FEIN: Judicial disaster

• Article
• Comments ()
• Click-2-Listen
• Videos

By

COMMENTARY:

World War I had its Debs v. United States (1919) authorizing the imprisonment of Socialist Eugene Debs for peaceful opposition to the draft. World War II had its Hirabiyashi v. United States and Korematsu v. United States (1943) sustaining race-based concentration camps for 120,000 loyal Japanese Americans. And Sept. 11, 2001, now has its Al-Marri v. Pucciarelli (July 15, 2008).

That fractured decision of the United States 4th Circuit Court of Appeals endorsed a permanent state of war everywhere in the United States against all persons or organizations the president decrees is connected to al Qaeda or Taliban; and, as a war corollary, the president's authority to detain American citizens who have never engaged in hostilities against the United States indefinitely without accusation or charge as "enemy combatants" in lieu of a criminal prosecution where a defense could be mounted. Equally alarming, the court of appeals recognized a plenary power in Congress to resort to war measures against organizations or persons no matter how diminutive their threat to Americans or the national security.

James Madison, father of the Constitution, warned that, "No nation can preserve its freedom in the midst of continual warfare." Alex de Tocqueville echoed: "No protracted war can fail to endanger the freedom of a democratic society." If the United States Supreme Court neglects to reverse Al-Marri, the case will stand as a judicial sacrilege not only to the Constitution's understanding of "war," but also to twin truths of the Declaration of Independence: that all men are born with unalienable rights to life, liberty, and the pursuit of happiness that do not depend on the sufferance of the president; and, that legitimate governments are established to secure those rights, not to build empires or to go "abroad in search of monsters to destroy," in the words of President John Quincy Adams.

No single opinion commanded a majority of the 4th Circuit in Al-Marri. But the most meticulous and worthy of examination in justifying the detention of citizens or resident aliens as "enemy combatants" for life without accusation or charge was authored by Circuit Judge J. Harvey Wilkinson. I am both a personal friend and admirer, and thus express my acute disagreement with great reluctance.

Ali Saleh Kahlah Al-Marri, a citizen of Qatar, entered the United States lawfully with his wife and children on the day before Sept. 11, 2001, to pursue a master's degree at Bradley University in Peoria, Ill., where he had obtained a master's degree a decade earlier. Three months later, he was arrested by FBI agents as a material witness in its investigation of the terrorist abominations, and then indicted for financial and ID fraud. As the trial neared, President Bush unilaterally declared Al-Marri an enemy combatant closely associated with al Qaeda who had prepared for acts of international terrorism. He ordered him into permanent military custody, i.e., until the risk of international terrorism is zero or for life, whichever comes first. Al-Marri has never taken up arms against the United States.

The government could have criminally prosecuted him in a federal civilian court with all the trappings of due process that earmark civilized societies. According to a declaration of Jeffrey N. Rapp, director of the Joint Task Force for Combating Terrorism, Al-Marri had trained at an al Qaeda terrorist training camp in Afghanistan between 1996 and 1998; and, had conspired to facilitate terrorist activities in the United States. The alleged training would have violated the criminal prohibition on material support for a foreign terrorist organization. That prohibition was used, among others, in the successful prosecutions of "American Taliban" John Walker Lindh and erstwhile enemy combatant Jose Padilla.

Michael Chertoff, secretary of the Department of Homeland Security, has testified to the Senate Judiciary Committee that the Classified Information Procedures Act of 1980 enables the prosecution of terrorist-linked offenses without disclosing intelligence sources or methods.

A national security need to detain United States citizens or resident aliens permanently as enemy combatants without accusation or trial has been discredited by experience. Only three have been so designated and detained during the seven years that have elapsed since Sept. 11. One, Yasser Hamdi, was deported to Saudi Arabia where he remains free. Padilla's enemy combatant status was superseded by a criminal prosecution in federal district court. And Al-Marri was the third. An authority that has been virtually dormant for seven years, has never been exerted against a person who has engaged in hostilities against the United States, and is duplicative of criminal justice is demonstrably superfluous to defeating international terrorism.

Judge Wilkinson errantly saluted the president's detention of citizens for life as enemy combatants as a power "that the political branches deem essential to success in the struggle against those who launched and prepare again to launch attacks against America." That misplaced salute stemmed from the same unthinking fright that occasioned the disgraceful Hirabiyahsi and Korematsu precedents.

Judge Wilkinson concluded that Congress is entitled to authorize military force and military law against persons associated with international terrorists forever and everywhere in the United States. He reasons: "The sources of this nation's vulnerability - its long borders, its multiple points of entry, its densely packed cities, the dispersal of lethal materials, the march of advancing technologies, and the widening distribution of knowledge as to the means and implementation of mass destruction - long predated Sept. 11 and will long continue even as the events of that day recede in memory."

Congress, however, has neither made fact-substantiated statutory findings nor issued committee reports as to the number of al Qaeda adherents at home or abroad, their means of finance, their access to weapons of mass destruction, their ability to repeat Sept. 11, or whether their threat to Americans is greater than would-be murderers, another Timothy McVeigh, or a second edition of the Washington Metropolitan area snipers. These remains matters of conjecture.

The thrilling and revolutionary philosophy of the United States was that freedom and due process are the rule and that government encroachments are the exception that must be justified by compelling facts. The Al-Marri decision turns that philosophy on its head.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and author of the forthcoming book "Constitutional Peril," published by Palgrave Macmillan.