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December 4, 2003

NEWS ANALYSIS

Sudden Shift on Detainee

By NEIL A. LEWIS

WASHINGTON, Dec. 3 — When the Pentagon said this week that it would let an American being held as an enemy combatant meet a lawyer, which it had refused to do for months, it appeared on the surface to be a major concession to the critics of the policy of detaining terrorism suspects.

But it may be that the action was less of a substantive change than merely a calculated gesture to help the administration shield its policies from criticism and reversal by the courts. The American, Yaser Esam Hamdi, a Louisianan of Saudi descent captured in fighting in Afghanistan, is under indefinite detention in a Navy brig in Charleston, S.C.

Viet Dinh, a former assistant attorney general who had a major role in drafting antiterror policies, said in an interview on Wednesday that the decision to give Mr. Hamdi access to a lawyer was "a significant development in the case, one that moves the government to a more sustainable position before the court."

But Mr. Dinh, who has returned to his professorship at the Georgetown University Law School, also said the administration needed to provide some better form of due process "to make its case bulletproof."

The Pentagon made its statement about Mr. Hamdi's ability to confer with a lawyer a day before the Justice Department was obliged to file a brief with the Supreme Court asking it to uphold a ruling by an appeals court that President Bush was within his rights as a wartime president to detain Mr. Hamdi indefinitely without access to a lawyer.

The brief itself, however, does not retreat from the hard-line position the administration has taken all along, that the president has the authority to detain an American citizen indefinitely without consulting a lawyer.

The administration does not concede in the brief that it has any obligation to allow Mr. Hamdi to meet with his lawyer, Frank W. Dunham Jr., the federal public defender in Virginia, although a footnote in the brief does say the two will soon be able to meet.

The Pentagon explicitly said its decision was at its discretion and was taken only because intelligence officials had finished questioning Mr. Hamdi and no longer felt the need to keep him incommunicado.

"They are trying to change at least the perception of unfairness that existed and show that they are giving this U.S. citizen some kind of rights," Pamela S. Falk, a professor of international law at the City University of New York, said. "This is clearly an attempt to defuse some of the reasonable fear among the public that the government was seeking extraordinary new powers to detain citizens in the war against terrorism."

The president of the American Bar Association, Dennis W. Archer, said on Wednesday that although he was encouraged at the decision to let Mr. Hamdi see his lawyer, he was disappointed that the Pentagon said it was doing so only as a discretionary matter and not setting a precedent.

Nonetheless, the permission may help the government's case in the Supreme Court. The Supreme Court case involves not only the issue of whether an enemy combatant may consult with a lawyer, but also whether the combatant may be detained solely on the assertion of the president and the executive branch with no recourse to judicial review.

Professor Dinh has suggested since leaving the government that the process needs to be reviewed.

"Two years into the war against terror, along with the luxury of the relative safety that the administration has provided, has afforded an opportunity to have a conversation about a more systematic and sustainable set of procedures" for enemy combatants, he said.

Those comments underline the fact that allowing Mr. Hamdi to see his lawyer does not necessarily mean anything will come of it. The administration still contends in its brief that Mr. Hamdi is not entitled to challenge his detention nor his designation as an enemy combatant.

A second senior former official in the Justice Department, Judge Michael Chertoff, has also called for new methods of dealing with enemy combatants' rights of due process. Judge Chertoff, who was the assistant attorney general in charge of the criminal division, is on the United States Court of Appeals for the Third Circuit, in Philadelphia.

A senior administration official said on Wednesday that letting Mr. Hamdi see a lawyer did not represent a stark change, because the government has always contended that detainees needed to be kept in isolation only until their questioning had ended. The administration first hinted at that view publicly last month, when it argued before a federal appeals court in New York that Jose Padilla, another American held as an enemy combatant, might be permitted to see a lawyer when his questioning had ended.

The administration has argued that letting a detainee consult a lawyer before questioning is complete would render ineffective all efforts to obtain usable information. Not only might a lawyer advise a detainee not to cooperate, but the consultation, officials say, would also disturb the relationship between the detainee and the questioners.

In addition to the decision to let Mr. Hamdi consult his lawyer, the administration has made other seeming concessions to foreign allies as to the circumstances in which their citizens detained at Guantánamo Bay, Cuba, might be tried before military commissions. Last month, Australia said Washington had agreed to allow an Australian defense lawyer meet directly with and participate in the defense of David Hicks, 26, an Australian who joined the Taliban in 1999 and was captured with it. Mr. Hicks, who is at Guantánamo, who may soon face a tribunal.

Australia and Britain have been assured that their citizens will not face the death penalty from any tribunals. At the same time, the administration is negotiating with other governments on their citizens at Guantánamo. Defense Department officials have said they may soon modify some of the rules established for military tribunals to satisfy some foreign critics.

After reaching the accord with Australia, the first foreign government to declare that it was satisfied with the procedures for a military tribunal, the Pentagon said on Wednesday that it had assigned a military lawyer to represent Mr. Hicks, one of six detainees designated eligible for a tribunal.

Pentagon officials acknowledged last weekend that they might soon release many the 660 people detained at Guantánamo. The detention of people, most of whom were captured in Pakistan and Afghanistan at the end of the Afghan campaign, has been a major irritant in relations with foreign governments.


Copyright 2003 The New York Times Company