A voice for Hamdi

December 08, 2003

DON'T MISTAKE the Bush administration's decision to permit a lawyer to meet with a U.S. citizen and "enemy combatant" as recognition of Yasser Esam Hamdi's right to an attorney. The Pentagon expressly stated that its decision should not be viewed as "a precedent." The administration can cloak its turnabout anyway it wants, but the fact remains that Mr. Hamdi's birth in Louisiana and American citizenship entitle him to a lawyer -- period. A federal public defender has been arguing that point -- backed up by more than 100 law professors and legal experts -- with no success.

The timing of the government's grudging change of heart coincides with the federal public defender's appeal to the U.S. Supreme Court on Mr. Hamdi's behalf. Whatever the Defense Department's motivation, its movement on this issue is overdue. However, until the Supreme Court hears Mr. Hamdi's appeal, the significance of letting him see a lawyer remains unclear. The high court shouldn't be deterred by the government's strategy.

Meanwhile, Mr. Hamdi remains in a military jail in South Carolina, held without charge. He was picked up in Afghanistan during the U.S. invasion following the Sept. 11, 2001, terrorist attacks here. The government designated Mr. Hamdi an "enemy combatant" for allegedly fighting alongside the Taliban and supporting its rule. The designation plunged Mr. Hamdi into a netherworld of legal uncertainty and wrangling. The government has argued that the military has sole discretion over him because he is a terrorism suspect and the United States is engaged in a war on terror. It didn't matter that he was a U.S. citizen; the nation's security was at stake.

The government is treating the detention of Jose Padilla similarly. Accused of plotting to set off a "dirty bomb," Mr. Padilla, also an American citizen, is being held without charge and counsel. The government's detention of Mr. Padilla stands on even shakier ground in that he was arrested in Chicago and had briefly seen a lawyer. The government, however, is not wavering from its overall position that it is within the president's right to hold both men indefinitely and without access to a lawyer. The only reason cited for making an allowance in the Hamdi case now was that investigators had concluded their questioning of him.

Of course, what distinguishes these two men from other enemy combatants held by the United States (notably the 600 or so foreign nationals at the U.S. base at Guantanamo Bay, Cuba) is their American citizenship. As Americans, we may abhor the alleged activities of these two men, but that ought not strip them of their constitutional rights. The government applied the law differently to Mr. Hamdi and John Walker Lindh, the Arabic-speaking Californian who also fought with the Taliban in Afghanistan. Mr. Lindh had access to a lawyer and was criminally tried.

What distinguishes America is our system of justice and our adherence to the rule of law. U.S. citizens, regardless of their actions, have an expectation that their rights under the law will be respected and protected.

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