Hot Air » Blog Archive » Supreme Court — and Obama administration

Supreme Court — and Obama administration — keep AQ sleeper in prison

posted at 6:10 pm on March 6, 2009 by Ed Morrissey
Share on Facebook | printer-friendly

The Supreme Court rejected an appeal by detained terrorist suspect Ali al-Marri today, mostly because the Obama adminstration wound up mooting the argument. Al-Marri’s case was unique, as I wrote in December. The US detained him for years as an al-Qaeda sleeper agent living in the country and held him in military detention without trial. The Obama administration charged him in criminal court last week, resolving his status — and preventing an erosion of powers that Obama himself criticized Bush for using:

The Supreme Court dismissed a challenge Friday by suspected al-Qaida sleeper agent Ali Al-Marri to the president’s authority to detain people without charges, granting an Obama administration request to end the high court case.

The Supreme Court also threw out, as moot, the federal appeals court ruling al-Marri was challenging that affirmed the president’s power to detain people in the United States without trial. Al-Marri and civil liberties groups had asked the court not to leave the appeals court ruling in place in the event it dismissed al-Marri’s appeal.

Last week, President Barack Obama ordered al-Marri transferred from military to civilian custody to face federal charges of conspiracy and providing support to terrorists.

But Obama has not renounced the use of preventive detention, which was pursued and defended aggressively by the Bush administration after the terror attacks of Sept. 11, 2001. The administration’s silence on this issue was the main reason al-Marri’s lawyers pushed the court to hear the case even after their client got what he was seeking — if not his release, a trial at which he could answer criminal charges.

The Bush administration got this one wrong. Capturing terrorists on foreign battlefields does not require the military to act like a local police department, but American residents arrested by the police or FBI should have the same constitutional protections as everyone else here. The Bush administration rationale that AQ sleepers constitute an invading army opens the door wide to potential abuse of arrest and detention powers in the executive branch.

That makes the Obama action all the more interesting. Obama’s team took pains to keep the courts from making a ruling on the constitutionality of al-Marri’s treatment. After making a lot of noise about the supposed abuses of the Bush administration, Obama seems very tempted to keep the door open to them for himself.

The DoJ will now prosecute al-Marri in regular court, similar to what happened with Zacarias Moussaoui. In this case, that’s what should have been done long ago.

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages:

Dying of thirst in an economic desert, this is a quick sip from a warm canteen of Tab. Nonetheless, I am grateful.

MadisonConservative on March 6, 2009 at 6:12 PM

The courts will be the death of us all.

promachus on March 6, 2009 at 6:13 PM

Arrested or “captured” on American soil…then the federal court (and detention facility) is the only Constitutional route to take.

Captured abroad…military detention facility abroad, and no access to the federal courts is the only Constitutional route to take.

As for Obama, he’s got nothing, thus sticking to the precedents established under President Bush is the only route he can take.

coldwarrior on March 6, 2009 at 6:17 PM

this is a quick sip from a warm canteen of Tab.

Dude.

Ed Morrissey on March 6, 2009 at 6:18 PM

Capturing terrorists on foreign battlefields does not require the military to act like a local police department, but American residents arrested by the police or FBI should have the same constitutional protections as everyone else here.

Yes.

rbj on March 6, 2009 at 6:26 PM

Nothing from Allah today?

Disturb the Universe on March 6, 2009 at 6:31 PM

So,Obama is continuing the Bush Policies,

interesting,and yet,all quiet on the Anti

War Moonbat Front!

More ‘WORDS’ from Obama!

canopfor on March 6, 2009 at 6:33 PM

rationale that AQ sleepers constitute an invading army opens the door wide to potential abuse

Granted, but that’s good reason to inform the public why electing untrustworthy presidents is risky. The president is accountable to the public for protecting the country and the constitution. Judges are not. The logic of the constitution argues that protecting the country is trump.

For 99.99% of real world cases your approach is fine. But … You don’t have to ba a fan of 24 to imagine what an exception might look like.

boris on March 6, 2009 at 6:40 PM

Dying of thirst in an economic desert, this is a quick sip from a warm canteen of Tab. Nonetheless, I am grateful.

