Crying Wolf in the War Against Terror: No Case Against Hamdi. No Credibility.

• Originally published in the LA Times on August 16, 2004.

The feds face a stunning blow to credibility by releasing a long-jailed U.S. citizen.

By Andrew Cohen

"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.