The Need For Habeas Corpus Writ Large

The right to challenge a detention by the government is absolutely essential to a democracy because it ensures that a government cannot deprive an individual of his or her rights without due process. That is an overly simple description of the right to habeas corpus. The current administration has taken the position that habeas corpus does not apply to those detained in the Global War on Terror, and that position was confirmed in the abominable Military Commissions Act passed by the last Congress.

In today's NY Times, a lengthy article details how the current battle over habeas corpus is currently faring in the judicial system and sheds some light as to just how far the government, our government, is willing to go on the issue.

Ali al-Marri, whom the government calls a sleeper agent for Al Qaeda and who is the only person on the American mainland still held as an enemy combatant, spends his days in a small cell in solitary confinement at the Navy brig in Charleston, S.C. When he is in an ironic mood, his lawyers say, he calls the cell his villa.

...Mr. Marri waits for word from a federal appeals court, which will soon rule on one of the most urgent questions in American law, one his case presents in stark form: May the government indefinitely detain a foreigner living legally in the United States, without charges and without access to the courts?

Mr. Marri, who is 41 and a citizen of Qatar, wants the right to challenge President Bush’s assertion that he is a terrorist and “a grave danger to the national security of the United States.” [Emphasis added]

There are a few key points in the description I've highlighted. Mr. Marri is not a US citizen; he is in the US legally; no formal charges have been filed (which means he has no way to prepare a defense); he has no access to the courts. The only missing element for "disappeared" status is that the press somehow found out about Mr. Marri's predicament.

The government has decided that it doesn't want the courts to exercise any oversight in this matter, justifying that position in a very interesting bit of twisted logic:

The Bush administration says the courts cannot second-guess the president when he decides that someone is an enemy combatant, at least when noncitizens are involved. Detaining combatants is a military rather than a criminal matter, the administration says, adding that its purpose is not to punish the prisoner but to stop him from returning to the battlefield.. [Emphasis added]

Mr. Marri was taken into custody while he was living legally in the US, not while he was fighting in Afghanistan or Iraq, and this is a "military" matter? The military may now take people off the street in this country and detain them in this fashion and the courts have no say? A number of legal scholars don't think so.

The implications of that position are startling, according to a brief filed last month in Mr. Marri’s case by some 30 constitutional scholars. “The government’s interpretation would be vastly threatening to the liberty of more than 20 million noncitizens residing in the United States,” the brief said, “exposing them to the risk of irremediable indefinite detention on the basis of unfounded rumors, mistaken identity, the desperation of other detainees subject to coercive interrogation, and the deliberate lies of actual terrorists.”

And the government response?

Kathleen M. Blomquist, a spokeswoman for the Justice Department, disputed that contention.

“Of all the terrorists currently in the custody of the United States military, al-Marri is the only one who was captured in the United States,” Ms. Blomquist said, adding that the notion that millions of people are at risk is “unfounded and absurd.” [Emphasis added]

And my initial response to that is unprintable. Suffice it to say that such a precedent is reminiscent of Germany in the 1930's and 1940's, and that is unacceptable.

It's not as if the government doesn't have any legitimate tools with which to fight terrorism in this country. Some pretty conservative former prosecutors with the Justice Department have also weighed in on this aspect of the issue.

In a brief filed in November, eight former Justice Department officials, including Janet Reno, the attorney general in the Clinton administration, said that taking Mr. Marri out of the criminal system as his case approached trial “has given to the appearance of manipulation of the judicial process.” The brief listed several criminal statutes available to prosecute people accused of terrorism along with many successful prosecutions under them.

“The criminal justice system has proven that it can make the cases,” Ms. Reno said in an interview. “For the president to be able to designate someone as an enemy combatant, without process and without regulation, just doesn’t make any sense and isn’t necessary.”

It's also unconstitutional, Ms. Reno. And the courts had better step in and stop all of this horrendous governmental misconduct right now, if not sooner.