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Freeing Mr. Hamdi

Friday, September 24, 2004; Page A24

NEARLY THREE YEARS after his capture, the government has agreed to release Yaser Esam Hamdi, the American-born Saudi it has been holding as an "enemy combatant" at a naval brig in South Carolina. In and of itself, the deal is unobjectionable. Mr. Hamdi, even accepting the worst of the government's allegations against him, was nothing more than a Taliban foot soldier, neither a major national security threat nor a likely intelligence asset of ongoing consequence. The deal will allow Mr. Hamdi to return to Saudi Arabia, where he will renounce any claim to American citizenship and accept travel restrictions. His release is part of an important process of belatedly distinguishing detainees who may need to be held from those who can be repatriated.

What remains objectionable -- what looms as more objectionable than ever, now that the government has acknowledged Mr. Hamdi's unimportance -- is the unnecessary assault on civil liberties that the administration led in his case. For three years the administration insisted that Mr. Hamdi be held incommunicado and without any semblance of normal legal process or rights despite his citizenship. For most of his detention he was prevented from meeting with his lawyer. In 2002 the government contended in court that merely allowing him to meet with counsel "jeopardizes compelling national security interests" and would "interfere with if not irreparably harm the military's ongoing efforts to gather intelligence." Mr. Hamdi, it warned, might even "pass concealed messages through unwitting intermediaries."

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The government insisted that the courts authorize Mr. Hamdi's detention purely on the basis of a two-page affidavit from a mid-level Defense Department bureaucrat who claimed no personal knowledge of the case. An American citizen could be plucked out of all of the protections of the civilian justice system with no significant judicial review and no opportunity to rebut the facts behind the decision, the administration argued -- and it pushed this view all the way to the Supreme Court, where it received the rebuke it deserved.

The military's contentions would have been extreme even in the case of someone who truly represented a threat -- as, for example, the way the government describes Jose Padilla, the other U.S. citizen held as an enemy combatant. It is unpardonable to have staked out such ground over someone whom, it turns out, the government considers so unthreatening. Had the military allowed Mr. Hamdi to meet with his lawyer in a timely fashion and not acted so aggressively to prevent him from presenting his own account of his behavior, it might have had credibility to reserve the right to act otherwise in a truly exceptional situation. But its behavior toward Mr. Hamdi -- even assuming he is an enemy combatant, which he denies -- makes it difficult to give the benefit of the doubt to such claims of necessity.

Apocalyptic justifications for needlessly aggressive positions that have gross consequences for liberty cannot be wiped away with a blithe "never mind."

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