A federal appeals court yesterday cleared the way for negotiations to continue over the release of Yaser Esam Hamdi, making it likely that the man captured in Afghanistan will not appear in an open federal courtroom before he is sent home to Saudi Arabia.
The U.S. Court of Appeals for the 4th Circuit ruled that a federal judge in Norfolk lacks jurisdiction for several more weeks to hear the case of Hamdi, who has been held in Navy brigs since he was captured in Afghanistan in 2001. The order led to the cancellation of a federal court hearing that the judge had scheduled for today.
The possibility of a court appearance by Hamdi has hung over the case since the Supreme Court ruled in June that as a citizen of the United States, he must have access to the U.S. legal system. It would have been a highly symbolic moment in the war on terrorism, because neither Hamdi nor a second U.S. citizen held as an enemy combatant -- Jose Padilla, who is accused of plotting to set off a radiological bomb in the United States -- has been seen publicly since being detained.
Negotiations over Hamdi's release are continuing, and the two sides have until Sept. 27, the date that U.S. District Judge Robert G. Doumar in Norfolk will take over the case. But Hamdi's release is likely to come sooner, people familiar with the negotiations said yesterday.
Hamdi was captured with pro-Taliban forces on the battlefield in northern Afghanistan in November 2001. He was brought to the Navy brig in Norfolk and then the Navy jail at Charleston, S.C., after it was learned that he was born in Baton Rouge, La. Hamdi has spent most of his life in Saudi Arabia and his family lives there.
The military designated Hamdi an enemy combatant and held him incommunicado, but his case entered the legal system after federal public defender Frank W. Dunham Jr. read about his confinement in news accounts.
Prosecutors and Hamdi's attorneys revealed this month that they were nearing a deal and that Hamdi's release was "imminent." The government said in court papers filed with the 4th Circuit on Friday that the "outlines of an agreement . . . are in place with only the details remaining for final resolution." The papers said the agreement calls for Hamdi to be released and transported to Saudi Arabia; for him to renounce any claim to U.S. citizenship; and for him to agree to some travel restrictions, including a ban on travel to the United States.
In the papers, the government was seeking to overturn a series of orders by Doumar in which the judge set the court hearing. He also ordered prosecutors to provide documents justifying Hamdi's detention and instructed the head of the South Carolina naval brig where Hamdi is being held to explain why he still is in solitary confinement.
The judge's actions "improperly infringe upon Executive Branch functions" and would lead to an open court hearing for someone designated an enemy combatant during wartime for the first time "perhaps in our nation's history,'' the papers said.
Doumar, in an order issued earlier Friday, had said that the government was violating Hamdi's constitutional rights by holding him in solitary confinement without an adequate explanation.
But in its order yesterday, the 4th Circuit accepted the argument of prosecutors that Doumar would not have jurisdiction to hear the case until Sept. 27.
Hamdi's case evolved into a major test in the war on terrorism, with the Bush administration refusing to allow Hamdi to challenge his detention and holding him for much of the past two years without access to a lawyer.
A series of lower court decisions led to the Supreme Court ruling, in which all the justices except Clarence Thomas rejected the Bush administration's contention that the federal courts could exercise no supervision over such a case.