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American held as combatant might go free

In custody 3 years after Afghan arrest

WASHINGTON -- The Bush administration yesterday took the first step toward release of the American-born ''enemy combatant" whose case resulted in a landmark Supreme Court defeat for the White House six weeks ago.

Four months after telling the justices in oral arguments that holding Yaser Esam Hamdi in military confinement was crucial to national security and the war on terrorism, administration lawyers told a judge yesterday that they were negotiating arrangements for sending him back to his family in Saudi Arabia.

In a joint motion filed in Norfolk, Va., lawyers for Hamdi and the Bush administration said they hoped ''to resolve this matter under terms and conditions . . . that would allow Mr. Hamdi to be released." They asked the judge for 21 days to work out the details.

The swift turnaround by the government took even some civil liberties advocates by surprise.

''If all goes well, this is a huge victory for the rule of law," said Deborah Pearlstein, a lawyer for Human Rights First. ''The reality is that the Supreme Court handed the administration a huge defeat, and releasing Hamdi is one way of complying with that ruling."

A government official who asked not to be identified gave a different explanation for Hamdi's release. Hamdi has been thoroughly questioned for more than two years and had no further ''intelligence value," the official said.

''This is really about the passage of time. He is no longer a threat to the United States," the official said in explaining the changed course.

Hamdi, whose parents are Saudi, was born in Louisiana, where his father worked in the oil industry. He is a US citizen.

Raised in Saudi Arabia, he was captured on a battlefield in Afghanistan carrying an AK-47 late in 2001. Since then, he has been held in US military custody, first at Guantanamo Bay, Cuba, and later at military jails in Norfolk and Charleston, S.C. He remains in the Navy brig in Charleston.

During Hamdi's confinement, the government insisted that he could not speak to his family or to a lawyer, and it refused him a chance to plead his innocence.

US officials did not say Hamdi was a terrorist. Instead, they said that because he had fought for the enemy, he could be held indefinitely at the president's command.

Hamdi's father, Esam, intervened to seek his son's release. He said his son had gone to Afghanistan early in 2001 to do relief work and found himself pressed into military service by the Taliban regime.

Two years ago, the father filed a writ of habeas corpus on his son's behalf, seeking a hearing.

That case became a crucial test in the Supreme Court of the president's power in the war on terrorism.

''The president's war powers include the authority to capture and detain enemy combatants at least for the duration of the conflict" even if they are American citizens, the Bush administration told the high court.

''No further factual inquiry is necessary or proper" in such cases, the administration added.

But the Supreme Court, in an 8-to-1 ruling, rejected that view and said that citizens have the right to challenge ''the factual basis" for holding them.

The Constitution gives all citizens a right to due process of law, and ''Hamdi has received no process," Justice Sandra Day O'Connor said. At minimum, that means he has a right to a lawyer and ''a fair opportunity to rebut" the government's case ''before a neutral decisionmaker."

The case of Hamdi v. Rumsfeld was sent back to US District Judge Robert G. Doumar in Norfolk, where Hamdi's father filed the original writ.

Rather than prepare for a trial, the lawyers on both sides have talked quietly about ending the case.

Their joint motion yesterday asked the judge to put matters on hold while the parties ''attempt to complete efforts to reach a mutually acceptable resolution of this case."

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