That's What I'm Talking About!

Jacob Sullum | September 23, 2004

The imminent release of Yaser Esam Hamdi, one of two U.S. citizens (that we know of) held as "enemy combatants," suggests how slight the justification for such detentions can be. "As we have repeatedly stated," the Justice Department says, "the United States has no interest in detaining enemy combatants beyond the point that they pose a threat to the U.S. and our allies." So the Bush administration expects us to believe that Hamdi was an unacceptable threat to U.S. security--presumably because he would head straight back to Afghanistan to fight alongside the Taliban--for nearly three years, up until the moment when the Supreme Court said the government had to back up that claim with evidence. Now there's no problem with letting him go free, as long as he goes back to Saudi Arabia. As ACLU Executive Director Anthony Romero says, the decision "makes you wonder: Why was he really being held in the first place?"

Comments

Shannon Love|9.23.04 @ 4:15PM|#

The Hamadi case represents a tradeoff.

The government had to tradeoff the cost of keeping him versus the cost of revealing intelligence and methods that the courts required. It is the old dilemma faced by prosecutors trying to convict spies during the Cold War. The spies could disrupt their trial by simply demanding that the classified information they stole be produced in open court.

Keeping Hamadi in custody now could require possibly sweeping revelations about how American intelligence works, who helps us and what we actually know. Given that the networks that Hamadi had contact with are most likely gone he won't constitute a direct threat any longer. The interest of justice for any part he played in a conspiracy to murder his countrymen will just have to fall by the wayside.

|9.23.04 @ 4:26PM|#

Shannon Love,

The government had to tradeoff the cost of keeping him versus the cost of revealing intelligence and methods that the courts required.

I hate to break it to you, but there are very good methods of doing that without even Hamdi's lawyers knowing about said information. All they have to do is an in camera meeting with the prosecutors to present their reasons for withholding such information; and 99% of the time they will get what they want. Learn something about how this works, and quit swallowing the Bush administration arugment every time.

|9.23.04 @ 4:42PM|#

Am I the only person who thinks it's a bad idea to say that a citizen will only be released from custody if he goes to a place with a theocratic gov't and a lot of terrorist sponsors?

If the guy is innocent, well, why put him through the hell of living under Saudi rule? And if he is a terrorist, is that really the place we want him going to?

I won't even try to argue that it was wrong to hold him without trial, because then everybody will jump all over me. I'll just observe that of all the places in the world to put him, Saudi Arabia somehow seems like a poor choice.

|9.23.04 @ 4:43PM|#

Shannon Love,

And the government has - under the powers granted it under the Classified Information Procedures Act (CIPA) - the latitude during pre-trial procedures to resolve questions of admissability of classified information in advance of its use in open court.

|9.23.04 @ 4:46PM|#

Shannon Love,

Also, the guy's name is "Hamdi."

Given that the networks that Hamadi had contact with are most likely gone he won't constitute a direct threat any longer.

No one has ever demonstrated that Hamdi had any contact with any networks.

|9.23.04 @ 5:23PM|#

As part of the deal, Hamdi is to give up his US citizenship. May be the US government is planning to arrest him again, but this time send him to Gitmo since he is no longer a US citizen:-)

Shannon Love|9.23.04 @ 6:38PM|#

Jason Bourne,

"Learn something about how this works, and quit swallowing the Bush administration arugment every time."

I do know something about how this works which is I will not accept the the blanket assertion that since there is no public information on why Hamdi was held that therefor there was no valid reason for holding him. In my experience the ACLU is utterly clueless when it comes to matters touching on the military or intelligence work.

CIPA will not help in this case. The problem here is that the government must reveal enough information publicly to a standard federal judge to justify holding the defendant. CIPA applies to the use of information during discovery and trial.

The court systems are poorly equipped to deal with classified information. FISA courts do hear writs of habeas corpus and the standard court system has no special security arraignments. No prosecutions can be carried out using classified information that is not eventually made public. There are no secret trials. Bringing Hamdi to trial would have meant revealing what the government knew about him and how they knew it.

This could all be bureaucratic ass covering. They dinged Hamdi up and didn't release him because it would look embarrassing. It could also be that we have a valid reason to keep him but that we don't have the legal mechanism to process his case so sending him to house arrest in Saudi Arabia is the best solution.

I will point out that assuming the government is up to no good in an area where by definition we have no idea what is really going on is just silly. We have no hardcore information one way or the other

|9.23.04 @ 6:50PM|#

I will point out that assuming the government is up to no good in an area where by definition we have no idea what is really going on is just silly. We have no hardcore information one way or the other

I subscribe to the quaint notion that when the gov't wants to do something drastic (like, say, detain a guy for a few years, insist that he has no right to a trial, and then finally release him on the condition that he forfeit his citizenship) the burden should be on the gov't to prove that it's acting properly, not on me to prove that the gov't is acting improperly. Especially when information is scant.

