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Context of 'August 13, 2002: Judge Hears Arguments over Documentation for Hamdi’s ‘Enemy Combatant’ Designation'

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The district court for the Eastern District of Virginia holds a hearing in the case of “enemy combatant” Yaser Hamdi and questions the government’s arguments for keeping Hamdi detained. Questions raised by the district judge are: “With whom is the war I should suggest that we’re fighting?” and “Will the war never be over as long as there is any member [or] any person who might feel that they want to attack the United States of America or the citizens of the United States of America?” The court orders the government to include answers to these and other questions in a response to Hamdi’s habeas petition by July 25 (see July 25, 2002). [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 1/8/2003 pdf file]

Entity Tags: Yaser Esam Hamdi

Timeline Tags: Torture of US Captives

The government files a response in the District Court for the Eastern District of Virginia to the petition for a writ of habeas corpus for “enemy combatant” Yaser Hamdi (see July 18, 2002) and motions for the petition to be dismissed. The response, a two-page declaration of facts written by Special Adviser to the Under Secretary of Defense for Policy Michael H. Mobbs and known as the “Mobbs Declaration,” asserts that because Hamdi was “affiliated” with the Taliban and was carrying a rifle at the time of his surrender, the US military has designated him as an “enemy combatant.” It does not say that Hamdi actually fought with the Taliban against US forces. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 1/8/2003 pdf file; Washington Post, 1/9/2003]

Entity Tags: Michael H. Mobbs, Yaser Esam Hamdi

Timeline Tags: Torture of US Captives

Judge Robert Doumar of the US District Court of Eastern Virginia orders the US government to provide the court with copies of all of “enemy combatant” Yaser Esam Hamdi’s statements, a list of all interrogators who have questioned him, and copies of any statements by members of the Northern Alliance that relate to Hamdi by August 6. A hearing will then be held on August 8. Access to the documents will be restricted to the court and will not be shared with Federal Public Defender Frank Dunham. [Order. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 7/31/2002 pdf file; Washington Post, 1/9/2003] The US government refuses to comply with the order. [Respondents memorandum in support of motion for relief of this court's production order of July 31, 2002. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/5/2002 pdf file; Washington Post, 1/9/2003]

Entity Tags: Yaser Esam Hamdi, Frank W. Dunham Jr., Robert G. Doumar

Timeline Tags: Torture of US Captives

Rebuffing Judge Robert G. Doumar’s July 31, 2002, ruling in the “enemy combatant” Yaser Esam Hamdi case (see July 31, 2002), the Fourth Circuit Court of Richmond orders the US District Court of Eastern Virginia to “consider the sufficiency of the Mobbs declaration as an independent matter before proceeding further.” [Order. Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/8/2002 pdf file; Washington Post, 1/9/2003]

Entity Tags: Yaser Esam Hamdi, Frank W. Dunham Jr., Robert G. Doumar

Timeline Tags: Torture of US Captives

Judge Robert Doumar of the US District Court in Norfolk, Virginia, which is handling the habeas petition for “enemy combatant” Yaser Esam Hamdi, holds a hearing in compliance with an order (see August 8, 2002) by the court of appeals to consider the government’s argument for treating Hamdi as an enemy combatant as outlined in the Mobbs declaration (see July 25, 2002). [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 pdf file; Washington Post, 1/9/2003]

Entity Tags: Robert G. Doumar, Yaser Esam Hamdi

Timeline Tags: Torture of US Captives

The district court at Norfolk finds that the Mobbs declaration (see July 25, 2002) “falls far short” of providing a basis for the continuing detention of “enemy combatant” Yaser Esam Hamdi without due process of law. “If the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi…, this Court would be acting as little more than a rubber stamp,” judge Robert Doumar writes in his ruling. He again orders the government to produce additional evidence, including copies of Hamdi’s statements, notes by his interrogators, statements by members of the Northern Alliance and relevant names, dates, and locations. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 pdf file; Washington Post, 1/9/2003] Doumar says the government’s arguments lead “to more questions than answers.” For example:
bullet The Mobbs Declaration does not say what authority Mobbs has, as “Special Advisor” to the Undersecretary of Defense for Policy, to determine the classification of a detainee. He says that during the August 13 hearing (see August 13, 2002), the government’s attorney was unable to do so. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 pdf file]
bullet The government has provided no reason “for Hamdi to be in solitary confinement, incommunicado for over four months and being held some eight-to-ten months without any charges of any kind.” [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 pdf file]
bullet Though it is claimed that Hamdi was “affiliated with a Taliban military unit and received weapons training,” the declaration makes no attempt to explain the nature of this “affiliation” or why the “affiliation” warrants the classification of Hamdi as an enemy combatant. Furthermore, the declaration “never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban.” [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 pdf file]
bullet Assertions in the document concerning statements made by Hamdi appear to be paraphrased. Hamdi’s actual statements are not provided. “Due to the ease with which such statements may be taken out of context, the Court is understandably suspicious of the Respondent’s assertions regarding statements that Hamdi is alleged to have made,” the court ruling says. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 8/16/2002 pdf file]

