For Now, Hamdi Lingers in Limbo Land

W A S H I N G T O N, Aug. 16, 2002 -- At this writing we still have not heard from District Court Judge Robert Doumar in Norfolk, Va., following a remarkable hearing Tuesday morning on whether the government has provided sufficient reason to hold Yaser Esam Hamdi, a putative U.S. citizen, indefinitely and without access to legal counsel — on the grounds that the U.S. military has declared him to be an "enemy combatant."

But one would not be overly foolhardy to predict that Judge Doumar will once again rule against the government and order that Hamdi must have access to a lawyer; and, further, that the 4th Circuit Court of Appeals will again slap down Judge Doumar and find for the government.

In short, this case is inevitably heading for the Supreme Court, and there are some lawyers who are holding their breath.

But part of what makes this clash so remarkable is that Judge Doumar, at least superficially, seems to represent the very opposite of the bleeding-heart civil libertarian.

He is a President Ronald Reagan appointee who served two years in the U.S. Army; a white male Virginian; born, bred and schooled in the Old Dominion. And yet Doumar was visibly unhappy, frustrated, even squirming on the bench in his discomfort with what he was required to do.

For the 4th Circuit had ordered him, in reconsidering the Hamdi detention, to look at nothing beyond the now-infamous "Mobbs Declaration," a two-page affidavit filed by the Defense Department on behalf of one Michael H. Mobbs, identified as a special adviser to the under secretary of defense for policy. And for Doumar it was clear that the Mobbs Declaration was a masterpiece of evasion and omission.

For more than two hours he pounded away at the government's case, often sarcastic, at times unfair, in his castigating of the Justice lawyer, Gregory Garre, an assistant to the solicitor general, whose office has taken an unusually close interest in all Sept. 11-related legal proceedings.

But as one observer noted, Garre clearly had his marching orders not to give anything away, and so he contributed to Doumar's frustration by conspicuously refusing to respond to many of his queries.

The hearing began with Doumar piously declaring he would absolutely abide by the strict orders of the 4th Circuit; "this Court recognizes that the 4th Circuit has made clear that the government is entitled to considerable deference ..." But he pointedly added that the 4th Circuit had also stated its refusal summarily to embrace a sweeping assertion that any citizen could be detained indefinitely merely "on the government's say-so."

But Garre had barely begun his argument before the judge pounced. "Has the writ of habeas corpus been vacated? Can the president do anything to eradicate habeas corpus? ... If the writ wasn't suspended, then why would just the decision of the executive be sufficient?"

Garre attempted to respond but the judge quickly interrupted: "So the Constitution does not apply to Mr. Hamdi?"

It did not get better for Garre when the Judge began going through the Mobbs Declaration in detail. First he wanted to know just who is this Mobbs fellow, and he was not assuaged by any of Garre's replies. Is Mr. Mobbs an employee of the United States, he demanded, or just a special adviser hired to make a statement? When Garre tried to say the Declaration defined Mobbs as a government employee, the judge leapt: no it doesn't! It says he's a special adviser! "It doesn't say he's a GS-anything!"

But despite his occasionally bullying tone, the judge was not merely being picky. He pointed out what he considered to be serious deficiencies in the Declaration as he took Garre through it, paragraph-by-paragraph. Mobbs himself had never talked to Hamdi but rather reviewed documents reflecting his interrogation by others. It cannot be over-emphasized: no one in this case has had any direct contact with Hamdi.

Paragraph 3 says Hamdi "affiliated with a Taliban military unit and received weapons training." But, said the judge, nowhere does it indicate that he fought anyone or shot at anyone. "Is there anything in the Mobbs Declaration that indicates Hamdi ever fired a weapon?" And what is "affiliation"? He didn't say Hamdi was a member of the Taliban.

Garre repeated like a mantra that Hamdi had been "affiliated" with a Taliban unit that had surrendered to the Northern Alliance. But when Garre tried to explain the government's position by citing determinations made by the president, Doumar was having none of it: "It does not appear the president has determined anything: Mobbs did it!"

Garre argued that Hamdi was being detained as an enemy combatant in connection with current hostilities for two reasons: to prevent his giving aid to the enemy and to gather intelligence from him about the enemy.

And he pointedly cited the 4th Circuit's chief judge's statement that intelligence-gathering is like building a puzzle, and you don't always know contemporaneously the value of each individual piece.

But the Declaration does not even mention intelligence-gathering. And it refers vaguely to "military forces" without, the Judge felt, being clear when it means U.S. forces as opposed to Northern Alliance. And isn't the Northern Alliance made up of ex-Taliban members? Aren't they all just warlords?

"You see, Mr. Garre," he summed up, "when you're deciding something on the basis of a Declaration, then the Declaration has to be very thorough!"

