Enemy Combatant To Get Lawyer

The Department of Defense announced yesterday that enemy combatant, Yaser Esam Hamdi, will be allowed access to a lawyer. Hamdi, an enemy combatant, has been detained in the same facility with the alleged “dirty bomber,” Jose Padilla.

The Associated Press reports that Hamdi was captured in Afghanistan in November 2001. He was originally taken to the prison for terrorism suspects in Guantanamo Bay. Hamdi was transferred to the United States after it was determined that he had been born in Louisiana and therefore is a U.S. citizen.

In January a federal appeals court in Richmond, Va., ruled that Hamdi was not entitled to access to a lawyer or to challenge the basis of his continued detention.

This is an important change in the governments position concerning enemy combatants. As recently as November 17th, during a hearing in the Padilla case, the government claimed it could detain an enemy combatant as long as the conflict lasts. You can find my post about that hearing here.

As explained in this post, many are deeply troubled with the concept of holding a U.S. citizen indefinitely without even an opportunity to test the assertion that the enemy combatant designation is accurate. The importance of such an opportunity is more than adequately evidenced by what happened to Rchard Jewel, incorrectly accused by the FBI as the Atlanta Olympics bomber.
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The Defense Department’s press release was carefully drafted, attempting to avoid setting a precedent requiring all enemy combatants access to lawyers.

The Defense Department said it decided to allow Hamdi access to counsel because:

Hamdi is a U.S. citizen detained by DoD in the United States, because DoD has completed its intelligence collection with Hamdi, and because DoD has determined that the access will not compromise the national security of the United States.

Detention as an enemy combatant is not criminal in nature but is permitted under the law of war to prevent an enemy combatant from continuing to fight against the United States. Under the law of war, enemy combatants may be detained until the end of hostilities.

Having allowed Hamdi access to lawyers, the government will be hard pressed to prevent the other two enemy combatants who are U.S. citizens from having some access to lawyers.