EVER SINCE the military brought Yaser Esam Hamdi to American shores 21/2 years ago, the government has argued that compelling national security interests required his detention without any semblance of normal legal protections. Mr. Hamdi was not charged with a crime, was not given an opportunity to challenge the government's claims against him and for most of his detention was denied access to his lawyer. Then, in June, the Supreme Court rightly declared this state of affairs unacceptable: Mr. Hamdi, an American citizen born in the United States to Saudi parents, cannot be held indefinitely with no meaningful chance to contest his designation as an "enemy combatant," the justices ruled. And since then the administration has done an adroit back flip. In a joint court filing with Mr. Hamdi's attorney, the government revealed yesterday that it was negotiating Mr. Hamdi's release and asked a federal judge in Virginia to freeze all proceedings in the case for 21 days so that these negotiations can continue.
Far be it from us to second-guess the government when it works diligently to make reasonable arrangements for detainees. We have argued, to the contrary, that the government needs to do far more of this sort of work with respect to inmates at Guantanamo Bay, Cuba. And Mr. Hamdi has always seemed -- at least from the outside -- like a prime candidate for a relatively swift disposition. Unlike the other U.S. citizen held as an enemy combatant -- Jose Padilla -- he has never been alleged to have been a particularly dangerous character. Even the military has claimed no more than that he was a Taliban foot soldier. And his intelligence value -- if he ever had any -- was exhausted months ago. The instinct to explore seriously whether the case can be resolved, as the joint motion puts it, "under terms and conditions acceptable to both parties that would allow Mr. Hamdi to be released from . . . custody" is certainly a laudable one.
That said, its dissonance with the military's prior position leaves the government with some explaining to do. If such an arrangement is now possible, why was it a matter of such grave national security concern to keep Mr. Hamdi from meeting with his lawyer for so long in the first place? Why did the government litigate this case all the way to the Supreme Court -- inviting and receiving a major judicial rebuke in the process -- if its security concerns could be satisfied by arrangements less drastic than incommunicado detention? The government's current willingness to contemplate ending Mr. Hamdi's detention altogether necessarily raises the question of why it has fiercely resisted accommodations of much lesser drama for so long.