Frank Dunham, the federal public defender, had a much easier time of it with Judge Doumar, but he is in the peculiar position of trying to represent a client he's never met or spoken with, because the government won't allow it; and, further, while he's arguing habeas petitions on the client's behalf, the government has tried to get him tossed off the case.

Dunham had a couple of interesting points to raise, but part of his problem is that he fundamentally believes the Mobbs Declaration is insufficient to provide Hamdi with the "meaningful judicial review" to which the 4th Circuit has said he is entitled — and so he kept trying to stray into other arguments beyond the strict consideration of the Declaration ordered by the appeals court.

Dunham's basic argument is that Hamdi is being held as if he is an unlawful combatant; that he is being punished as if he's committed crimes.

The conundrum is this: if Hamdi is merely an enemy combatant, as the government has said, then he ought to be released because the hostilities in Afghanistan have ended. There is no suggestion that Hamdi is allied in any way with al Qaeda or involved in any terrorist activities. Military regulations, Dunham argues, require that Hamdi be treated like a prisoner of war. In the alternative, if the government believes he's an unlawful combatant, then he should be charged with a crime and afforded his rights.

The American Bar Association task force on treatment of enemy combatants last week was also deeply concerned about this point. In its report, the task force quoted the Supreme Court ruling in Ex parte Quirin, the case the government constantly cites as its authority in this matter, as making the same distinction:

"Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."

[The ABA report also pointed out that "Quirin does not stand for the proposition that detainees may be held incommunicado and denied access to counsel ... "]

In addition to Mobbs's failure to address the supposed goal of intelligence-gathering, Dunham argued, the "other dog that doesn't bark" is the Declaration's failure to address why Hamdi was moved from Guantanamo to Norfolk.

That's the detention being contested, Dunham maintained, not his capture in Afghanistan, or his detention in Sheberghan or Guantanamo — but the government refuses to explain what he's doing in that Navy brig.

Dunham's point, of course, is that the Pentagon freaked out when it discovered it had been holding a U.S. citizen (born in Louisiana albeit reared in Saudi Arabia) at Guantanamo Bay. They hustled him up to Virginia, figuring the U.S. attorney there would charge him with a crime, take him into custody, and most important, take this hot potato off their hands.

Unfortunately for the Department of Defense, Justice officials have made clear they know of no evidence of any violation of federal criminal law with which the guy could be charged. Thus he lingers in limbo land.

Watson Departs

Just when you thought there was nobody left to leave the FBI, there goes another old hand.

This time it's Executive Assistant Director Dale Watson, who's ending a 24-year career with the Bureau and joining Booz Allen Hamilton, where he'll be in charge of their homeland security project. This makes perfect sense, of course, since Watson has in essence been Mr. Counterterrorism (and Mr. Counterintelligence) for the Bureau for years.

As EAD he's overseen the two divisions, counterterrorism and counterintelligence, but there seems to be some thought that those divisions have such strong assistant directors in place now that perhaps they won't need an EAD to replace Watson.

Meanwhile, FBI Director Robert Mueller has rather surprisingly determined that, whoops, maybe he does need a deputy director after all, and so he has elevated the EAD for criminal investigations, Bruce Gebhardt, to the No. 2 slot. And he may not be replaced either, again leaving the assistant directors, for cyber-crime and criminal investigations, to manage their divisions without an EAD.

All of which means that since Mueller announced the four EAD's last December, three of them have turned over. Only Kathleen McChesney remains in place as EAD for law enforcement services, a vast domain comprising training, various criminal information databases like fingerprints and criminal records and DNA profiles, the lab, the operations center, and various other support services. The original EAD for Bush administration, Bob Chiaradio, has left for greener (more lucrative) pastures and been replaced by an outsider from IBM, Wilson Lowery.

Last December Mueller had explained that he didn't want a deputy; he felt that with the naming of the four EAD's he essentially would have four deputies.

But he strongly believed at that time that he needed to be "up on the day-to-day running of the bureau," that he himself had to have the hands-on experience to accomplish his mission.

However, he did acknowledge at the time that he'd been warned by many that he would eventually need a single deputy who could share some of that burden, and thus he had not eliminated the slot but just kept it empty.

When I nevertheless expressed surprise that he had changed his mind so soon, I was told by one senior official that one of the most important tasks Gebhardt will free up the director for his visiting the field offices. Mueller feels that's vital for him, since, after all, it's in the field that the real work of the Bureau is accomplished. Gebhardt is expected also to shoulder a lot of the heavy lifting on Capitol Hill, and let the assistant directors run their divisions instead of testifying.

"It's the director's theory," said the official, "that assistant directors should be fully engaged operationally with minimal outside distractions."

Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.