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Just two weeks ago, the United States government released Yaser Esam Hamdi from the Navy brig in Charleston, S.C. The next day, Hamdi landed in Riyadh, Saudi Arabia and immediately renounced his American citizenship. Hamdi was the first U.S. citizen whom the Bush administration had indefinitely detained by designating him an “enemy combatant.” The government imprisoned Hamdi for almost three years without charges, until he appealed his detention to the U.S. Supreme Court. On June 28, Justice Sandra Day O’Connor and seven of her colleagues roundly rejected the government’s argument that the United States could indefinitely detain American citizens by labeling them enemy combatants. O’Connor famously declared that a “state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” She held that Hamdi was entitled to notice of the reasons he was designated an enemy combatant and a fair opportunity to rebut the facts before a neutral decision-maker. Therefore, the justices vacated and remanded Hamdi’s case to the lower federal courts for a determination of whether he actually was an enemy combatant. Ever since the high court issued its landmark decision, which in effect required the government to prove that Hamdi was an enemy combatant, the United States has quietly and secretly negotiated Hamdi’s release. In late September, the U.S. Department of Justice (DOJ) and Frank Dunham, the federal public defender for the Eastern District of Virginia and Hamdi’s counsel, announced that they had reached an agreement on Hamdi’s release. The terms mandate that Hamdi forfeit his United States citizenship and return to Saudi Arabia where he has lived most of his life, although Hamdi was born in Louisiana to Saudi parents. However, logistical problems and certain requirements that the agreement purportedly imposed on Saudi Arabia, such as obligating the country to monitor Hamdi’s behavior, had delayed his final departure. This agreement’s consummation, thus, abruptly concluded a protracted, tortured saga. The U.S. government alleges that the U.S.-backed Northern Alliance seized Hamdi carrying an AK-47 on a battlefield in Afghanistan. After Hamdi’s purported capture in late 2001, he was incarcerated at Guantanamo Bay. When the United States learned that Hamdi was an American citizen, it transferred him to naval brigs in the United States. Since his capture, the government had imprisoned him without charges by labeling Hamdi an enemy combatant. The government denied Hamdi any access to counsel until February 2004. In 2002, the federal public defender filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of Virginia. District Judge Robert Doumar rigorously questioned the government’s reasons for detaining Hamdi, while the United States pursued three appeals of the trial court’s determinations to the 4th U.S. Circuit Court of Appeals, which essentially rejected the habeas petition. Hamdi appealed the 4th Circuit rulings to the Supreme Court, which delivered the Bush administration a clear defeat in late June (reversing and remanding with guidance for affording the process which Hamdi was due). Hamdi’s case had been scheduled to resume before Doumar in Norfolk, Va., on Sept. 27. Thus, the agreement rendered the case moot-the government never had to prove the alleged basis for Hamdi’s detention. Only public officials in the Bush administration and the DOJ know exactly why they detained Hamdi for such a long period on the theory that he was a profound threat to national security, forced Hamdi to litigate four appeals and then peremptorily released him after the Supreme Court ruled that Hamdi was entitled to due process, vacated his case and remanded it to the lower federal courts to ascertain whether he was an enemy combatant. Why release him? However, it is possible to speculate about the reasons for these actions. One of the most plausible explanations is the government’s concern that, having provoked an adverse opinion on due process, additional litigation might exacerbate the situation. For example, while the justices held that Hamdi must receive due process, they were somewhat vague about the specifics, leaving open the possibility that the lower federal courts might elaborate due process in a manner that the government would find unfavorable or insufficiently protective of national security and, thus, compound the government’s Supreme Court defeat. The speed and secrecy of the Hamdi deal also suggest that the Bush administration and the DOJ wish to divert public attention from the questionable treatment that they have accorded a citizen. The chilling message in Hamdi’s release must not be lost: No citizen is safe when the government can hold one of them-who at most seemed a bit player in Afghanistan-incommunicado for nearly three years without charges. It remains haunting, even un-American, that the government could lock up a citizen and throw away the key without ever having to show that the individual was an enemy combatant. Carl W. Tobias is the Williams Professor of Law at the University of Richmond School of Law.

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