Government attorneys finally told Sameeh Hammoudeh, Tuesday, the main reason they're keeping him imprisoned: because they can.
This explanation was their response to a lawsuit filed by Hammoudeh's lawyer, Stephen Bernstein, against U.S. Attorney General Alberto Gonzalez, Homeland Security Secretary Michael Chertoff and others.
The suit claims that Hammoudeh's continued incarceration in an Immigration and Customs Enforcement wing of the Manatee County Jail is unconstitutional because he has been acquitted in the Sami Al-Arian case and received no jail time in a separate tax fraud case, in which he agreed to be deported.
But government attorneys argued in their written response Tuesday that the overriding reason Hammoudeh remains in jail is because ICE can legally keep him for six months, according to a U.S. Supreme Court decision.
In the Zadvydas case, the Supreme Court said it was illegal to keep a deportee in jail for more than six months without justification.
The government, relying on an 11th Circuit appellate reading of Zadvydas, says the opposite also is true: Hammoudeh "cannot state a claim for unreasonable detention" until the six months is up. Hammoudeh's argument that his continued imprisonment is unconstitutional is "premature," says the government.
Nevertheless, government attorneys wrote that ICE officials are moving forward to release and deport Hammoudeh soon. They are "currently working . . . with the Department of State to . . . return Mr. Hammoudeh to the Palestinian territories and negotiations with foreign governments are under way."
Government attorneys also offered an escape clause to this statement, which said even when an alien has his travel documents in order, he may "not be released unless immediate removal . . . is in the public interest."
There is a hearing on the question today, at which there could be any of four likely outcomes for Hammoudeh, says Miami immigration lawyer Ira Kurzban.
U.S. District Court Judge James Whittemore "could say, based on the 11th Circuit reading of Zadvydas, that Hammoudeh cannot ask to be released until June, when the six-month period is up," says Kurzban.
"Or Whittemore could say that Hammoudeh should be released immediately because he is being kept unfairly as punishment for his acquittal in the terrorism trial."
Or, he said, Whittemore could require bond, typically $5,000 to $10,000, to release him. Or he could turn the case over to an immigration judge to set bond.
In early December, a 12-person jury acquitted Hammoudeh of all charges that he raised or transferred money to Palestinian Islamic Jihad for violent activities in Israel and the occupied territories. The federal judge ordered his immediate release from jail.
But ICE officials took him into custody, saying initially that its standard of innocence was different from the jury's. A spokeswoman for the agency said they believed that "Hammoudeh had ties to terrorists" despite his acquittal.
Tuesday, on the eve of his habeas corpus hearing, Hammoudeh, who has been incarcerated for more than three years, issued this statement in a phone call to the St. Petersburg Times: "The Department of Justice and Homeland Security are working without a code of ethics and with total disregard for the truth, public opinion and human rights.
"I do not see a difference between their conduct and that of any third world oppressive regime. I hope the judge will stop this inhumane treatment."
Government attorneys declined to comment.