A U.S. citizen jailed since he was captured with Taliban soldiers in Afghanistan in 2001 met with his attorneys for the first time yesterday in a jailhouse session that marked a milestone in the government's war against terrorism.
Federal Public Defender Frank W. Dunham Jr. emerged from the one-hour meeting with Yaser Esam Hamdi, whom the government has declared an "enemy combatant," and said he was pleased to finally see the man whose case he has litigated — sight unseen — for more than two years.
"This was becoming a hypothetical case to us, and now were are reminded it's about a human being who happens to be a U.S. citizen," Dunham said. "Seeing the client in person, being able to put a human face on this case, had an effect on me that is not measurable."
Dunham and Assistant Federal Public Defender Geremy Kamens delivered legal papers and newspaper articles to Hamdi, who Dunham said seemed equally happy to see his attorneys. "I'm sure it made an impression on a client who has been looking down a lightless tunnel for 2 1/2 years, not knowing anyone is doing anything for him, and now he knows that he has a case in the U.S. Supreme Court."
But Dunham continued his criticism of the restrictions placed on the meeting at the Charleston Consolidated Naval Brig in South Carolina. Under guidelines drafted by Pentagon lawyers, military observers attended and recorded the meeting, and Dunham was not allowed to question Hamdi about the conditions of his confinement. "We were not able to talk about anything substantive," Dunham said.
Legal experts said the meeting was significant amid a debate over the Bush administration's handling of the war on terrorism and with the U.S. Supreme Court scheduled to take up Hamdi's case in April. Hamdi is the first of the three people known to have been designated enemy combatants by the military to meet with an attorney.
In addition to the three, two other men captured since the Sept. 11, 2001, attacks and being held at Guantanamo Bay, Cuba, have met with counsel. But they were not given the enemy combatant designation, nor were they U.S. citizens.
"This is a significant breakthrough," said Kim Lane Scheppele, a law professor at the University of Pennsylvania who is teaching a course on terrorism and the law. "It matters that this guy knows he has a case and knows he has legal representation. Even if it was in front of an audience of 10,000 people, it's an improvement over solitary confinement."
But she said it was unclear whether the meeting, and other recent steps the Bush administration has taken, such as releasing three teenage detainees from Guantanamo, would affect the Supreme Court justices as they consider Hamdi's case and the case of the other Guantanamo detainees.
Air Force Maj. Michael Shavers, a Pentagon spokesman, declined to comment on the details of the meeting. "We are leaving it up to Mr. Dunham to express specifics," Shavers said. "We kind of set the table and invited Mr. Dunham to sit down whenever he was ready."
Hamdi, who was born in Louisiana to Saudi parents, was jailed after Northern Alliance forces caught him in Afghanistan while he was fighting with the Taliban in 2001. He was brought to the Norfolk brig when it was learned that he had been born in Baton Rouge and was held incommunicado after the military designated him an enemy combatant. His case entered the legal system after Dunham read about his confinement in news accounts.
After a series of lower-court rulings, the government convinced a federal appeals court in Richmond that the military — and not the courts — had the sole authority to wage war and that courts should defer to battlefield judgments. More than 100 law professors and other legal experts weighed in on Hamdi's side, arguing that no U.S. citizen can be held without a lawyer.
Armed with the court ruling, the Bush administration refused to allow Hamdi a lawyer. It reversed itself in December when the Pentagon announced that Hamdi would be allowed access to counsel because his intelligence value had been exhausted and that giving him a lawyer would not harm national security.
The announcement said the decision "should not be treated as a precedent" for other cases in which the government had determined that someone is an enemy combatant.
Dunham said he expects to meet with Hamdi again after he files his next brief to the Supreme Court, which is due Feb. 23. He said he is hoping that the military will relax the restrictions it imposed yesterday for future meetings.
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