Will Yaser Esam Hamdi Go From An Enemy Combatant to A Free Man?

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For over two years Hamdi, a U.S. citizen, has been held on a military brig. Charges have never been filed against him. He has never been in a courtroom. And only recently was he allowed to see an attorney. The president declared him an enemy combatant and essentially decided the Constitution did not apply to him. Now the U.S. is preparing to release him. [includes rush transcript]

Federal prosecutors have indicated that enemy combatant Yaser Esam Hamdi may soon be released. The U.S.-born citizen has been held since he was captured on the battlefields of Afghanistan in late 2001; he has been denied access to a lawyer throughout most of his confinement. Hamdi spent time in Guantanamo Bay’s notorious Camp X-Ray before later being moved to a U.S. Navy Brig in South Carolina. He has never been charged with a crime and has been held largely incommunicado because President Bush deemed him to be an enemy combatant.

In June, the Supreme Court ruled that as a U.S. citizen, Hamdi can not be held indefinitely without access to the U.S. legal system. This week, Hamdi”s attorneys and federal prosecutors made the surprise announcement that they were negotiating terms for his release. Part of the deal may call on Hamdi to renounce his citizenship, move to Saudi Arabia, accept monitoring by Saudi authorities, and promise not to sue the U.S. government.

  • Barbara Olshansky, attorney with the Center for Constitutional Rights. She is the author of “Secret Trials and Executions: Military Tribunals and the Threat to Democracy.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re joined by Barbara Olshansky. She is an attorney with the Center for Constitutional Rights, author of Secret Trials and Executions: Military Tribunals and the Threat to Democracy. Welcome. Tell us about this case and the significance of this man, who has never been charged for two years, about to be released.

BARBARA OLSHANSKY: Well, I think this is an interesting case, because it was always really about the President’s arrogation of power and the question of whether he had the power to detain people called “enemy combatants” without any legal rights whatsoever, and detain them indefinitely. It wasn’t really so much about Mr. Hamdi, unfortunately. And so, what we see now is once the government lost its bid to have that power, to detain people indefinitely without rights, it was faced with evaluating the evidence that it had against Mr. Hamdi. Even though it had painted him as a battlefield detainee, his lawyers had always said that he was working in Afghanistan as a humanitarian relief worker. I think what comes out now is both that the government is admitting that it lost its legal argument, and that Hamdi is not a threat and perhaps was never a threat. And now I think we have to face the question of what have we done to this man by keeping him in prison for two years.

JUAN GONZALEZ: But the government, of course, is attempting to paint the brightest picture it can, claiming that they have already gotten all of the intelligence that they needed to get out of him, and this was the reason to hold him originally was to get intelligence out of him and now they have done that, so, they no longer need to hold him.

BARBARA OLSHANSKY: I think that’s really the critical point here. Because the government really has been saying, both in Hamdi’s case and Padilla’s case and in the case of the people in Guantanamo, that a lot of the reason for the detention, if not solely for those people that are Americans in prison as enemy combatants, that this was investigatory detention. What the Supreme Court did say in no uncertain terms is we don’t have that in this country. We never have that. It’s never been acceptable. It’s not acceptable now. So, by releasing him, it is really — you’re right, an admission that they held him for those unlawful, unconstitutional purposes. That’s the reason for this release, that they want him to sign. The government is basically admitting by releasing him now that it was holding him for investigation only, and that it didn’t plan to charge him. They said the same thing with Padilla.

JUAN GONZALEZ: And the reason for trying to exact a promise from him not to sue, it seems to me, would be to prevent another trial situation where they would have to respond and provide information or evidence as to why they originally held him in the first place?

BARBARA OLSHANSKY: Yeah. I think that’s what’s going on now. I think under the minimal due process requirement that the court found is necessary here, that he has to go before a neutral decision-maker and he has the right to put on evidence. The government felt it couldn’t meet any case to basically support its decision to detain him. So, the thought of having to defend against a lawsuit where they would basically have to admit that they held him for an unlawful purpose I think is abhorrent. They’re trying to cut their close losses. I think one of the things that’s interesting is that they chose to do this to Mr. Hamdi, while they gave John Walker Lindh the right to go into criminal trial. That meant all of those rights that were denied Hamdi were given to John Walker Lindh.

AMY GOODMAN: What’s the difference between them?

BARBARA OLSHANSKY: Well, I think that is an interesting question. Both were alleged to have held a gun and been in or around the battlefield in Afghanistan. John Walker Lindh was raised and grew up in the United States. Yaser Hamdi grew up in Saudi Arabia. I think, you know, John Walker Lindh is the son of American parents. Yaser Hamdi is not. Drawing that conclusion, it really seems to me to have like all of the earmarkings of a discriminatory treatment, and I think that is what people have been saying that a lot of the war on terror is unfortunately very closely tied to a war on Arabs and people of the Muslim faith. I think that is how it’s being interpreted around the world.

AMY GOODMAN: Of course, John Walker Lindh was Muslim. He had converted.


AMY GOODMAN: We’re talking to Barbara Olshansky with the Center for Constitutional Rights. When does it look like Hamdi will be released?

BARBARA OLSHANSKY: According to the deal, they have asked Judge Dumar, Frank Dunham the public defender and the government have asked Judge Dumar to put off the next hearing for 21 days so they can hammer this deal out. My guess is that they’re pretty close to a deal and they’ll be able to do this within the next couple of weeks, and then I imagine that he will be released very soon after.

AMY GOODMAN: Barbara Olshansky with the Center for Constitutional Rights.

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