The Obama Administration's First Test
An incredibly important case is scheduled for argument this Spring in the Supreme Court, and the Obama-led Justice Department won't have much time to decide how to handle it. The government's brief is due February 20.
It is the case of Ali al-Marri, a Qatari national who was arrested in his home in Peoria, Illinois shortly after 9/11. For over a year, al-Marri was held on federal criminal charges. Then, in 2003, on the eve of his criminal trial, he was transferred into military custody at the order of the President and has been held in a military brig in South Carolina ever since. Much of that time he was held incommunicado for the purposes of interrogation.
Al-Marri's case is particularly significant because he is the only person currently being held as an "enemy combatant" within the United States. Though not a U.S. citizen (like Jose Padilla), al-Marri was a legal resident at the time of his arrest, and under long-established precedent, legal residents are entitled to the same due process under our criminal justice system as citizens.
The Bush administration claims that al-Marri is an al-Qaeda "sleeper agent," and therefore the President has the authority, both inherently and under the AUMF, to militarily detain him as an enemy combatant until the "end of hostilities" (i.e. forever).
When Obama takes office in a few weeks, his Justice Department team will have to make some immediate decisions regarding not just its legal position but the consequences of that position with respect to al-Marri's current state of detention. If they conclude that the legal rationale underlying al-Marri's detention is untenable, they'll have to do more than edit their brief; they'll have to do something with al-Marri himself. My guess is that they'll either institute criminal charges (as the Bush administration eventually did with Jose Padilla) or they'll commence deportation proceedings and detain al-Marri pursuant to the Patriot Act and immigration law.
If they do either of those things, they'll have the option of arguing that al-Marri's case is now moot, but my guess is that the Supreme Court wants to rule on this case and will find a reason to proceed to the merits.
So what position will the Obama administration take? Will they agree with the four dissenting judges on the Fourth Circuit that combatant status is limited to those who fight on behalf of a enemy nation, not a stateless organization like al Qaeda? My guess is no. This position, while stronger on the merits than its critics give it credit for, is one that I don't imagine any administration would be willing to concede.
I think the best case scenario is that we see a concession from the government that Congress has not authorized the President to military detain people found legally residing within the United States. The phrase "within the United States" was intentionally left out of the AUMF, and for a reason. Furthermore, the Patriot Act, which was passed just weeks later, specifically provides for a 7 day detention period for "terrorist aliens" found within the United States, after which criminal or deportation proceedings must be initiated. In fact, as I've documented previously, the Bush administration pushed hard to have an indefinite detention power included in the Patriot Act. Both Republicans and Democrats in Congress pushed back and the result was the 7 day detention period currently authorized by the law.
Now, under ex parte Milligan, arguably even Congress does not have the power to authorize the military detention of U.S. persons when the courts are otherwise open and functioning. But again, this strikes me as a position that no administration is likely to concede, particularly in light of ex parte Quirin and Hamdi.
I do expect that the Obama administration will make some concessions, though. The most likely, it seems to me, is a concession that the basis for originally detaining al-Marri was improper. Remember, al-Marri was already in federal custody and facing trial on criminal charges when the Bush administration transferred him to military custody. There's little question that this move was made for interrogation purposes. The government had been trying to pressure al-Marri into talking, but he was intent on going to trial. So instead they transferred him to military custody and held him incommunicado for 18 months in order to extract information from him (probably by unlawful techniques).
Even if you assume that the President, pursuant to the AUMF, has the authority to military detain al Qaeda "combatants" found legally residing within the U.S., the justification for such detention has to be limited to incapacitation, to preventing the combatant from returning to the "battlefield" and doing more harm. That's the purpose of detention under the laws of war. In this case, al-Marri was already in custody on a criminal matter. He was incapacitated and there was no chance of him "returning to the battlefield." Under those circumstances, transferring him to military custody is not justified, even if you accept all of the government's premises.
This a real test for the Obama administration. If they don't back off at least some of the positions taken by the Bush administration in this case, it will leave a lot of people (myself very much included) very disappointed and angry.
It is the case of Ali al-Marri, a Qatari national who was arrested in his home in Peoria, Illinois shortly after 9/11. For over a year, al-Marri was held on federal criminal charges. Then, in 2003, on the eve of his criminal trial, he was transferred into military custody at the order of the President and has been held in a military brig in South Carolina ever since. Much of that time he was held incommunicado for the purposes of interrogation.
