Why Habeas Corpus, the Hamad Project, and the Duke Lacrosse Case Are All Related

In response to my post about Mr. Stimson I received an invitation to view this website: Project Hamad

The invitation came right on the heels of my having seen most of the 60 Minutes report on appalling and flagrant prosecutorial misconduct in the Duke lacrosse case.

As the Stimson incident demonstrates there is among our leadership a disregard for the rule of law and the principles of fairness shocking to all Americans who regard them as the bedrock of our society. It is not ethnicity or religion which makes us Americans, but our abiding belief in the principle that all are created equal and the laws should apply equally to all. It is our inherent suspicion of power which gave us our system of checks and balances, and our belief that all accused persons should have the right to confront their accusers and examine the evidence and test the witnesses which makes our system great.

The Duke lacrosse case shows that in the face of abiding prosecutorial ambition, incompetence, and outright dishonesty even the rich and privileged in this country may find themselves branded as criminals and prosecuted, despite proof of innocence. Does anyone seriously think this was an isolated instance? What would cause an experienced prosecutor to so casually hide exculpatory evidence and manipulate the findings in the case? A pervasive culture of corner-cutting and lax ethical standards, that's what. He did it because where the defendant is not a rich white kid with dedicated and determined parents and aggressive and competent legal representation he gets away with it. The Duke case demonstrates why we have to have standards of evidence and discovery in criminal cases. What would have happened to these boys if their lawyers had not been able to scrutinize the evidence, the reports, and hire their own expert?

Then there is Adel Hamad. He is described as a father of four from Sudan who was working at a hosptial run by an NGO called World Assembly of Muslim Youth (WAMY) in Pakistan, distributing food and clothes, etc. WAMY is alleged to possibly support "terrorist ideals". Mr. Hamad was arrested in his bed in the middle of the night and sent to Gitmo, where after several years of incarceration without charge he was given an administrative review hearing, at which he denied that WAMY is a terrorist organization and asked why he, an employee, would be arrested rather than the CEO or administrators. The review panel voted to keep him, but with a lone dissenter:

The U.S. Army Major, who dissented in his case, concurred: "Even if elements of certain NGOs provide support to terrorist ideals and causes that is insufficient to declare an employee of said NGO an enemy combatant; to do so would lead to unconscionable results: one would have to declare all physicians, nurses and aid workers of any suspect NGO as enemy combatants; the ramifications of such logic would lead to unforeseen and unconscionable results."

Article 20 of the 4th Geneva Convention states: Persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal, and transporting of and caring for wounded and sick civilians, the infirm and maternity cases, shall be respected and protected.

The report goes on to state:

The dissenting [said] "The fallacy of logic that seeks to classify Hamad as an enemy combatant because he many have come in contact with al Qaida member in the course of providing aid to refugees, or teaching at a school, would also provide support that a local merchant who 'came in contact' with al Qaida members could be detained as an enemy combatant."

... Interviews with Dr. Sailani, and Dr Roghman (both WAMY hospital physicians) and Dr Najib (the hospital director and general surgeon) reveal that Hamad never spoke about politics, that there was no anti-American activity at the hospital and that Hamad did not have contacts outside the hospital grounds.

So far, no other evidence aside from a possible tenuous guilt by association has been leveled against Mr. Hamad. There is no evidence that he's ever picked up a weapon, been on a battlefield, or even expressed approval of terrorist activity. However, Mr. Hamad does not have the right to bring a petition for a writ of Habeas Corpus because the Administration, with the connivance of Congress members who appear to fear this ancient curb on arbitrary and capricious detention as much as they fear terrorists, gutted this essential writ and made it unavailable to him.

Do we really want guys like Stimson making the decisions about who should be incarcerated indefinitely? Are we that afraid of our own system of justice that we cannot use it to sort out the good from the bad? Can we not even extend some form of protection against fear-based and fear-mongering prosecutorial excess against the defenseless, whether they be good or bad? If Mr. Hamad is a terrorist then show me, and I'd be happy to lock the door on him permanently, but give the man the right to know what evidence exists against him. It's basic fairness.

Cross posted to Raising Kaine