Supreme Court takes another detention case
posted at 2:55 pm on December 5, 2008 by Ed Morrissey
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The Supreme Court announced that they would hear an appeal from Qatari national Ali al-Marri, a case that may again change the way the nation protects itself. Marri has been held without charges for five years in a Navy brig after being arrested in the US as an al-Qaeda sleeper agent. His lawyers have attempted to force the government to try him or release him, and they have an argument:
The U.S. Supreme Court said on Friday that it would decide whether President George W. Bush can order the indefinite imprisonment in the United States of an al Qaeda suspect without charging him.
In the latest test of Bush’s war-on-terrorism policies, the nation’s highest court agreed to hear an appeal by a Qatari national, Ali al-Marri, the only foreign national currently being held in the United States as an “enemy combatant.” …
After Bush designated Marri an “enemy combatant” in June of 2003, he has been held in solitary confinement in a U.S. Navy brig in Charleston, South Carolina without being charged.
Marri’s attorneys appealed a U.S. appeals court’s ruling in July that the U.S. Congress gave Bush the power to detain Marri as part of its authorization for use of military force after the September 11 attacks by al Qaeda in 2001.
They said the law authorizing military force and the U.S. Constitution do not allow for the indefinite military detention of a person lawfully residing in the United States, without criminal charges or a trial.
The key in this case lies in Marri’s status prior to his arrest. Unlike the people held at Guantanamo Bay, Marri was arrested on US soil while living here legally as a resident alien. The Bush administration has held him on US soil. Both conditions would appear to give Marri the same Constitutional protections as any other legal resident (and in some cases, even illegal aliens).
Most of us want to support an aggressive policy in the war on terror, but this sounds like a step too far. The Constitutional protections of habeas corpus should not apply to unlawful combatants seized abroad, but they should apply to legal residents and citizens of the US arrested on American soil. If the executive branch has the power to designate citizens and resident aliens enemy combatants without any due process, what limitations does the executive have on its powers? Literally anyone could get seized with that kind of designation without hope of challenging the executive to produce evidence.
We want terrorist sleeper agents captured, of course, but the government needs some sort of check to make sure that’s who we’re warehousing.
Interestingly, Barack Obama has refused to take a position on this case. His Department of Justice will have to argue it, since the court will hold its hearing in March. Will this case get withdrawn, or will Obama see it through to the final appeal? Given his status as a Constitutional law scholar, one might think Obama would have an opinion on this now.
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Which is different how? He usually tries to play both sides.
Dr.Cwac.Cwac on December 5, 2008 at 2:58 PM
He just announced his position:
“Present”
brak on December 5, 2008 at 3:01 PM
Presumably this clown is being detained because the government has some sort of evidence against him? If so, then some sort of trial is in order. Cut him loose or send him to the mikvah.
J.J. Sefton on December 5, 2008 at 3:02 PM
This is the same constitutional law scholar who said answering the question “When does a baby get human rights?” was above his pay grade.
D0WNT0WN on December 5, 2008 at 3:02 PM
That’s a lot of facial hair to carry around. I think a compromise can be reached. The government agrees to release him if he agrees to a shave, a shower, and a ham. Then we will see how much he values his freedom.
keep the change on December 5, 2008 at 3:03 PM
Why not just try the dog? There must be some sort of explanation. I’d have to hear it to better understand why he hasn’t had a trial.
sheesh on December 5, 2008 at 3:04 PM
A shave, a shower, and a ham! I think you are onto something there. :)
Blake on December 5, 2008 at 3:07 PM
Present. :)
ThePrez on December 5, 2008 at 3:10 PM
Constitution is pretty clear… that Habeus can only be suspended in times of Invasion, or insurrection… neither of which have been declared…
I’m suprised that this case was not taken up earlier, as its much more clear than the Gitmo cases….
Romeo13 on December 5, 2008 at 3:14 PM
Missing a /sarc tag there Ed?
redshirt on December 5, 2008 at 3:15 PM
Amazing what passes for a “scholar” in this day and age. Once upon a time someone had to devote their whole lives to a subject, working, writing, publishing for decades before one could really be considered a “scholar.” Guys like Einstein, Hawking, Tribe, et al come to mind. Nowadays coming out of law school and lecturing for a few years gets you the appellation “scholar.”
Well, come to think of it, its apparently enough to justify two autobiographies by age 44 and election to the highest office in the land. Can anyone here say “dumbing down of America”?
johnsteele on December 5, 2008 at 3:24 PM
Note to terrorists…this is a “look” you should try to stay away from if you are trying not to be noticed as you go about your daily terror plotting business.
Alden Pyle on December 5, 2008 at 3:29 PM
Ed-why are you surprised? Isn’t it clear by now that Obama will never be able to form his own opinion without months of polled opinions from others & input from cabinet members?
