Thursday, September 23, 2004


this article is just another demonstration that the bush administration's "war against terror" is an utter sham.
Yaser E. Hamdi, an American citizen captured in Afghanistan and once deemed so dangerous that the American military held him incommunicado for more than two years as an enemy combatant, will be freed and allowed to return to Saudi Arabia in the next few days, officials said Wednesday.
the administration has insisted for years that hamdi was so dangerous he could not even be trusted to speak to a lawyer. but now, after being told by the supreme court that the government must present at least some evidence for holding him, the bush administration would rather have him set free. as the article notes:
"It's quite something for the government to declare this person one of the worst of the worst, hold him for almost three years and then, when they're told by the Supreme Court to give him a fair hearing, turn around and give up,'' said David Cole, a law professor at Georgetown University who has been critical of the administration.
hamdi's release suggests that either hamdi was never enough of a threat to justify his three year detention, or that he really is dangerous but the bush administration does not want to present the evidence that he is. if the former is true, the hamdi case is a stain on our country, undermining everything we are supposed to stand for. if the latter is true, the bush administration is actively endangering us by setting hamdi free. as the times article notes, the conditions imposed on hamdi's release "would be difficult for the United States to enforce."

either way, whether hamdi is dangerous or is not, this case demonstrates just how badly the bush administration is at prosecuting terrorists. indeed, as professor cole has pointed out, john ashcroft's justice department has not scored a single jury conviction against any terrorist suspect despite the fact that they have rounded up over 5000 people on suspicion of terrorism-related charges.
On Sept. 2 a federal judge in Detroit threw out the only jury conviction the Justice Department has obtained on a terrorism charge since 9/11. In October 2001, shortly after the men were initially arrested, Attorney General John Ashcroft heralded the case in a national press conference as evidence of the success of his anti-terror campaign. The indictment alleged that the defendants were associated with al Qaeda and planning terrorist attacks. But Ashcroft held no news conference in September when the case was dismissed, nor did he offer any apologies to the defendants who had spent nearly three years in jail.


Until that reversal, the Detroit case had marked the only terrorist conviction obtained from the Justice Department's detention of more than 5,000 foreign nationals in anti-terrorism sweeps since 9/11. So Ashcroft's record is 0 for 5,000. When the attorney general was locking these men up in the immediate wake of the attacks, he held almost daily press conferences to announce how many "suspected terrorists" had been detained. No press conference has been forthcoming to announce that exactly none of them have turned out to be actual terrorists.
both the hamdi case and the cole article demonstrate the ineffectiveness of the bush administration's approach to its prosecution of suspected terrorists. after 9-11 the bush administration proclaimed the old rules were obsolete, crusty old rules like basic due process, access to a lawyer, etc. so they assumed those basic protections away and started acting as if those things no longer applied. when the cases reached the judiciary, however, they were surprised to find that the judicial branch (even the current judiciary which is dominated by conservative appointees) was not willing to tolerate such a stark divergence from clear precedent and, in some cases, the plain language of the constitution. judges, unlike politicians, are required to follow precedents. perhaps someone in the administration should have though of that before they started changing the rules.

bush's tough talk about how the old rules no longer apply is not a sign of real toughness. it's a sign of weakness. if they really had the goods on hamdi, they would have no problem giving him a hearing (in the hamdi supreme court decision, the court allowed the government plenty of leeway in keeping evidence out of the public eye). if they really had the goods on anyone they arrested, there would have been no reason to overreach and insist to the court that, for example, zacarias moussaoui cannot introduce exculpatory evidence.

as pointed out by ebob in the comments here, ashcroft has gotten suspects to plead guilty to terrorism charges. however, at least some of those guilty pleas were were only extracted because the government threatened to reclassify the defendant's as "enemy combatants":
Why would six of their young men so readily agree to plead guilty to terror charges, accepting long prison terms far from home?


But defense attorneys say the answer is straightforward: The federal government implicitly threatened to toss the defendants into a secret military prison without trial, where they could languish indefinitely without access to courts or lawyers.

That prospect terrified the men. They accepted prison terms of 61/2 to 9 years.
in other words, we don't know if the people who have plead guilty were, in fact, guilty, or just intimidated into copping a plea. furthermore, with the courts questioning the legitimacy of the "unlawful combatant" status, it's not clear that this technique of extracting a guilty plea will even work anymore.

the bush administration's biggest pitch is that it is a steady hand in the prosecution of the war on terror. but on the judicial front, i can't imagine a less successful strategy