Al-Marri's case is particularly significant because he is the only person currently being held as an "enemy combatant" within the United States. Though not a U.S. citizen (like Jose Padilla), al-Marri was a legal resident at the time of his arrest, and under long-established precedent, legal residents are entitled to the same due process under our criminal justice system as citizens.
The Bush administration claims that al-Marri is an al-Qaeda "sleeper agent," and therefore the President has the authority, both inherently and under the AUMF, to militarily detain him as an enemy combatant until the "end of hostilities" (i.e. forever).
When Obama takes office in a few weeks, his Justice Department team will have to make some immediate decisions regarding not just its legal position but the consequences of that position with respect to al-Marri's current state of detention. If they conclude that the legal rationale underlying al-Marri's detention is untenable, they'll have to do more than edit their brief; they'll have to do something with al-Marri himself. My guess is that they'll either institute criminal charges (as the Bush administration eventually did with Jose Padilla) or they'll commence deportation proceedings and detain al-Marri pursuant to the Patriot Act and immigration law.
If they do either of those things, they'll have the option of arguing that al-Marri's case is now moot, but my guess is that the Supreme Court wants to rule on this case and will find a reason to proceed to the merits.
So what position will the Obama administration take? Will they agree with the four dissenting judges on the Fourth Circuit that combatant status is limited to those who fight on behalf of a enemy nation, not a stateless organization like al Qaeda? My guess is no. This position, while stronger on the merits than its critics give it credit for, is one that I don't imagine any administration would be willing to concede.
I think the best case scenario is that we see a concession from the government that Congress has not authorized the President to military detain people found legally residing within the United States. The phrase "within the United States" was intentionally left out of the AUMF, and for a reason. Furthermore, the Patriot Act, which was passed just weeks later, specifically provides for a 7 day detention period for "terrorist aliens" found within the United States, after which criminal or deportation proceedings must be initiated. In fact, as I've documented previously, the Bush administration pushed hard to have an indefinite detention power included in the Patriot Act. Both Republicans and Democrats in Congress pushed back and the result was the 7 day detention period currently authorized by the law.
Now, under ex parte Milligan, arguably even Congress does not have the power to authorize the military detention of U.S. persons when the courts are otherwise open and functioning. But again, this strikes me as a position that no administration is likely to concede, particularly in light of ex parte Quirin and Hamdi.
I do expect that the Obama administration will make some concessions, though. The most likely, it seems to me, is a concession that the basis for originally detaining al-Marri was improper. Remember, al-Marri was already in federal custody and facing trial on criminal charges when the Bush administration transferred him to military custody. There's little question that this move was made for interrogation purposes. The government had been trying to pressure al-Marri into talking, but he was intent on going to trial. So instead they transferred him to military custody and held him incommunicado for 18 months in order to extract information from him (probably by unlawful techniques).
Even if you assume that the President, pursuant to the AUMF, has the authority to military detain al Qaeda "combatants" found legally residing within the U.S., the justification for such detention has to be limited to incapacitation, to preventing the combatant from returning to the "battlefield" and doing more harm. That's the purpose of detention under the laws of war. In this case, al-Marri was already in custody on a criminal matter. He was incapacitated and there was no chance of him "returning to the battlefield." Under those circumstances, transferring him to military custody is not justified, even if you accept all of the government's premises.
This a real test for the Obama administration. If they don't back off at least some of the positions taken by the Bush administration in this case, it will leave a lot of people (myself very much included) very disappointed and angry.
posted by A.L. at 11:18 AM
11 Comments:
Thanks for this.
AL, what do you think the Supreme Court is likely to rule? A part of me would really like to see the Obama Administration make a pro forma argument of the Bush position and lose so as to make it clear, now and forever, that the President does not have that power. Of course, if there is any danger of such an argument winning, I would want to see them back off and take a milder position. But the point is, it is important to establish that the President's powers are limited by law, not merely that he is voluntarily refraining from using them.
MESSAGE TO EVERY MEMBER OF CONGRESS:
When counting the electoral votes, either Congress finds by 1/8/09 that Obama, not being an Article II “natural born citizen”, fails to qualify as President whereupon Biden becomes the full fledged President under 3 USC 19 (free to pick his own VP such as Hillary) or thereafter defers to the Supreme Court to enjoin Obama’s inauguration with Biden becoming only Acting President under the 20th Amendment until a new President is duly determined.
The preferable choice, at least for the Democrats, should seem obvious.
