What "Enemy Combatant"?

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After nearly 3 years, it looks like Yasser Hamdi is about to be sprung from the Navy brig to which he was consigned by the Feds' arbitrary determination that he was an "enemy combatant." Hamdi may well have been a full-fledged member of the Taliban or even Al Qaeda, but it would have been nice if the Feds had had to prove that in open court.

However, when confronted by a man who has at long last been given his right to a day in court, it turns out that John Ashcroft's Justice Department either can't be bothered to prove that Hamdi is a real menace to our security, or perhaps more likely, admit that he never posed much danger to our national security. The Hamdi case screams out the danger of confining people indefinitely on just the say so of Federal officials.

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  1. What a farce.

    I found this bit remarkable:

    “…People familiar with the negotiations have said that the terms of release are likely to include Hamdi renouncing his U.S. citizenship and accepting travel restrictions and some monitoring by Saudi officials. In addition, he may have to agree not to sue the U.S. government over his detention.

    Ignoring the possibility that the Saudis may be more inclined to behead Hamdi rather than monitor him, is the typical American, assuming he really is oh so dangerous, supposed to feel better knowing that the Saudis are keeping an eye on him?

    Also, does holding someone in solitary confinement while under negotiations constitute duress? My guess is…um…probably. I do quite a bit of negotiation in my business, and, boy, that’s one heck of a negotiation technique the government?s got going there! It’s nothing like what they had goin’ at Abu Gharib, but, still, solitary confinement can be very persuasive, I’m sure.

    Renounce your citizenship (your right to a trial) or we won’t let you out of prison–once again, life imitates Kafka.

  2. I dunno, I’ve got fewer concerns about how the Feds handle people they picked up in Aghanistan during combat than I do about, say, citizens arrested in the States. I think it was a major mistake to bring Hamdi stateside because of how it causes confusion over what standards to apply, and once he was here he was entitled to habeas corpus. In all I suspect he’s a bad guy and the only reald drawback to having the Saudis keep tabs on him is that they aren’t very good at it.

  3. Now they just need to figure out a country that will take Jos? Padilla and they can flush the whole “We can Detain American Citizens Idefinitely on the President’s Say-So” right down the Memory Hole.

  4. Shelby,

    If you mean that Hamdi either should have been tried for treason or treated like a prisoner of war then I agree with you…

    …That is, maybe he should have been treated the way prisoners of war under treaty have traditionally been treated rather than having been treated the way some prisoners of war were treated in U.S. custody, which, quite frankly, wasn’t much of a treat.

  5. Ken, as you have doubtless read elsewhere, many if not all of the Afghan captives are not prisoners of war as defined in the relevant treaties. They are thus not entitled to prisoner of war treatment. Granting them the benefits of prisoner of war treatment removes an incentive from other nations to conduct themselves in a lawful manner.

    In short, don’t reward them for acting like unlawful combatants, because you tend to get more of what you reward.

  6. RC Dean,

    I’m not trying to make a legal argument. We’d be much better off if we had treated prisoners of war as if they were prisoners of war under the Geneva Conventions regardless of whether or not the Geneva Conventions applied.

    In the Schlesinger report, much of what happened at Abu Gharib was blamed on the abandonment of the Geneva Conventions for Afghan prisoners and the subsequent policy confusion this abandonment caused. Certainly, Abu Gharib cost us a lot more than whatever we gained by not adhering to the Geneva Conventions in Afghanistan.

    Prisoners of war are supposed to be released after hostilities cease, but in the case of Hamdi, the government seemed to think that he was so dangerous that they never wanted to release him. Rather than declaring Hamdi an enemy combatant and stripping him of his rights as a citizen, perhaps we could have tried him for treason, and having failed to convict, we might have kept Hamdi behind bars as a prisoner of war.

    Wasn’t the desire to keep Hamdi locked up even if hostilities ceased the reason the government fought not to treat him like a prisoner of war?

    Anyway, I?m more concerned about avoiding the kind of incompetence that leads both to the sort of humiliation we endured at Abu Gharib and to release of enemy fighters than I am about influencing the behavior of our adversaries.

