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Since Sept. 11, 2001, government lawyers have argued that normal rules of law do not apply to terrorists — whether they are picked up on the battlefield or inside U.S. borders. But with former DOJ officials raising questions, allied nations crying foul, and Supreme Court review on the horizon, the Bush administration seems to be maneuvering to beat back criticism of its most controversial policies. Last week, the Pentagon announced that after nearly two years in custody, Yaser Esam Hamdi, an American citizen held in a military brig as an enemy combatant, and David Hicks, an Australian citizen held at the U.S. naval base at Guantanamo Bay, would each be permitted to meet with a defense attorney. The timing of the announcements — on the eve of a Justice Department filing to the Supreme Court in response to Hamdi’s petition for certiorari and three weeks after the Supreme Court agreed to take up a case challenging military detentions at Guantanamo Bay — may have been a calculated effort to influence the Court’s consideration of both cases, say several legal experts. “The question of whether the government can pick up anybody, anywhere in the world, and lock them up without reasonable legal limits is now going to be reviewed,” says Georgetown University law professor David Cole. “The administration is trying to reassure those who will be assessing the validity of these detentions that the government can be trusted.” But Supreme Court review is just one source of increasing pressure on the administration’s terrorism policies. Two former Justice Department officials drew attention recently by suggesting that the detention of U.S. citizens as enemy combatants should be reconsidered. In their DOJ posts, Michael Chertoff, former head of the Criminal Division, and Viet Dinh, a chief architect of the USA Patriot Act, served as aggressive spokesmen for the administration’s war on terrorism, so their criticism, while temperate, is particularly powerful. “To have former officials come out and say, ‘I don’t know if these legal positions are sustainable,’ has got to shake them up,” says Timothy Lynch, director of the Project for Criminal Justice at the Cato Institute, a libertarian think tank. And additional dissent may soon come from another surprising corner. In an unusual move that will place them at odds with their commander in chief, uniformed military defense lawyers in the Pentagon’s Office of Military Commissions are preparing an amicus brief in the Guantanamo habeas case supporting detainees who are seeking federal court review of their detentions, say sources familiar with the brief. The defense team, led by Air Force Col. Will Gunn, is likely to argue that preserving ultimate Supreme Court review is essential to the integrity of military commissions, according to those sources. Gunn declined to comment. Meanwhile, diplomatic concerns have delayed the start of military commission proceedings at Guantanamo Bay and continue to cause friction with the British government. After publicly guaranteeing that Australian and British citizens charged before commissions will not face the death penalty, the Pentagon is now being accused of offering more protections to detainees who come from Western countries. “How can you say there is one set of procedures for our allies and a separate set for everyone else? How is that going to look to the world?” asks Robert Goldman, an international law professor at American University Washington College of Law. Military commission spokesman Maj. John Smith insists that each case will be analyzed on the same criteria. “We evaluate each detainee on an individual basis. We look at the facts of that specific case,” Smith says. “Our review is not based on the country, it’s based on the facts.” HAMDI AND HICKS The indefinite detention of individuals caught up in the war on terrorism has stirred intense debate about the powers of the executive branch during a time of war. The cases of Hamdi and Hicks — both captured in Afghanistan while allegedly fighting for the Taliban — have moved to the forefront of the clash between individual rights and national security. Hicks, an Australian citizen, has been detained since January 2002 at Guantanamo Bay, along with roughly 660 other individuals, mostly those suspected of being Taliban and al Qaeda fighters. According to family members, Hicks, who had fought in Yugoslavia with the Kosovo Liberation Army, had traveled to Pakistan to study Islam. In July, the 28-year-old Hicks was selected by the White House to potentially face charges before a military commission. Hamdi was also initially sent to Guantanamo Bay, but later transferred to a U.S. military prison in Norfolk, Va., when it was discovered that he was an American citizen. Since July, Hamdi has been held at a naval brig in Charleston, S.C. Both are parties in habeas corpus proceedings that have landed in the lap of the Supreme Court. The two cases challenge separate aspects of government detention policies that blend principles of criminal and military law and rely on courts granting great deference to the executive branch. On Nov. 10, the Supreme Court agreed to review a March 2003 ruling by the U.S. Court of Appeals for the D.C. Circuit that federal courts lack jurisdiction to review the detentions of Hicks and several other prisoners at Guantanamo. The justices are currently considering whether to take up Hamdi’s petition. Lawyers involved in the cases say that allowing Hicks and Hamdi to consult with lawyers now signals that the administration may be responding to the pressure of judicial