Sunday, November 09, 2008

And Not Just At Gitmo

Today's Washington Post has an article on another Bush detainee, only this one has been held in a Navy brig here in the US for the past five years without charges being brought.

Ali Saleh Kahlah al-Marri was close to going on trial for fraud when prosecutors marched into an Illinois courtroom with a demand. Dismiss the charges, they said, because President Bush had just designated the defendant an enemy combatant.

Marri's attorneys protested, but U.S. Attorney Jan Paul Miller declared that the military had already taken custody of the Qatari national, now deemed an al-Qaeda sleeper agent. "There is no longer a judicial proceeding before this court," he said.

With that, Marri was whisked to a Navy brig in Charleston, S.C., where he has spent more than five years. His case raises a question with vast implications for presidential power and civil liberties: Can the military indefinitely detain, without charge, a U.S. citizen or legal resident seized on U.S. soil?
[Emphasis added]

A divided Fourth District Court of Appeal has held that it can, so Mr. al-Marri's attorneys have appealed to the US Supreme Court on the habeas corpus issue. Final briefs have been filed and both sides are waiting to hear whether the court will accept the case.

Mr. al-Marri, while not a citizen of the US, was here legally on a student visa. He was on US soil when taken by the military. The article quite properly points out that this case is similar to that of Jose Padilla, who was an American citizen when picked up. The government ultimately tried Mr. Padilla in a civilian court rather than face Supreme Court scrutiny on the issue of the detention.

The issue is a serious one, primarily because it gives the government unlimited authority to "detain" anyone, any place, any time, and to hold them indefinitely without charge and without trial.

Jonathan Hafetz, an attorney with the American Civil Liberties Union who represents Marri, said his client's detention "is the broadest and most radical assertion of detention power since September 11. That the president can order the military to seize someone from their home, their business, from the streets and lock them up in jail potentially forever, without trial, goes against 230 years of American precedent and the basic idea that this country was founded on."

Government lawyers scoff at the notion that the power to detain terrorists would be expanded to include anyone else, but the fact is that the power to detain without charge is in and of itself unconstitutional, as the Supreme Court has already ruled.

Here's the kicker in this story. If the Supreme Court agrees to hear the case, it will be President Obama's Justice Department that will be arguing the issue before it. While the President Elect has made it clear that he wants to close Guantanamo Bay and end the Military Commission system, he has made it equally clear that he will wage a muscular war on terrorism. Will his administration follow through on his campaign rhetoric and allow Mr. al-Marri his day in a civilian court with charges clearly spelled out and a chance at a real defense?

This might be Mr. Obama's first and perhaps most serious test. I hope his answers line up with the Constitution he will be taking an oath to defend and preserve.

Labels: ,


Anonymous Anonymous said...

The irony of it all is that just as Bush yanked Padilla out of military custody (and into civilian custody and a civilian trial) just before the Supreme Court made a decision, Obama may well do the same thing.

He certainly can't "pardon" al-Mari, lest the "soft on terror" canard greet him off the bat. I suppose he could release him on bail, after charging him, and seeing if a case can be made.

But it's just one of many things in which a mess has been left to clean-up by the Bushmen.

5:23 AM  

Post a Comment

<< Home