US: The American Bar Association says the US citizen has fewer rights than foreign detainees, reports Conor O'Clery North America Editor
Mr Yasser Esam Hamdi, a US citizen, has been confined to a windowless cell on a US prison ship for more than six months. He is forbidden contact with anyone except his jailers. He has not been charged or tried for any offence. Repeated requests by a lawyer to see him have been denied.
Yesterday the case of the 22-year-old marketing student came before a three panel judge of the US Court of Appeals, in what has become a test case for civil liberties in post-9/11 America.
There has been no instance in modern history where an American citizen has been interned without trial and without access to a lawyer, and a coalition of 18 civil liberties groups, 139 law professors and a task force of the American Bar Association is opposing Mr Hamdi's treatment as the improper use of executive power by the Bush administration.
Yasser Esam Hamdi was born in Baton Rouge, Louisiana, to a Saudi Arabian father who was working for Exxon, and raised in Saudi Arabia from the age of three. He went to Afghanistan in 2001 for religious training and relief work with the Taliban. He was a member of a Taliban unit that surrendered in Afghanistan in November. In February he was flown to the American prison camp at Guantanamo Bay, Cuba, and in April when his American citizenship was confirmed, he was transferred to the cell he now occupies on a naval station brig at Norfolk, Virginia.
The US Defence Department has argued that the US Patriot Act passed on September 18th 2001 authorises the President to use "all necessary and appropriate force" to protect the US against attacks. If the Appeals Court rules against the administration after hearing the arguments of both sides today, it is expected to appeal all the way up to the US Supreme Court.
At the hearing yesterday, which was an appeal by the government after the rejection of its case by a lower court judge, the US Defence Department argued that the detention of Mr Hamdi was lawful because he was captured on the battlefield and was therefore an "enemy combatant". A court ordered re-examination of the action of the US military on a battle-field would be "unprecedented and could hamper the nation's defence", according to US Attorney Paul McNulty and Paul Clement, deputy solicitor general, in papers filed with the court.
Federal public defender Mr Frank Dunham, who was assigned to defend Mr Hamdi, but has been prevented by the Pentagon from seeing or communicating with him, argued that the Defence Department has not produced sufficient reasons to detain him without charge or access to a lawyer.
The case goes to the heart of a fierce legal struggle between national security and civil liberties arising from the US administration's war against terrorism. If the judges at yesterday's hearing side with the Pentagon, said Mr Dunham, in his submisson to the appeals court, they would create "a vast power to imprison American citizens almost without review by the courts", and endanger Americans' "fundamental constitutional protections".
The American Bar Association task force said it was a paradox that Mr Hamdi - and another US citizen Jose Padilla, the so-called dirty bomber who is detained on a brig in South Carolina - had fewer rights and protections than foreign nationals such as French citizen Zacarias Mousaoui, the alleged 20th hijacker, who has been charged in court and has access to counsel.
"Any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or consul on the government's say-so," the ABA said, recalling that the US had to apologise to ethnic Japanese US citizens interned during the second World War for its "discriminatory policies".
The bar association, the largest lawyers' group in the US, has also condemned the government's secret detention of hundreds of immigrants since September 11th. The US Justice Department has appealed a recent court ruling ordering it to release the names of more than 1,100 people detained since the attacks on the US, arguing that this would put the nation at risk of additional terrorist attacks.
Mr Hamdi is one of the few prisoners to have been transferred out of the US naval base camp at Guantanamo Bay, where more than 600 suspected al-Qaeda and Taliban prisoners from 43 countries are being held. US officials announced yesterday that four detainees, three Afghanis and a Pakastani, were freed from Guantanamo Bay because they no longer pose a threat. At the same time a planeload of about 30 prisoners from an undisclosed location arrived at the naval base in Cuba, bringing the number of detainees there up to about 625.