to the authority of the U.S. Supreme Court, the Pentagon and the
Justice Department decided to release “unlawful combatant” and accused
“terrorist” Yaser Esam Hamdi from the bowels of the Pentagon’s military
brig in South Carolina. A few days ago, a U.S. military plane flew
Hamdi to Saudi Arabia, where he was released from custody. In return,
Hamdi agreed to give up his U.S. citizenship and promised not to
engage in terrorism against the United States.
In July, I wrote an article entitled “Padilla, Hamdi, and Rasul: Charge Them or Release Them,”
in which I argued that in the wake of the Supreme Court’s decision
in Hamdi, the government should either charge Hamdi
and other accused terrorists with a crime or release them.
The question is: Why did the government choose to release Hamdi
instead of charging him with a crime, such as terrorism or treason?
Keep in mind that in its ruling, the Supreme Court did not order
the government to release Hamdi. Instead, it ordered that the government
simply had to provide Hamdi, who was claiming to be innocent, with
a hearing so that the courts could determine how then to proceed.
A criminal indictment of Hamdi would obviously have run counter
to the Pentagon’s claim of omnipotent power to label and punish
“enemy combatants” and “terrorists” without
judicial interference. After all, by its very nature an indictment
places jurisdiction over an accused in the hands of the U.S. federal
Also, consider first how weak a charge of terrorism would have been
against Hamdi. According to U.S. officials, Hamdi surrendered to
the Northern Alliance while fighting in behalf of the Afghan government
(the Taliban) during the U.S. invasion of Afghanistan. The Northern
Alliance, you will recall, was a gang of murderers
and rapists that had been rebelling against the Taliban government
long before the 9/11 attacks. When the U.S. government invaded Afghanistan,
it aligned itself with the Northern Alliance, claiming that the
Taliban government had knowingly harbored Osama bin Laden and members
of al-Qaeda, thereby supposedly conspiring to commit the 9/11 attacks.
Under the Geneva Convention, the U.S. government was required to
release its prisoners of war upon the defeat of the Afghan government.
Instead, what it did was announce that all Afghan soldiers, by virtue
of having fought for a government that had effectively conspired
to commit a terrorist act (i.e., knowingly harboring the perpetrators
of 9/11), were “enemy combatants” and “terrorists”
in the U.S. government’s ongoing “war on terrorism.”
Such a designation, U.S. officials claimed, entitled them to combine
Taliban soldiers with captured members of al-Qaeda and treat them
all the same – as “terrorists” or “enemy combatants”
in the “war on terror” who could be punished by the military
without due process of law, right to counsel, habeas corpus, and
the other guarantees enumerated in the Constitution and Bill of
How would Hamdi have defended himself in such a prosecution, even
assuming he was part of the Taliban army?
First, assuming that Hadmi was a Taliban soldier, he would have
contended that as a foot soldier in war, under the terms of the
Geneva Convention U.S. officials were required to release him on
the cessation of hostilities against the Afghan government.
The government would have repeated the claim it made to the Supreme
Court – the Taliban government had conspired with al-Qaeda
to commit acts of terrorism, thereby converting foot soldiers in
the Taliban government into “enemy combatants” or “terrorists”
in the “war on terror.”
Hamdi, on the other hand, would undoubtedly have put U.S. officials
in the uncomfortable position of having to disclose the evidence,
if any, that showed a conspiracy between the Taliban and al-Qaeda
to commit the 9/11 attacks, evidence that just might not exist.
Don’t forget that in the buildup to the war, U.S. officials
repeatedly promised to release their evidence that the Taliban government
was involved in the 9/11 attacks but unfortunately their promise
was never fulfilled.
U.S. officials might also have argued that they were justified in
invading Afghanistan because the Taliban was refusing to turn bin
Laden over to the United States. That argument, however, would have
been problematic given that there was no extradition treaty between
Afghanistan and the United States. Keep in mind that in a similar
case involving an accused terrorist who has lived in Great Britain
for many years, U.S. officials are unlikely to accuse the British
government of having knowingly harbored a terrorist if British courts
refuse to extradite the accused to the United States.
What about treason? Why didn’t U.S. officials charge Hamdi
with treason, as they did with John Walker Lindh, the “American
Taliban”? After all, both Hamdi and Lindh were American citizens
and both of them were presumably captured on the battlefield.
U.S. officials knew that Hamdi would vigorously meet the charge
by arguing that he never took up arms against the United States
but instead was simply continuing to help the Afghan government
to suppress a rebellion by a gang of murderers and rapists known
as the Northern Alliance. Moreover, given that the Congress never
declared war on Afghanistan, as required by the Constitution, Hamdi
might well have argued that he couldn’t be convicted of treason
for resisting government conduct that was unlawful under the supreme
law of the United States.
The last thing that the president and Pentagon ever thought would
happen was that the judicial branch of government would interfere
in any way with U.S. military actions away from American shores.
That’s in fact why the Pentagon set its prisoner gulag in
Cuba and other countries rather than here in the United States.
That was also why U.S. military officials sent Hamdi to their base
at Guantanamo Bay before they discovered he was an American citizen.
Prosecuting Hamdi would have enabled the federal judiciary to directly
rule that the invasion of Afghanistan was unlawful under the supreme
law of the land (the Constitution) and would have also enabled the
federal courts to discard the Pentagon’s newly claimed power
of labeling and punishing people as “enemy combatants”
and “terrorists” in the “war on terror” without
habeas corpus, jury trials, counsel, and other aspects of due process
of law. After all, don’t forget that the Pentagon is still exercising
that power in the Padilla,
Rasul (Guantanamo), and al-Marri cases and it is still claiming
that it can employ such power against everyone else, American and
Thus, while the Pentagon is now claiming that the true reason for
its release of Hamdi is that his value as a source of intelligence
had been exhausted, that claim is obviously nonsense. The real reason
for Hamdi’s release is that the Supreme Court put the quietus on
the Pentagon's plan to incarcerate Hamdi forever, denying him a
jury trial, habeas corpus, and other aspects of due process of law.
The Pentagon also knew that if it continued litigating against Hamdi,
an adverse judicial ruling would likely have put a final death knell
on the Pentagon’s hope of exercising such power against others,