Anyway, Shannon, you claim to have some expertise in these matters. Could you tell us something about your background? I've told everyone here that I'm a physicist, which admittedly has nothing to do with the Hamdi case, but at least I've said something about myself. Can you tell us anything about your own background, so we know why your word should be taken any more seriously than mine?

I realize that if you work for the CIA you probably can't come out and say "I'm the CIA station chief in Tehran" or whatever, but surely you can say "I've spent approximately X years working in various responsible jobs for the intelligence community."

|9.23.04 @ 6:56PM|#

BTW, Jason Bourne has already established his qualifications to speak on this subject in 2 awesome movies.

Did I mention that in the first movie Bourne had a residence in Paris? I'm just saying.

|9.23.04 @ 8:30PM|#

thoreau,
You are kickin' ass on this topic.
I'm with you. I hope I speak for many.

|9.23.04 @ 8:36PM|#

An anarchist who hopes that he speaks for many?

You're going soft, Ruthless! ;)

|9.23.04 @ 8:46PM|#

Shannon Love,

I do know something about how this works which is I will not accept the the blanket assertion that since there is no public information on why Hamdi was held that therefor there was no valid reason for holding him.

You know nothing about it; you've demonstrated that well enough. Hamdi could be easily held and even tried with information from in camera proceedings that were never, ever made public, or put into any discoverable written record (be it under FOIA, common law right to know, etc.). And I did not make the argument are now implying that I made; indeed, if anyone made an argument for guilt or innoncence, you did.

In my experience the ACLU is utterly clueless when it comes to matters touching on the military or intelligence work.

Out of curiosity, when the fuck did I mention the ACLU? Can you bring in any more non-sequitors?

CIPA will not help in this case.

Sure it will; that you are completely ignorant of the mechanics of CIPA does not mean that it will not help.

The problem here is that the government must reveal enough information publicly to a standard federal judge to justify holding the defendant.

Again, this can be all in camera; and if the judge does not accept their rationale, he will not reveal the information behind it. The government can simply drop the charges if it wants to. The government is granted significant discretion in this area, as anyone who has studied national security case law ill tell you.

CIPA applies to the use of information during discovery and trial.

It applies to all aspects of a criminal case where national security issues are at issue; including preliminary matters such as this.

The court systems are poorly equipped to deal with classified information.

Says you.

No prosecutions can be carried out using classified information that is not eventually made public.

There you are (as usual) just completely wrong; there are numerous cases where classified information has never been made public, but which has also been allowed into an in camera proceeding.

There are no secret trials.

Who said anything about "secret trials?" This isn't a star chamber proceeding after all. We're discussing the coming of classified information into a public trial, not a "secret trial." More non-sequitors from you.

|9.23.04 @ 8:55PM|#

thoreau,

I subscribe to the quaint notion that when the gov't wants to do something drastic (like, say, detain a guy for a few years, insist that he has no right to a trial, and then finally release him on the condition that he forfeit his citizenship) the burden should be on the gov't to prove that it's acting properly, not on me to prove that the gov't is acting improperly. Especially when information is scant.

Well, the sort of burden shifting you see on the part of the government in the Hamdi and Padilla cases is the classic stuff you see out of the executive branch under any President, no matter what the party. They claim all manner of rights under Article II after all.

Anyway, Shannon, you claim to have some expertise in these matters.

She doesn't have any expertise; I doubt she ever heard of CIPA before I mentioned; and she certainly doesn't understand how it is applied in a criminal trial. For a nice primer on CIPA see US v. Lee 90 FSupp 2d 1324 (2000); it will demonstrate that Shannon Love is out of her element.

I realize that if you work for the CIA you probably can't come out and say "I'm the CIA station chief in Tehran" or whatever, but surely you can say "I've spent approximately X years working in various responsible jobs for the intelligence community."

People who work for the intelligence community generally know jack squat about these sort of issues.

|9.23.04 @ 8:55PM|#

Judging from the antipathy between Jason Bourne and Shannon Love, I'm going to go out on a limb and guess that Shannon is NOT an intelligence professional. Instead, she is....


actress JULIA STILES!

Jason is just angry at Julia for her part in the project that sought to manipulate him. (Did I mention that this project was headquartered in Paris? And that Jason had a residence in Paris? I'm just saying.)

Anyway, yesterday my DVD of Hamlet arrived. I think Julia did an excellent job, it's too bad that she had to act with Bill Murray, who can do a good job in comedy but was horrible as Polonius.

Just having some fun here, folks! :->

|9.23.04 @ 8:56PM|#

thoreau,

All Stiles does is stand around and look pouty; kind of like Shannon Love.

|9.23.04 @ 10:04PM|#

"An anarchist who hopes that he speaks for many?"

