a lawyer, which it had refused to do for months, it appeared on the surface to be a major concession to the critics of the administration's policy of detaining terrorism suspects.

But it might be that it was less of a substantive change than merely a calculated gesture to help the administration shield its policies from criticism and reversal by the courts. The citizen, Yaser Esam Hamdi, an American of Saudi descent who was apparently captured on the battlefield in Afghanistan, is under indefinite detention in a Navy brig in South Carolina.

Viet Dinh, a former associate attorney general in the Bush administration who played a major role in drafting the Justice Department's antiterror policies, said in an interview yesterday that the decision to give Hamdi access to a lawyer was "a significant development in the case, one that moves the government to a more sustainable position before the court." But Dinh, who has since returned to his professorship at Georgetown University Law School, also said the administration needed to provide some better form of due process "to make its case bulletproof."

The Pentagon statement about Hamdi's ability to confer with a lawyer came just a day before the Justice Department was obliged to file a brief with the Supreme Court asking the justices to uphold an appeals court ruling that President Bush was within his rights as a wartime president to detain Hamdi indefinitely without access to a lawyer.

The brief, however, does not retreat from the position the administration has taken all along, that the president has the authority to detain a U.S. citizen indefinitely without consulting a lawyer.

The administration does not concede in the brief that it has any obligation to allow Hamdi to meet with his lawyer, Frank Dunham, the federal public defender in Virginia, although a footnote in the brief does say that the two will soon be able to meet. The Pentagon explicitly said its decision was at its discretion and was taken only because intelligence officials had finished their interrogation of Hamdi and no longer felt the need to keep him incommunicado.

"They are trying to change at least the perception of unfairness that existed and show that they are giving this U.S. citizen some kind of rights," said Pamela S. Falk, a professor of International Law at the City University of New York.

Dennis W. Archer, the president of the American Bar Association, said yesterday that while he was encouraged at the decision to allow Hamdi to see his lawyer, he was disappointed that the Pentagon said that it was doing so only as a discretionary matter and not setting any precedent.

Nonetheless, the permission for the visit with a lawyer might help the government's case in the Supreme Court.

The Supreme Court case involves not only the issue of whether an enemy combatant may consult with a lawyer, but whether he may be detained solely on the assertion of the president and the executive branch with no recourse to any judicial review.

Dinh has suggested since leaving the government that the process needs to be reviewed.

"Two years into the war against terror, along with the luxury of the relative safety that the administration has provided, has afforded an opportunity to have a conversation about a more systematic and sustainable set of procedures" for dealing with enemy combatants, he said.

His comments underline the fact that allowing Hamdi to see his lawyer does not necessarily mean anything will come of it. The administration contends in its brief that Hamdi is not entitled to challenge his detention nor his designation as an enemy combatant.

A second former senior official in the Bush Justice Department, Michael Chertoff, has also called for new methods of dealing with the due process rights of enemy combatants. Chertoff, who was the head of the department's criminal division, is a federal appeals court judge in New Jersey.

In addition to the decision to allow Hamdi to consult with his lawyer, the administration has made other seeming concessions to foreign allies as to the circumstances in which their citizens detained at Guantanamo Bay, Cuba, might be tried before military commissions. Last month, the Australian government said that the Bush administration agreed to allow an Australian defense lawyer to meet directly with and participate in the defense of David Hicks, an Australian citizen at Guantanamo who might soon face a tribunal.

The Pentagon announced yesterday that Marine Corps Maj. Michael Mori has been assigned to represent Hicks, the first foreign captive to be given a U.S. lawyer.

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