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U.S. Allows Lawyer For Citizen Held as 'Enemy Combatant'

Reversal Comes on Eve of Court Filing

By Jerry Markon and Dan Eggen
Washington Post Staff Writers
Wednesday, December 3, 2003; Page A01

The Bush administration reversed course last night in one of the most closely watched cases in the war on terrorism, saying a U.S. citizen jailed after being captured with Taliban soldiers in Afghanistan would be allowed access to a lawyer.

Government officials had argued for more than a year that Yaser Esam Hamdi was not entitled to counsel after they had designated him an "enemy combatant." The change in policy came on the eve of a government filing due today at the U.S. Supreme Court, which had been asked by a federal public defender in Virginia to review Hamdi's detention.

Yaser Esam Hamdi was captured in Afghanistan. His case has been appealed to the Supreme Court.

_____From FindLaw_____
Hamdi's Cert. Petition (Hamdi v. Rumsfeld) (PDF)
4th Circuit Opinion

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."

The Defense Department had argued against such a policy, the official said, but apparently reversed course. Pentagon officials acknowledged in the statement that the department had "completed its intelligence collection with Hamdi" and had determined that giving him access to a lawyer would not harm national security.

Pentagon spokesman Bryan Whitman declined to comment on any aspect of the agency's deliberative process or whether Defense Secretary Donald H. Rumsfeld had signed off on it. He also declined to say whether the new policy was intended to head off the Supreme Court appeal.

A change in policy was first hinted at two weeks ago during a federal appeals court hearing in New York for Padilla.

Deputy Solicitor General Paul D. Clement, arguing for the government, suggested that Padilla might be granted access to a lawyer once his value as an intelligence source ended, although he said the decision should be up to the executive branch and not the courts.

While fighting with Taliban troops in Afghanistan, Hamdi was captured by Northern Alliance forces in November 2001. He was placed in the Navy brig in Norfolk when it was learned that he was born in Baton Rouge, La. His case entered the legal system after Dunham saw news reports about Hamdi's arrival in Virginia and tried to see him.

The government objected and justified Hamdi's detention with a Defense Department declaration that Hamdi had joined a Taliban military unit, received training, and acknowledged loyalty to the Taliban when captured.

A federal judge twice ordered the military to grant Dunham access to Hamdi, but a three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond ruled in January that the Constitution gives the executive branch the responsibility to wage war and that the courts must yield to the military. It was considered an important victory for the government in the war on terrorism.

By an 8 to 4 vote, the full slate of active 4th Circuit judges let the decision stand in July, which paved the way for the appeal to the Supreme Court.

Staff writer Vernon Loeb contributed to this report.

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