You have to parse his comments carefully. He's probably referring to the many voices in his head.

|9.23.04 @ 11:14PM|#

Keep on keepin' on, Thoreau.

I can't wait until the Gitmo detainees get Asscraft into court in D.C. and demand a jury trial - they've been held long enough. They don't pose a threat. There's no basis for holding them. Let 'em go.

Preferably in your neighborhood though, not mine.

|9.24.04 @ 1:09AM|#

I can't wait until the Gitmo detainees get Asscraft into court in D.C. and demand a jury trial - they've been held long enough. They don't pose a threat. There's no basis for holding them. Let 'em go.

I never said they should be let go. I said they should be put on trial. If they're as guilty as you say they are (and I suspect that many or all of them are) then what do you have to worry about?

To those who say "the innocent have nothing to fear" from a gov't with the power of indefinite detention, I say that if you're right about these guys then what do you have to fear from a fair trial?

And as for who should be put in whose neighborhood, here's an idea: What if the person who decided to hold Hamdi without trial, and then forced Hamdi to renounce his citizenship, became the District Attorney in your locale? Surely you won't be at all worried about the decisions he might make if there's an alleged problem with your tax return. Surely you won't have any worries if a cop alleges problems with the storage or registration of your firearms. And you'll have nothing to fear from him if your children get bruised playing and an over-zealous teacher reports the bruise to this prosecutor. For that matter, if your business is accused of violating some obscure law, you can be confident that this prosecutor will be fair in handling your case, right?

See, there's the very real danger that these powers will be extended from terrorism cases to also include, say, tax cases, business regulation, child protective services, and gun laws. (Hey, I just covered 4 libertarian/conservative sore spots. Cool!)

I can't believe that on this forum, of all places, I actually get into arguments on a regular basis with people who think there's nothing wrong with letting the executive branch serve as judge, jury, and executioner.

|9.24.04 @ 2:12AM|#

thoreau,

Speaking of actresses, do you think that Alexa Davalos is hot?

|9.24.04 @ 2:34AM|#

I didn't know who she is, so I googled her. The picture on IMDB looked good. I have a thing for brunettes. (I married one, after all.)

|9.24.04 @ 11:18AM|#

I will not accept the the blanket assertion that since there is no public information on why Hamdi was held that therefor there was no valid reason for holding him.

yet you seem willing to assume that the government must have had such information privately, and that some sensitive intelligence mechanism was used for gathering same, and that it would be destroyed by the exposure of same.

in the end, we must admit that they could be holding hamdi because he slept with jenna bush once, for all we know.

in all, i think you accord far too much sophisication and competence -- not to mention benevolence -- to a government that has demonstrated a woeful lack of both repeatedly (including but not limited to the bush admin). a government whose system of law is based on transparency cannot be well served by indiscriminate secrecy (also a hallmark of this government, as seen by their massive move to classify and redact all manner of documentation heretofore released).

i would be much more moved by the necessity of these sorts of shennanigans if we had never before been able to prosecute a terrorist against whom we had evidence. but, with sheik omar abdel rahman in the federal pen, the example indicates the opposite.

|9.24.04 @ 11:22AM|#

I can't believe that on this forum, of all places, I actually get into arguments on a regular basis with people who think there's nothing wrong with letting the executive branch serve as judge, jury, and executioner.

indeed, thoreau -- this place is often far from libertarian. i take that fact as a sobering reminder of how far mainstream america has evolved from its republican roots, despite what the mock constitutional fundamentalists (a la scalia) believe or say.

many americans *want* dictatorship and call for it all the time, usually without realizing that they are.

NickM|9.26.04 @ 12:43AM|#

The U.S. government asserts Hamdi took up arms against the United States in the service of a foreign power. That is considered by federal law to be a voluntary renunciaton of one's citizenship. Now, if Hamdi asserts "Yes. I did renounce my citizenship. I owed no allegiance to America when I fought against it.", then he committed no crime against the U.S. - he was simply an enemy combatant possessing Saudi citizenship (as his parents were Saudi nationals).
What would you expect to happen to him at that point other than repatriation to Saudi Arabia? the U.S. has freed large numbers of detained enemy combatants who were deemed to no longer pose a danger. Why would this one be any different?

Nick

|9.26.04 @ 2:18AM|#

NickM-

Did he admit to being an enemy combatant?

NickM|9.26.04 @ 8:33PM|#

Hamdi has not publicly admitted to being an enemy combatant. In fact, such an admission would have doomed his lawsuit.
What he has admitted to in sealed court papers (or will be admitting to in sealed papers in conjunction with his release), I do not know.

Nick

|9.27.04 @ 3:34AM|#

Did I mention that in the first movie Bourne had a residence in Paris? I'm just saying.

JB reappears after his non-absence!

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