review. “This happened because the Supreme Court said it might have jurisdiction. It would never have happened otherwise,” says Thomas Wilner, a partner in the D.C. office of New York’s Shearman & Sterling who represents 12 Kuwaiti citizens held at Guantanamo Bay in the case before the Supreme Court. “It’s a shame the administration needs to be put under pressure to do what’s right. Allowing someone to see a lawyer should be the normal course of events.” Former DOJ official John Yoo, who analyzed legal issues related to terrorism and detentions as an attorney in the DOJ Office of Legal Counsel, says he does not feel that the administration is attempting to influence the Supreme Court. “I see this as a sign of a system that is still developing,” says Yoo, a visiting professor at the University of Chicago Law School. “There is always going to be a fundamental tension between the purpose and processes of our criminal justice system and the military-intelligence world. We’re still figuring out what rules apply.” While providing Hamdi access to a lawyer, the administration does not back off from its position that individuals designated enemy combatants — even those who are U.S. citizens — can be held indefinitely without access to legal counsel. In a Dec. 2 statement, the Defense Department asserts it will allow Hamdi to meet with an attorney as “a matter of discretion” because it has completed interrogations and intelligence gathering. “In one sense, they’ve softened, but they haven’t really changed the legal standard,” says Lynch of the Cato Institute. “When push comes to shove, they are still arguing that once the president designates someone an enemy combatant, that person is stripped of all rights to due process in our civilian court system.” The limitless detention of Hamdi and Jose Padilla — the only other known U.S. citizen to be declared an enemy combatant — has been the subject of recent commentary by Chertoff and Dinh. Chertoff, now a judge on the 3rd Circuit, spoke up in a Nov. 30 article in The Weekly Standard. “We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available,” Chertoff wrote. Dinh, a Georgetown University law professor who served as assistant attorney general for legal policy in the Justice Department, has gone even further in questioning the administration’s case. “The initial government position that would not provide access to counsel and no process for these individuals was flawed,” Dinh said last week on National Public Radio. “The granting of access to counsel is a significant step to making the case sustainable, and it can move further by promising some sort of legal process for these persons to challenge the facts of their detention.” FOREIGN PRESSURE The pressure from foreign governments has focused on the lengthy imprisonment of hundreds of detainees at Guantanamo Bay. More than 40 nations have citizens held at Guantanamo Bay’s Camp X-Ray. By naming Hicks and two British citizens in the initial group of six eligible to face a military commission, administration officials hoped to indicate that all detainees would meet equal treatment and to deflect the concerns of U.S. allies that their citizens would be held indefinitely without receiving due process. Instead, the designation sparked unforeseen protest in both Australia and Britain over military commission procedures and has resulted in extensive negotiations with both nations. On Nov. 25, the Pentagon reached an agreement with Australia by consenting not to monitor conversations between Hicks and his attorney; not to rely on secret evidence that would require closed proceedings; and to consider allowing Hicks to serve his sentence in Australia if convicted. A similar resolution was expected to be reached with the British government during President George W. Bush’s recent trip to the United Kingdom, but negotiations are ongoing. “We have discussed the entire range of options — returning the detainees back to the U.K., trying them before military commissions, or it could be a mix,” says Smith, the spokesman for military commissions. Last week, the Pentagon assigned Hicks military defense counsel in accordance with military commission rules that require a defense attorney to be provided in advance of trial. The move to involve defense counsel before official charges have been brought suggests that lawyers may be working out a plea bargain. According to a Dec. 3 statement released by the Pentagon, Hicks’ designated military lawyer, Marine Corps Maj. Michael Mori, will “inform [Hicks] of his choices to retain a civilian defense counsel and an appropriately cleared Australian attorney consultant.” Mori, who graduated from Western New England School of Law in Massachusetts, has spent seven years as a military trial lawyer, including a stint as a senior defense counsel for U.S. Naval Legal Services Office Pacific. Steven Watt, a lawyer with the Center for Constitutional Rights in New York, which filed the habeas petition on behalf of Hicks, says the government’s approach to detention and trial has been arbitrary. “Obviously, the government made significant concessions on behalf of Australian nationals,” Watt says. “The same concessions should be applied across the board. It shouldn’t depend on how vigorously your country of origin advocates on your behalf.” He adds, “I don’t think it’s coincidence that all these changes came after the Supreme Court granted cert. It feels like they’re trying to step up matters and show the Supreme Court they’re actually affording some process, albeit — in our view — sham process.”

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