Reckless slide repudiated

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In Ali Al-Marri v. Commander S.L. Wright (June 11, 2007), the U.S. 4th Circuit Court of Appeals rebuked President Bush’s frightening claim that the Constitution crowned him with power to pluck every American citizen from his home for indefinite detention without trial on suspicion of preparing for acts of international terrorism. Thereby hangs a tale about the nation’s reckless slide towards despotism since September 11, 2001.

As a callow youth, I read with antipathy about King John’s dungeons, King Louis XVI’s Bastille, and Josef Stalin’s gulags. Unchecked executive power to detain, I was taught, was the very definition of tyranny that had been repudiated by the Founding Fathers.

That repudiation had been celebrated by the United States Supreme Court in Ex parte Milligan (1866). In that case, Lamdan Milligan, an Indiana civilian during the Civil War, had allegedly communicated with the enemy, conspired to seize munitions of war, and joined and aided a secret enemy organization for the purpose of overthrowing the government and duly constituted authorities of the United States. The court acknowledged that Milligan had committed a grievous crime during wartime within a theater of military operations that had been and was constantly threatened with invasion by the Confederacy. But it insisted he be treated as a civilian under the laws and usages of war subject to customary protections against executive abuses enshrined in the Constitution. Military justice combines judge, jury and prosecutor, an invitation to injustice.

After September 11, President Bush undertook an alarming quest for despotic power. He inflated the conflict with global terrorism into a “war” without end; and, likened the danger of al Qaeda to the Third Reich or Japan after Pearl Harbor or the Soviet Union’s Red Army and atomic weaponry during the Cold War. Al Qaeda and sister terrorist organizations are abominations, but they do not threaten an invasion, occupation or overthrow of the government of the United States, all typical earmarks of war.

Timothy McVeigh perpetrated a terrorist bombing, but his hideous crime neither occasioned nor would have justified a presidential declaration of war against domestic terrorists and subjecting suspects to military jurisdiction. Ditto for the 1993 World Trade Center bombings. Both incidents were tried and punished in civilian courts. President Bush spuriously maintained that opposing international terrorists constituted warfare to justify usurpations.

He asserted power to detain indefinitely without trial as unlawful enemy combatants any citizen or permanent resident alien he alone suspected of acts in preparation of international terrorism. This awesome power was claimed despite the availability of deportation or the criminal law to prevent and to punish such deviltry. The Al-Marri case is emblematic.

A citizen of Qatar, Al-Marri was a resident of the United States pursuing a master’s degree at Bradley University in Peoria, Ill., when he was arrested in 2001 as a material witness in the government’s investigation of September 11. He was then twice indicted for false statements to the FBI and several counts of financial fraud. Less than one month before his scheduled trial in 2003, the government move to dismiss the indictment based on President Bush’s order determining that Al-Marri was an enemy combatant subject to indefinite detention by the defense secretary. The order determined that Al-Marri was closely related to al Qaeda, and had engaged in hostile acts against the United States, “including conduct in preparation for acts of international terrorism.”

A corroborating declaration submitted by the director of the Joint Intelligence Task Force for Combating Terrorism claimed that Al-Marri had volunteered for a martyr mission for al Qaeda and had been ordered before September 11 to enter the United States as a “sleeper” agent to wreak havoc.

The president bypassed section 412 of the Patriot Act to eliminate Al-Marri’s alleged terrorist threat. It provides a specific method for the government to detain aliens affiliated with terrorist organizations who are believed likely to engage in terrorist activity. Such aliens may be detained for seven days at the demand of the attorney general, after which deportation or criminal proceedings must commence. The seven-day detention period can be extended for periods up to six months if deportation proves impossible and the detainee’s release would threaten the national security of the United States.

In a criminal proceeding, Al-Marri would have enjoyed procedural protections necessary to preventing abuses or wrongful verdicts, for example, an independent magistrate, trial by jury, a right to confront accusers, and, a right to counsel. But as an accused enemy combatant for four years, Al-Marri was denied the bare necessities of due process, including access to counsel for 16 months, and a right to a hearing before an independent judge.

The 4th Circuit correctly held that neither Al-Marri nor any American citizen can be swept into military jurisdiction for acts not committed on the battlefield and not on behalf of an enemy nation. Judge Diane Gribbon Motz concluded: “To sanction such presidential authority to order the military to seize and indefinitely detain civilians… would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution.”

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He is also chairman of the American Freedom Agenda, an organization devoted to restoring checks and balances and protections against government abuses.

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