MadisonConservative on March 6, 2009 at 6:12 PM

As long as it isn’t Sparx!

blatantblue on March 6, 2009 at 6:41 PM

For 99.99% of real world cases your approach is fine. But … You don’t have to ba a fan of 24 to imagine what an exception might look like.

In a ticking time bomb scenario, I support taking whatever measures necessary to save American lives. However, if such measures violate the Constitution, it would make bringing the people to justice a real bitch.

eaglescout1998 on March 6, 2009 at 6:46 PM

Bunk him in the WH w/ the mother-in-law.

BHO Jonestown on March 6, 2009 at 6:52 PM

BHO Jonestown on March 6, 2009 at 6:52 PM

That’d be considered torture, even by Obama.

coldwarrior on March 6, 2009 at 6:55 PM

“The Bush administration got this one wrong. Capturing terrorists on foreign battlefields does not require the military to act like a local police department, but American residents arrested by the police or FBI should have the same constitutional protections as everyone else here. The Bush administration rationale that AQ sleepers constitute an invading army opens the door wide to potential abuse of arrest and detention powers in the executive branch.”

The only thing wrong with Bush 43’s November 13, 2001 military order is he left out U.S. citizens who acted on behalf of the enemy during war. FDR and the Supreme Court did not get it wrong in 1942. In fact, we hung an American citizen and 5 others. The enemy then and the enemy now made America a battlefield and we, the body politic, remain in denial.

Want more denial? Read the D.C. Circuit 3-judge panel’s decision today. (You can download a pdf of the 18-page decision at this SCOTUS blog report.) Take special note of page 15 where they suggest District Courts can fashion solution similar to the Classified Information Procedures Act.

Congress should end this madness and suspend the writ during war but they will not. We are on the road to national suicide.

Sergeant Tim on March 6, 2009 at 7:07 PM

Are we sure the Bush Administration got this wrong?

The Supreme Court also threw out, as moot, the federal appeals court ruling al-Marri was challenging that affirmed the president’s power to detain people in the United States without trial. Al-Marri and civil liberties groups had asked the court not to leave the appeals court ruling in place in the event it dismissed al-Marri’s appeal.

Why wouldn’t the Supremes want to make sure that habeas corpus is assured?

Could it be that they are afraid of overturning ex parte Quirin:

Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Quirin addresses the citizenship status of said spy:

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because [sic] in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid,…

While I think that habeas corpus should have been applied in this case, the Court has deliberately turned away from stating so. Again, why?

unclesmrgol on March 6, 2009 at 7:27 PM

The only thing wrong with Bush 43’s November 13, 2001 military order is he left out U.S. citizens who acted on behalf of the enemy during war. FDR and the Supreme Court did not get it wrong in 1942.

Yes we did get it wrong in 1942 with Executive Order 9066, and with the three resulting lawsuits which reached the Supreme Court. It’s one thing to identify and detain individuals who are suspected of wrongdoing, and another thing entirely to detain a class of people based on their ethnicity. Harry Sumida did not warrant internment:

During the Spanish American War, Issei were among the 268 men killed aboard the U.S.S. Maine. Nisei Nobutero Harry Sumida also served. As one of the first Japanese Americans born in the United States , Nobutero enlisted in the U.S. Navy in 1891 and was assigned to the U.S.S. Indiana as a gunner. He was honorably discharged after sustaining shrapnel wounds in Cuba . At the age of 72 and a veteran of war, Nobutero was taken to Manzanar concentration camp in 1942 because he was Japanese American.

unclesmrgol on March 6, 2009 at 7:45 PM

Yes we did get it wrong in 1942 with Executive Order 9066, and with the three resulting lawsuits which reached the Supreme Court. It’s one thing to identify and detain individuals who are suspected of wrongdoing, and another thing entirely to detain a class of people based on their ethnicity. Harry Sumida did not warrant internment:
unclesmrgol on March 6, 2009 at 7:45 PM

You are comparing apples to oranges as al-Marri was detained for cause, not his ethinicity.

Sergeant Tim on March 6, 2009 at 8:26 PM

Not sure I agree on this one. Imagine catching a German agent living in New Jersey during WWII. Would the military really have to try him in court to establish his guilt? I think not.