You're a silly guy Ted.
I don't think Obama is going to get into office and start performing any acts of goodness like the vast majority of his supporters think. The war in Iraq will not end, the war in Afghanistan will increase its intensity, there will be new wars in Pakistan and maybe Iran, Guantanamo may close but people will not go home, Israel will continue to do whatever it wants and suffer no consequences...
How about we assume that the Court, the president might know something that you don't assume?
Being a blogger, or having a security clearance with the correct information are two different things.
We do we always assume that a WRONG has been done. Why divulge the sources of intel because something thinks they have the right to know?
I think a more important questions is? Is he a terrorist or not?
I think a more important questions is? Is he a terrorist or not?
The really important question is, and always has been, how that determination is to be made. Is the president required to follow a legal process by prosecuting him in a court of law? Or can the president just designate someone to be a terrorist, enemy of the state, bad person etc., then lock them up forever and do anything they want to them with no explanation or recourse by the power he assumes according to the doctrine of secret knowledge (the modern replacement for divine right). The former is required in a free society. The latter is what happens in a police state.
It really shouldn't be up to Obama to decide whether or not he wants to keep powers the Bush administration should never have been allowed to claim in the first place. If we had a congress or a press which weren't entirely dysfunctional we wouldn't be in the position of hoping the president is a saint or the supreme court acts as a fail safe despite being stacked with four wingnuts and one justice who may or may not be on any given day.
I'm still curious to see if Republicans are going to try to roll back any of the powers they were happy to let Bush seize, or will they just concentrate on taking Obama down and returning the presidency to it's rightful heirs (i.e. Republicans).
Ted:
You've been polluting many blogs and message boards with this nonsense. For your own sake, find a more productive outlet for your neuroses.
Best,
Bob
Dread,
I would for one not have dead American civilians. Classified material is just that. You are talking about you not having to be told exactly how and why someone was caught as a terrorist?
This is what gets me. The issue isn't whether he was a bad guy and death to American civilians or our economy wasn't averted, but rather that you weren't called first, given a PowerPoint Brief and the American public wasn't satisfied.
Ok, Mr. President, we have a terrorist. We need to convince the public that he really is a terrorist. Lets start a TV campaign to sway public support. Let's divulge our methods and secrets. (Not that the bad guys have the ability to learn from their mistakes or watch TV)
I think you misunderstand why clearances are given and why intel isn't pushed through CNN, MSN or Fox.
But it's easier to assume that Bush is bad and he just goes around picking up a few guys from around the US. I am sure this just amuses him.
Absolutely, Dread Scot, as our anonymous authoritarian (AA) says, we need no due process or constitutionally protected right of habeus corpus. All we need are people in positions of authority who are not "bad" and things will be just fine. After all, it's unheard-of and unthinkable that people would be corrupted by power.
I do object to AA's unnecessary use of a strawman argument, pretending that anyone here (or anywhere) required that they, themselves, be shown the evidence and be convinced. But he's right, you know, a trial would just be superfluous, once our dear leader (or his designated subordinates) has determined that the person is a "terrorist."
I do object to AA's unnecessary use of a strawman argument, pretending that anyone here (or anywhere) required that they, themselves, be shown the evidence and be convinced.
Rule number one for conservative argument is never allow an opponent to define their own position. Always assume license to mischaracterize it as something ridiculous which can then be mocked and attacked with standard issue talking points. Then they insist their opponent must defend the strawman or concede. If conservatives ever acknowledged what their critics were actually saying and what the argument was actually about, they'd almost always find themselves in a losing position before they even started. By insisting on arguing only their talking points in their 'frame', they can appear to turn the situation around and defeat common sense and human decency in nearly every case.
A classic example of this was in one of the 2004 presidential debates when Kerry said something about U.S. actions like invading other countries being subject to a "global test". It was a very common sense argument. If we want the rest of the world to be on our side and believe that an invasion with all the destruction, suffering and death that would inevitably be inflicted on people who were not our enemies was necessary and justified, then we need to give a reason which isn't transparent B.S. Instead of trying to argue against that, Bush instead turned it into "giving the French veto power". That the American media and public routinely allow, encourage and legitimize such dishonesty is a continuing disgrace.
