In a brief statement, Defense Department officials said Hamdi would be allowed to see a lawyer “as a matter of discretion and military policy.” But the statement emphasized that the government did not feel obligated to make a lawyer available and that the decision “should not be treated as a precedent.”
While it is rare for the administration to reverse itself on a major component of the anti-terror crackdown begun after the Sept. 11, 2001, attacks, the decision likely will improve the government’s position before the Supreme Court.
Hamdi’s case has come to symbolize the conflicting arguments in the ongoing anti-terror efforts. The government convinced a federal appeals court in Richmond that the military — and not the courts — had the sole authority to wage war and that courts should defer to battlefield judgments. More than 100 law professors and other legal experts argued that no U.S. citizen could be held without a lawyer.
The public defender seeking to represent Hamdi, Frank W. Dunham Jr., said he intends to press forward with his Supreme Court petition because it also calls for Hamdi to be allowed to contest his combatant designation in a civil or military court.
“I think this takes some of the sizzle out of our petition, but it doesn’t moot it,” Dunham said last night. He was told late yesterday that he would be allowed for the first time to see Hamdi in the next several days. Hamdi is being held at the Charleston Consolidated Naval Brig in Charleston, S.C., after a transfer from the brig in Norfolk.
Erwin Chemerinsky, one of the law professors who had joined Dunham in arguing Hamdi’s case before the courts, praised the government’s decision but said Hamdi’s effort to challenge his detention packs more legal significance.
“If the government wins and can hold Hamdi without any due process, then having a lawyer doesn’t mean very much,” he said.
The move does not affect the cases of the two other men still known to be held as so-called enemy combatants: Jose Padilla, who allegedly plotted to detonate a dirty bomb, and Bradley University graduate Ali Saleh Kahlah al-Marri, who was placed under military control in June after President Bush said he was an al Qaeda sleeper agent.
One administration official said the Pentagon’s reversal came after months of pressure from Justice Department lawyers, who felt that Hamdi or any other U.S. citizen detained as an enemy combatant should be provided a lawyer after national security concerns have waned. “There’s a general understanding that this is the correct policy for U.S. citizens,” the official said. “It’s the right thing to do.”