[T]hey let him go. Because Hamdi was, of course, never really the Taliban's Dr. Evil, or even its Mini-Me. He was slammed into solitary on some flimsy assertions contained in what's known as the two-page "Mobbs Declaration." That document was authored by the adviser to the undersecretary of defense policy—a bureaucrat who wasn't actually in Afghanistan when Hamdi was captured, yet felt confident swearing that Hamdi was an enemy combatant, because, according to his captors from the Northern Alliance, he was "affiliated with a Taliban military unit."And Lupu:
The reality is that the government wanted to avoid a Hamdi trial because of the potential embarrassment of admitting that its evidence against him was inadequate. Not only that, but this precedent would undermine its credibility in future cases, such as those of the Guantanamo prisoners. So the administration did with Hamdi what it's been doing now for three years: avoid the courts, whatever the cost.Now, it's possible, of course, that Yaser Hamdi really was, as his father claims--and Lithwick and Lupu apparently believe--in Afghanistan "for humanitarian reasons"; that he was somehow taken prisoner by the Northern Alliance and mistaken for a Taliban soldier; that he was then further identified as one of the few hundred high-level detainees worthy of being handed over to American custody and shipped to Guantanamo, based on no credible evidence; and that the US has been holding him for three years now for no good reason whatsoever. In that case, it certainly makes sense that the government would rather release him than risk an embarrassing trial.
But there's another, entirely plausible--indeed, far more likely--and highly disturbing possibility: that Hamdi really is an important Taliban captive; that he really was captured by the Northern Alliance while fighting for the Taliban; and that he was quite correctly included among the prisoners significant enough to be sent to Guantanamo for further detention and interrogation, rather than being released.
Let us suppose, for a moment, that this not-so-wild scenario is correct--that is, that the US military isn't engaged in a massive cock-up and/or cover-up, and that what it's claiming about Hamdi is essentially true. How, then, would Hamdi's captors likely handle the Supreme Court's order to either try him or release him? Recall that being a member of the Taliban wasn't a criminal offense at the time Hamdi was captured. (The USA Patriot Act may plug that gaping hole in the future--if it survives the withering attacks of Lithwick and her ilk--but it cannot be used retroactively.) He would thus have to be proven beyond a reasonable doubt to have been actively engaged in combat against US soldiers at some point. Of course, the details of his capture are no doubt somewhat fuzzy, and even finding the witnesses who could corroborate the incriminating circumstances of his detention--let alone shipping said Northern Alliance irregulars-cum-witnesses to the US to testify at a trial, and then withstand cross-examination--is not likely to be a feasible proposition. Meanwhile, Hamdi's lawyer would be free to subpoena testimony from all manner of Al Qaida and Taliban captives, just as Zacarias Moussaoui did. Pursuing a trial would therefore most likely result not only in a prosecutorial failure and a public relations nightmare, but also a disastrous disruption of the isolation and interrogation regime imposed on top Al Qaida captives.
But would the government really simply release a real, honest-to-goodness high-ranking Taliban fighter, setting him free to rejoin his comrades in battle against American troops--just to allay the concerns of meddling civil libertarians? Indeed they would. After all, among feared enemies threatening to destroy America's armed forces, the Taliban have nothing on the US Supreme Court.