And though I hate to see a spy go free-if we’ve got nothing on him, why in the hell is he still in custody?
That is crazy. Let him go & then watch him if you have to.
Maybe BO has no opinion bcs he’s been considering using this tactic to deal with the sheeple soon.
Badger40 on December 5, 2008 at 3:29 PM
What about our rights to prevent turds like this from trying to kill us?
Kini on December 5, 2008 at 3:36 PM
Is it just me or is that a bullseye on his forward?
Insert bullet here. Wash. Rinse. Repeat.
NoDonkey on December 5, 2008 at 3:41 PM
Are those newsreaders still saying “Gutter”?
Tzetzes on December 5, 2008 at 3:44 PM
Here’s a charming little story
“ACLU of Ohio and NWO Peace Coalition present poetry of Guantanamo detainees
by Ryan A. Bunch
published December 3rd 2008
There are many sides to every story. Often, only one side is told.
This week, the ACLU of Ohio and the Northwest Ohio Peace Coalition team up to shine a light on the silent side of “The War on Terror” with a Wednesday, December 10 reading from “Poems from Guantanamo: The Detainees Speak,” at Sanger Branch Library at 7 p.m.”
. . .
Brickner explained the ACLU’s goal, “The people housed there deserve basic human rights that we all should enjoy. That’s why we’re having this event on the 60th anniversary of the UDHR. This [is] a human rights issue,” he said, “The ACLU has been very active representing detainees, and advocating that torture shouldn’t be used,” he said, “All detainees should have a fair trial in the criminal justice system.”
Ugh!
rbj on December 5, 2008 at 3:49 PM
The lesson here is to shoot these m.f.ers as they try to ‘escape’ and then the trial is not necessary. Money spent on this guy could be better used for bailouts or paying down Hillary’s debt.
grdred944 on December 5, 2008 at 3:51 PM
I understand the point, but I have to quibble with the characterization of his status. In the legal teaching profession, a scholar at some point actually writes and publishes a, er, scholarly article. From what I’ve read, Obama hasn’t published, let alone written, such a article.
Let’s call him what he was at University of Chicago–an adjunct who taught a few law school courses over several years. Only after some people started describing Obama as a mere lecturer in law did some friends at University of Chicago elevate him to the status of a professor.
I wouldn’t let Obama walk my dog, let alone chime in on a constitutional law matter–or run a nation–but I guess he’ll get to do each of the latter two things for at least four years.
BuckeyeSam on December 5, 2008 at 3:51 PM
No shave or shower – just have him sit next to Harry Reid for a while and let him know what real stench is like…..
DL13 on December 5, 2008 at 3:53 PM
Sweet
saiga on December 5, 2008 at 3:54 PM
First Plaxico, then O.J., now Polamalu?
/Rough week for pro footballers!
Christien on December 5, 2008 at 3:54 PM
At the same time, I’m not aware that either of those Ohio groups are jumping in to the matter of the invasion of Joe the Plumber’s privacy. Fortunately, the Columbus Dispatch is following the matter, and some Ohio legislators are offering some legislation because two officials weren’t fired–mere one-month vacations (paid) for the Christmas season.
http://michellemalkin.com/2008/12/05/whistleblower-exposes-the-joe-the-plumber-snoopers-cover-up/
WTF.
BuckeyeSam on December 5, 2008 at 3:55 PM
This is pretty indefensible on the part of the government. Scratch the pretty.
Even with Padilla, a similar case (although Padilla was a US citizen), they brought him before civilian courts.
If Marri was here legally, then he should be afforded full constitutional protections.
Should? Must.
Either the evidence is slim or determined to be inadmissible in court or someone really screwed up.
SteveMG on December 5, 2008 at 4:05 PM
Why don’t we just thank him publicly for his cooperation in prison in busting terror cells and release him back to his jihadi brothers?
Tantor on December 5, 2008 at 4:12 PM
Sure, we’ll include a copy of the Talmud as a going-away present too.
Maybe some copies of Rushdie’s works too.
$100 gift certificate to Bob Evans.
SteveMG on December 5, 2008 at 4:24 PM
This is indeed inexcusable. It’s worth noting, however, that it isn’t merely the Bush administration that is at fault here. I wrote my two Senators (both of whom are Democrats) about the problem of people being held without charges back in 2004 and both of them said, in effect, “don’t worry about it, we’ll handle it.” Well, obviously nothing was done in this guy’s case and there are dozens of other similar cases. Elected officials need to take responsibility for doing the right thing, even if there are no political advantages.
If this guy is guilty, he deserves to be punished. But we all deserve for him to have a public trial so that we can find out the truth.