Entity Tags: Yaser Esam Hamdi, Robert G. Doumar

Timeline Tags: Torture of US Captives

As Bush administration lawyers warn that Vice President Cheney and his Pentagon allies are setting the government up for defeat in the courts with their hardline advice on interrogation techniques (see Late 2001-Early 2002, January 25, 2002, April 2002 and After, and August 1, 2002) and indefinite detentions (see After September 11, 2001 and December 2001-January 2002), one of the uneasiest of Justice Department lawyers is Solicitor General Theodore Olson. Cheney and Olson have similar views on the expansion of presidential powers, but his job in the administration is to win court cases. Olson is not sure that Cheney’s legal arguments are tenable. Olson is particularly worried about two pending cases, those of US citizens Jose Padilla (see June 10, 2002) and Yaser Esam Hamdi (see December 2001 and August 16, 2002). Both have been declared enemy combatants and denied access to lawyers. Olson warns that federal courts will not go along with that provision, but he finds himself opposed by CIA and Pentagon officials. When Olson and other lawyers propose that Padilla and Hamdi be granted lawyers, Cheney’s chief lawyer, David Addington, beats back their proposal because, says deputy White House counsel Timothy Flanigan, “that was the position of his client, the vice president.” The issue comes to a head in the West Wing office of Alberto Gonzales, the White House’s chief legal counsel. Four officials with direct knowledge of the meeting later recall the chain of events. Olson has the support of associate White House counsel Bradford Berenson, a former law clerk to Supreme Court Justice Anthony Kennedy. Berenson says that Kennedy, the Court’s swing vote, will never accept absolute presidential authority to declare a US citizen an enemy and lock him away without benefit of counsel. Another former Kennedy law clerk, White House lawyer Brett Kavanaugh, had made the same argument earlier. Addington, representing Cheney in the meeting, accuses Berenson of surrendering presidential authority on what he calls a fool’s prophecy about the Court; Berenson retorts by accusing Addington of “know-nothingness.” Gonzales listens quietly as the Justice Department and his own staff line up against Addington. He finally makes a decision: in favor of Cheney and Addington. [Washington Post, 6/25/2007]

Entity Tags: US Department of Defense, Brett Kavanaugh, Bradford Berenson, Alberto R. Gonzales, Central Intelligence Agency, Theodore (“Ted”) Olson, David S. Addington, Richard (“Dick”) Cheney, US Department of Justice, Jose Padilla, Yaser Esam Hamdi, Timothy E. Flanigan

Timeline Tags: Civil Liberties

In the habeas case of “enemy combatant” Yaser Esam Hamdi, the Court of Appeals for the Fourth Circuit rules again in favor of the government. The court decides that the facts presented by the government in the “Mobbs declaration” (see July 25, 2002) were sufficient to consider Hamdi rightfully as an “enemy combatant.” “Hamdi is not entitled to challenge the facts presented in the Mobbs declaration. Where, as here, a habeas petitioner has been designated an enemy combatant and it is undisputed that he was captured in a zone of active combat operations abroad, further judicial inquiry is unwarranted…,” the court holds. In response to Hamdi’s representatives’ argument that Article 5 of the Third Geneva Convention requires Hamdi’s status be determined by a competent tribunal, the court states that “the Geneva Convention is not self-executing,” and can therefore not be applied directly in a US court. [Yaser Esam Hamdi, et al. v. Donald Rumsfeld, et al., 1/8/2003 pdf file]

Entity Tags: Yaser Esam Hamdi

Timeline Tags: Torture of US Captives

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