Hamdi v. Rumsfeld is another legal footprint of the war against terrorism.
(Since Hamdi) was captured abroad in a zone of combat. it was irrelevant what (he) had been doing (there), whether he was a lawful or unlawful combatant, whether he was an American citizen, and where he was being detained.
The Federalist Society (http://www.fed-soc.org/Publications/Terrorism/hamdidec.htm)
Since I do not speak Libertarian, I can only speculate whether this purported appreciation of the impact of 4th Circuit's opinion of January 2003 is an extrapolation, a mistake, deliberate overstatement for effect, an attempt at humor (cf. Doonsebury) or none of the preceding.
The following remarks may be no more accurate, comprehensive nor objective. They simply do not come from the same point of view.
Date of Discovery of Hamdi's US Citizenship
In the exposition of the facts of the cases, the court casually states:
Hamdi was transferred to the Norfolk Naval Station Brig (from Guantanamo Bay) after it was discovered that he may not have renounced his American citizenship.
This is the language of an embarrassed advocate (or a Department of Defense Employee). Either way, there is a strong odor of snafu: If the fact of Hamdi's citizenship had been determined in Afghanistan his transfer to Guantanamo would have been contrary to policy (to say nothing of the other issues that arise, see comments re John Walker Lindh, below); or failure to ask the simple question, "Where were you born?" suggests sloppy interrogation.
Of course, being the military in a combat zone means you never have to say you fouled up. A dangling thread, of course, but if taken in conjunction with the Lindh omission....
Omission of the John Walker Lindh (JWL) Case
Chronologically, physically and factually, the Hamdi and JWL cases have much in common. Both men were probably at the same detention facility in Afghanistan at the same time Although the Court mentioned Padilla, if only to remark that it was beyond the scope of Hamdi, It said not a word about JWL.
Beneath the scruffy beard, JWL was clearly an American; he became an instant media star. Hamdi was probably indistinguishable from thousands of Arabs.
It would not have been thinkable for the government to invoke these legally irrelevant distinctions to explain why Hamdi didn't receive the same treatment.
Apparently its tactic was to ignore the problem and hope that it would go away.
Was Hamdi's counsel silent for fear that Hamdi could somehow be charged as JWL had been?
I find it difficult to believe that the Court was unaware of the Lindh precedent.
Even if none of the briefs mentioned the JWL case, it would have been simple enough to introduce the subject at oral argument with an innocent question, such as "Were any other US citizens taken into custody in Afghanistan." One is sorely tempted to speculate that if the JWL case had been discussed, the Court would have been deprived of the argument to the effect that the military could not spare personnel from combat functions; reference to the JWL file reveals that not only the CIA agent who died in the uprising but also an FBI agent interrogated him in Afghanistan.
If the government were unable to establish legally relevant distinctions, would it have attempted to argue that the fact that it followed a procedure in one case did not create an obligation to follow the Same procedure in a similar case. One can hear counsel for the Defense Department:
If it please the court. Since a proper investigation was conducted in Afghanistan, It was determined that we could not meet the burden of proof to convict Mr. Hamdi Of violation of the US Code so we decided to hold him in indefinite detention and refuse access of counsel.