Unless I’ve got this wrong, the Bush admin approached terrorists as though we were in a real, declared war (which we are) and terrorists, even sleepers living here in the US, are real, hostile combatants (which they are.) So long as these things are true, the administration is correct to treat captured sleeper agents as spies serving a foreign government with which we’re at war; or else they should treat them as pirates captured in American waters.

Somebody explain to me where I’ve got this wrong.

philwynk on March 6, 2009 at 8:42 PM

Somebody explain to me where I’ve got this wrong.

philwynk on March 6, 2009 at 8:42 PM

You haven’t got it wrong. But the gods of political correctness have decreed that Wrong is Right which is the title of a Sean Connery flick worth watching.

platypus on March 6, 2009 at 9:49 PM

Somebody explain to me where I’ve got this wrong.

philwynk on March 6, 2009 at 8:42 PM

As the commenter before me mentioned you did not get it wrong. The Quirin tribunals were closed, for the most part, to the public. Yet including the editor of the NY Times, the press was allowed to attend yet their reporting had to be approved prior to release and both they and the defendants were not allowed to hear or view classified evidence (their lawyers were cleared for it and advocated on their behalf). Most of the 1,100 military tribunals tooks place after WWII and, perhaps surprisingly, they achieved an 89% conviction rate compared to the 93% federal court’s rate for all prosecutions during that same time period. The difference now is too many here foolishly place the outcome of elections over their family’s safety and our nation’s survival.

The rhetoric about “core values” and arguments about “potential abuse” don’t wash out true; while mistakes were made, the intent was never abuse of power and Congressional oversight was always in place. Bush 43 made sure Congress was briefed and if you go read your history you will find a Democrat Party controlled Congress had a hard time prying anything out of FDR.

Sergeant Tim on March 6, 2009 at 10:14 PM

It is difficult to maintain security in a free country, but holding people captured within the US of A without charges and trial is wrong. Capturing unlawful combatants on the battlefield increases the confusion, but if i understand the law correctly not being given the Miranda warning, just makes anything you say between being detained and receiving the Miranda warning inadmissible.
.
Abuse of al-Qaeda terrorists today, just opens the door for the abuses of others tomorrow. Good solutions are few and far between, but we must find them, or we will become what we are fighting.

darktood on March 7, 2009 at 5:46 AM

we must find them, or we will become what we are fighting

Until you find these mythical mystical strategeries and explain them to us, we should continue to violate the terrorist’s constitutional rights because technically they don’t have any. In plain language there simply is a difference between a citizen criminal and an enemy combatant (no matter where they are). Even if they are the same person. The judicial branch has jurisdiction over the citizen criminal and the executive branch has juridicition over the enemy combatant. If they are the same person, inside the USA, we can all disagree about which branch should take precedence. When I say “executive branch” you say “abuse of power” and I say “foolish voters”.

When you say “judicial branch” I say “vulnerability” and if that results in a bunch of dead Americans then the elected branches will suffer at the ballot box until that changes.

To the executive branch where it logically belongs.

boris on March 7, 2009 at 10:34 AM

Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable — combat occurred wholly on U.S. territory and enemy soldiers were American citizens.

That is from John Yoo’s article in the WSJ today.

boris on March 7, 2009 at 10:40 AM

There is something wrong with that link, try this one.

boris on March 7, 2009 at 10:43 AM

As the minister in A Clockwork Orange said:

“The Government can’t be concerned any longer with outmoded penological theories. Soon we may be needing all our prison space for political offenders.”

Dr. ZhivBlago on March 7, 2009 at 2:30 PM

darktood on March 7, 2009 at 5:46 AM

Show me where in the Constitution foreign enemies are afforded Bill of Rights protections. Answer: you can’t show me for it is not there.

Why do you think al Qaeda’s lawyers want their clients brought into federal court? Answer: so their clients can be afforded protections not granted to them in our Constitution or provided to them in either the 2006 Military Commissions Act or Boumedience v Bush decision. In addition, in federal court, they would have discovery rights at trial.

Obviously, you think your family’s safety and the safety of our troops on the battlefield should take a back seat to the enemy’s “rights.”

Sergeant Tim on March 7, 2009 at 3:49 PM