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Published: Friday, 10/1/2004

No burden of proof

A GOVERNMENT that imprisons one of its citizens in solitary confinement for almost three years, and considers him a national security threat so dangerous he is held incommunicado and denied access to a lawyer, must have pretty solid reasons to do so, right?

Certainly when the Bush Administration declared Yaser Hamdi, a U.S. citizen captured in Afghanistan in late 2001, an enemy combatant, one would assume the rationale included serious acts of sedition.

But when pressed to show its cards, the government folded. As a result, Mr. Hamdi was scheduled to board a U.S. military aircraft and finally fly to the country he calls home. The 24-year-old was born in Baton Rouge, La., and raised in Saudi Arabia.

During the U.S. military campaign in Afghanistan, he was captured fighting alongside the Taliban and imprisoned at Guantanamo Bay in Cuba. He was transferred to a Navy brig in the U.S. when officials realized he was a U.S. citizen.

Mr. Hamdi's continued incarceration without due process sparked extensive public debate about the unlimited power of government to indefinitely detain prisoners in wartime.

Eventually Mr. Hamdi's case prompted the Supreme Court to rule that enemy combatants like him could not be held endlessly without a chance to contest their detention. In June the high court said that "war is not a blank check for the President." The decision was a major setback for the Bush Administration.

But rather than aggressively make its case for detaining a U.S. citizen for close to three years, the government blinked.

Suddenly the prisoner was facing no criminal charges and the Justice Department was negotiating his release on the conditions - almost comical - that he stay in Saudi Arabia for a time and report any possible terrorist activities. That's enforceable how?

Mr. Hamdi will also be required to renounce his U.S. citizenship, which hardly mattered to someone who has always considered himself a Saudi citizen.

So why was he held by the U.S. military for all this time only to be flown back to his family by the Defense Department as soon as transportation could be arranged? The Justice Department's spin was that Mr. Hamdi no longer posed a threat to the United States and no longer had intelligence value, leading to the decision to release him.

A more plausible explanation would be that the government's case for imprisoning Mr. Hamdi since 2001 was just too weak.

"It's quite something for the government to declare this person one of the worst of the worst, hold him for almost three years and then, when they're told by the Supreme Court to give him a fair hearing, turn around and give up," said David Cole, a Georgetown University law professor.

It is surely a fearsome government that can incarcerate citizens as serious national security threats without ever meeting any burden of proof.



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