LCHR Welcomes Pentagon Announcement Allowing Yaser Hamdi Access to Counsel

The Defense Department said on Tuesday that Yaser Hamdi, an American citizen who has been held in incommunicado military confinement for nearly two years, will be allowed access to a lawyer.

In announcing that it would be making arrangements for Mr. Hamdi to have access to a lawyer “over the next few days,” the Pentagon insisted that such access was only being granted “as a matter of discretion and military policy,” not to comply with any requirement of domestic or international law. Indeed, the Pentagon maintains that its decision for Mr. Hamdi should not in any way “be treated as a precedent” to be used in any other “enemy combatant” case.

“We welcome the Pentagon’s decision to allow Yaser Hamdi to talk to a lawyer. But we take exception to the idea that the Administration is providing access to counsel merely as a matter of discretion,” said Deborah Pearlstein, who directs the U.S. Law and Security Program at the Lawyers Committee for Human Rights. “Some process for evaluating the legality of Mr. Hamdi’s detention -- beginning with access to counsel -- is a basic constitutional right for U.S. citizens, not a matter of special privilege.”

The decision to allow Mr. Hamdi access to a lawyer was announced the day before final briefs in Mr. Hamdi’s case were due to the Supreme Court, now deciding whether to take the case.

“It is difficult to see the timing as coincidental,” Pearlstein said. “For the past two years, this Administration - far more than previous ‘wartime’ executives - has been strikingly effective at keeping the courts out of the business of checking executive power. The Pentagon’s insistence that access to counsel is not required by law, and is available only at the government’s discretion, misses the critical point. The point is that the rule of law is a matter of right, not a matter of grace.”