  7. It seems to me that if this guy really did something wrong it should be possible to convict him, or at least get a plea bargain. The whole deal of requiring him to forfeit citizenship just seems creepy. And Saudi Arabia seems the wrong place to send him. They might kill him, which is particularly bad if it turns out that he’s innocent. They might leave him alone to do his thing, which is particularly bad if he’s indeed a terrorist. Or they might treat him as poorly as they treat anybody else who isn’t in the royal family, which if he’s innocent is better than killing him but still not so great.

    I realize that no matter what the gov’t does with this guy there are risks, but sending him to Saudi Arabia just seems to involve far too many worst-case scenarios and far too few up-sides.

    Can’t we just do with him what we do with lots of other really shady characters in this country and give him a job as a prison guard or as a cop in the LAPD’s Rampart CRASH unit?

  8. Note that the article states that Hamdi was caught with Taliban forces, however, the government has never proven this assertion.

  9. So, after Hamdi v. Rumsfeld forces the government’s hand, the government just backs down?
    What’s freighting is the possibility that the government was just seeing how much they could get away with.

    Doesn’t Hamdi have some recourse for compensation for the three years of his life that the government ripped off? It seems that they owe him about a gazillion dollars.

    The Hamdi case screams out the danger of confining people indefinitely on just the say so of Federal officials.

    Absolutely! Our liberty is threatened when the government can get away with this type of travesty. What about charges being brought against the government officials responsible for violating Hamdi’s civil rights?

  10. And he’s apparently such a dangerous enemy combatant that he’s going to be allowed to return to Saudi Arabia, fomenter of the most dangerous Wahhabist terrorism.

    Yep. Nice job.

  11. And he’s apparently such a dangerous enemy combatant that he’s going to be allowed to return to Saudi Arabia, fomenter of the most dangerous Wahhabist terrorism.

    Yep. Nice job.

  12. The Hamdi case screams out the danger of confining people indefinitely on just the say so of Federal officials.

    Ron, I didn’t realize you were so anti-American. Maybe you could use a nice Cuban vacation with open air rooms. It will help to get those evil liberal thoughts out of your head.

  13. “What about charges being brought against the government officials responsible for violating Hamdi’s civil rights?”

    But that might start a pattern of ACCOUNTABILITY in the government. We can’t have that, now can we, not with those terrrists out there…

  14. I would like to comment on what thoreau said in his first sentence:

    It seems to me that if this guy really did something wrong it should be possible to convict him, or at least get a plea bargain.

    You’re correct there, thoreau, but follow that suspicion to where it leads. The whole basis for the rule of law is the belief that the best way to handle legal matters rests in a fair, open process for analysis of the facts pertaining to the case. What does it say about our support for the rule of law when our leaders are pulling this sham where they insist there is something magical about terrorism suspects that makes it impossible for them to be convicted in a fair, open proceeding?

    Why are we letting these autocrats perpetrate this wretched farce? Fair, open court proceedings are the only way the facts of the case can be justly decided.

    The release of Hamdi is tacit admission of that fact.

  15. RC Dean,

    I’m no expert on the Geneva convention, but I believe there’s supposed to be an international oversight process for classifying people as “illegal combatants.” The government can’t just make the assertion.

  16. Randy,

    I suspect “our leaders” would argue that publicly revealing the evidence against a terrorist would out operatives and allow aQ a way to know how much we know. Similar to the difficulties our justice system has traditionally had with handling organized crime.

  17. crimethink,
    I agree that they would say that. I also believe that’s a specious argument for not revealing who we have. I mean, if Assam calls Mohammed and the line is dead, Assam knows that Mohammed is in custody. It’s that simple. Ashcroft publicly confirming that we have Mohammed adds nothing to the equation, as far as helping the other guy goes.

    So think about the nature of this little bargain these cretins are offering us. We will suspend Habeus Corpus, the lynchpin of every other law, in order that we not offically confirm Assam’s pre-knowledge about Mohammed? Jesus Christ! It doesn’t make any goddamn sense.

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