JackOfClubs on December 5, 2008 at 4:26 PM
I’d jail him just because of his hair.
Jaibones on December 5, 2008 at 4:49 PM
I have to wonder if there is more to this than we know. Why not just ship him to Gitmo?
Sounds strange.
Terrye on December 5, 2008 at 4:56 PM
Jackofclubs:
I can remember back in the 90s people being held as well. There is nothing new here. I wish I could remember the year, but a bunch of people jumped a ship from some Asian country and they were picked up. The government could not decide whether to give them asylum or deport them so they kept them locked up for years.
Terrye on December 5, 2008 at 4:58 PM
Because he was, apparently, a legal resident of the US who was captured here.
The Court has ruled – and Congress legislated – that legal residents of the US have the same Constitutional rights as US citizens.
My guess is that they have evidence on him that would be inadmissible in court.
SteveMG on December 5, 2008 at 5:09 PM
Interesting post by Prof. Orin Kerr (link).
Nut graf:
SteveMG on December 5, 2008 at 5:37 PM
During the Mariel (sp?) boat lift in the 1980s, when Cuba was dumping its prison population on the US, weren’t a number of Cubans basically imprisoned in the US for years, w/o charges? IIRC, Arkansas was the worst offender of this. Which was directly attributable to the governor at the time, I wonder what became of him, and which party he was from . . .
rbj on December 5, 2008 at 6:38 PM
Under the Geneva Convention, enemy combatants must not be subject to the civilian court system of the detaining power if a soldier in its own military is not subject to same system for on-duty behavior. They must be subject to the identical courts-martial system to which our own soldiers are subject.
If the combatant is determined to be a civilian, he must be repatriated. That means that Ali al-Marri gets a one-way ticket to Qatar if he’s released.
All is good.
unclesmrgol on December 5, 2008 at 7:11 PM
But isn’t the argument that these are unlawful combatants and therefore the GCs rules don’t apply?
And we still have the little issue called the Supreme Court and US laws. Recall that international laws or treaties, even if ratified, cannot override or cancel out the Constitution. E.g., a international law or treaty provision cannot cancel out the First Amendment.
SteveMG on December 5, 2008 at 7:26 PM
Habeas corpus can be suspended during an invasion or insurrection.
9/11 was such an invasion.
The Pentagon itself was hit, for the first time in history.
Thus habeas does not apply in this terrorist sleeper’s case.
(Meanwhile, they should leave a nice new bathrobe with a real strong belt in his cell for the holidays.)
profitsbeard on December 5, 2008 at 7:26 PM
definition:
Hair Qatar: a middle easterner that acts like a jihadi but only goes through the motions.
moxie_neanderthal on December 5, 2008 at 8:45 PM
Obama has no position on anything except his own desire for power. Then his answer is, unequivocally, “yes.”
SilentWatcher on December 5, 2008 at 8:50 PM
It seems to me that terrorist infiltration, whether by illegal border crossings or masquerading at customs, constitutes a circumstance of invasion. The key question then should be whether the individual in question falls into that category. If overwhelming evidence can be shown to that effect, then it’s not illogical that habeas can be suspended for those individuals, and for meetings and communications in which they participate.
njcommuter on December 5, 2008 at 9:19 PM
Yes, if they’re here illegally or they’re not US citizens.
If I have my law right, the Court ruled in Hamdi that the President had the authority under the AUMF to detain terrorists or suspected terrorists. But they ruled that they must be given some sort of status review on their detention.
However, if they’re tried (as opposed to detained), then we must give them habeas rights (all of which to be determined).
But Mari was here legally and picked up in the US and not overseas and has been held here. Those held at Guantanamo were captured abroad and were not US citizens.
So, does Mari go before a military status review tribunal to determine whether he can be detained? Or does he have habeas rights before a civilian court?
My guess: 5-4 with Kennedy deciding in favor of Mari.
Yeah, I’m really gambling aren’t I?
SteveMG on December 5, 2008 at 9:29 PM
Try him in a secret trial, blind fold him, and give him a ciggarette…..Bang
Constitution and justice satisfied
paulsur on December 5, 2008 at 11:50 PM
Well Ed, if it is interesting when Obama does not take a position then the man has provided enough to interest us for a long time. As for Obama’s interpretation of the Constitution, he has already said it is flawed. It is just a matter of seeing which parts he decides to “rework” while in office.
Hawthorne on December 6, 2008 at 4:00 AM
I was working at a TV station in Peoria when this guy was arrested- just down the road from where I worked. It’s kind of scary to think that someone from Al-Qaeda was so close to where I was.
Of course, from the looks of the guy, I never would have guessed he was a terrorist./sarc
VanPalin on December 6, 2008 at 10:08 AM
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