The basic right wing position in this case is that if the government even remotely suspects that someone might be a terrorist (a term that has been so thoroughly and opportunistically exploited and abused that it is now devoid of any meaning beyond 'someone I don't like') then the only responsible course of action is to imprison them forever and torture them. Insisting on due process, the idea that a government must actually produce a credible reason to deprive someone of life and liberty, is just madness. Anyone who thinks we should abide by things like the Geneva Conventions might as well be arming the terr'ists themselves.
The sanctity of and reverence for classified information is about as transparent an appeal to the doctrine of secret knowledge as you can get. To buy any of the crap though, you would have to think there had never before been prosecutions of spies, saboteurs, mobsters, etc. involving classified information, undercover operatives, informants and other secrets the government needed to keep secret. The justice system has found ways to balance the fundamental right of due process against the government's need to keep secrets. There has always been a back and forth struggle there and I don't expect it to end soon, or ever. What is nove is the easy acceptance of the idea that there is no need for due process at all.
I wonder about the motivation for this position and the adamant refusal to realize that it is sacrificing not just a little liberty, but the whole foundation of it, without even the promise of a little temporary security in return. I realize in an academic sense that fear is a defining characteristic and motivation for authoritarian followers, but are they really so afraid the terr'ists are going to get them? Obviously, people who cheer endless war as a primary tool of foreign policy and insist an unlimited number of people should be wounded and killed to protect their leaders and themselves from having to admit error are not the least bit concerned for anyone else's life. But are they really driven by the fear someone is going to get them or theirs?
Dread Scott,
I have a few issues with your statements.
"Anyone who thinks we should abide by things like the Geneva Conventions might as well be arming the terr'ists themselves."
I think you should look up the definition of "Geneva Convention". Who is afforded it, who abides by it and who doesn't. I know I fall under it, but you do not. I know that if captured, in reality I will never see these, being killed first If I'm so lucky.
"The basic right wing position in this case is that if the government even remotely suspects that someone might be a terrorist (a term that has been so thoroughly and opportunistically exploited and abused that it is now devoid of any meaning beyond 'someone I don't like') then the only responsible course of action is to imprison them forever and torture them."
How many times have you been to Iraq, Afghanistan, Horn of Africa or Gitmo? You speak like an expert on the subject, but I think your credentals of what goes on is a little weak.
"The sanctity of and reverence for classified information is about as transparent an appeal to the doctrine of secret knowledge as you can get. To buy any of the crap though, you would have to think there had never before been prosecutions of spies, saboteurs, mobsters, etc. involving classified information, undercover operatives, informants and other secrets the government needed to keep secret."
This is the biggest farce, most information is classified because of the sources, not the actual information. Until you get a clearance maybe your opinion of classified info is suspect.
"I wonder about the motivation for this position and the adamant refusal to realize that it is sacrificing not just a little liberty, but the whole foundation of it, without even the promise of a little temporary security in return. I realize in an academic sense that fear is a defining characteristic and motivation for authoritarian followers, but are they really so afraid the terr'ists are going to get them?"
No body said sacrifice any liberty. Your perception and law degree really don't amount to squat if you aren't privy to the facts. We have legal people that are read on to programs, these programs don't go unchecked. It's people like you, who sit outside the umbrella and pretend to know what is going on. (I respect your ideas and agree with your statements about due process and not letting the president do what he wants. But let's pretend Bush really has the power the do whatever he wants, what's his beef with this young man. This amounts to low hanging fruit for all the Bush haters......for what?)
"Obviously, people who cheer endless war as a primary tool of foreign policy and insist an unlimited number of people should be wounded and killed to protect their leaders and themselves from having to admit error are not the least bit concerned for anyone else's life. But are they really driven by the fear someone is going to get them or theirs?"
This statements dug the deepest. Every service member volunteers to serve, that is what is great about the men and women that carry out Foreign Policy. How many times have you been shot at? How many times have you shot back? The military isn't a bunch of war-seeking red-necks. Every day service members are wounded or killed, I think maybe they care more about someone's else's life since it will be their lives taken or lives they take.
Having a sailor or soldier killed and having to tell their parents, wife or kids is the hardest thing to do. But don't every think it's because of whoever is in the White House, What is in the news, or you.
And nothing is going to change with Obama. The things you don't see or understand are in place for a reason. And most will never be explained to you at all. I won't challenge you on your law, that would be like you challenging me on what goes on in classified programs, Gitmo, Iraq or countries that don't make the news. Actually strike that sentence, Media always trumps boots on the ground.
V/R U.S. Service member
Post a Comment
Links to this post:
Create a Link
<< Home