FEIN: Criminals not warriors

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By Bruce Fein

COMMENTARY:

The U.S. Supreme Court should not indulge an Obama administration maneuver to prevent a ruling on the president's constitutional power to detain for life American citizens or permanent resident aliens as "enemy combatants" without accusation or trial.

That terrifying power, reminiscent of French King Louis XVI's execrated letters de cachet, is said to be necessary to combat international terrorism. And borrowing a page Soviet justice,"enemy combatants" are said to be too dangerous to release, but too innocent to prosecute.

If the court permits President Obama's legal dodge to succeed, it will leave undisturbed a despotic lower court decision or claimed presidential power that will hang like a sword of Damocles over the liberty of every American. The court should retain jurisdiction over the case, rebuke the president, and send a welcome message to the American people and the world that the rule of law in the United States will not be crucified on a cross of inflated fears.

Last week, imitating the Bush administration in the case of Jose Padilla, President Obama's Justice Department dropped its indefinite detention of Ali Saleh Kahlah al-Massri, a United States permanent resident, as an "enemy combatant" in a South Carolina naval brig. His challenge to the constitutionality of his detention remains pending before the Supreme Court.

No longer an enemy combatant, al-Massri is now charged with conspiracy and material assistance to a foreign terrorist organization in violation of the federal criminal code. He has been delivered into the custody of U.S. law enforcement authorities for prosecution in accord with the Bill of Rights and due process of law.

Mr. al-Massri's "enemy combatant" status rested on a sworn statement that he had personally met Osama bin Laden and Khalid Sheik Mohammed and that he was in contact with Mustafa Ahmed al-Hawasi, an alleged travel facilitator for al Qaeda, who financed his $10,000 trip to Illinois. Every one of these high-octave allegations disappeared in the criminal complaint, which suggests they were concocted or extracted by torture.

The Obama administration's shifting tactics unfolded as the Supreme Court was poised to hold unconstitutional the claim of inherent presidential authority to detain U.S. citizens or permanent residents as "enemy combatants" under the laws of war in a post-Sept. 11, 2001, environment. The high court has rejected virtually every extraordinary "war" power asserted by the president to defeat international terrorism, including military commissions, the suspension of habeas corpus, the placement of Guantanamo Bay in a legal twilight zone, and detentions based on the president's say-so alone. President Obama is hoping to avoid the court's anticipated curtailment of the president's power to detain for life without accusation or by arguing Mr. al-Massri's challenge is now moot since he has now been charged with crime, and will enjoy an opportunity to defend.

The Bush administration succeeded in a comparable dodge against Padilla, a United States citizen. He was initially detained as an "enemy combatant" based on an allegation of conspiracy to detonate a "dirty radiation bomb" on American soil. Padilla disputed the allegation. President Bush then dropped the "enemy combatant" detention in favor of a criminal prosecution for conspiring to train in a terrorist training camp and actual training. Padilla was convicted and sentenced in the ordinary criminal justice system.

The al-Massri and Padilla examples corroborate that international terrorism can be combated as crime, and that international terrorists should be afforded the same constitutional protections that were extended to domestic terrorist Timothy McVeigh.

International terrorists are not warriors implicated in war. They should not be consigned to the frail protections of the laws of war, which invite error and egregious injustice. The laws of war neglect to require independent and neutral tribunals, proof beyond a reasonable doubt, the right to cross-examine adverse witnesses, or the opportunity for the defendant to summon exculpatory witnesses.

Thus, the vast majority of "enemy combatants" who have enjoyed hearings before federal judges in habeas corpus proceedings have successfully challenged their designations by the United States military. And an impressive majority of all Guantanamo Bay detainees have been released by virtual confessions of military error.

(False accusations were rife in Afghanistan after Sept. 11 to claim handsome bounties for identifying al Qaeda members or to pursue tribal, ethnic or personal vendettas).

The political branches and the judiciary stumbled in the aftermath of Sept. 11, 2001, by rashly declaring that the hijacking abominations amounted to "war" within the meaning of the United States Constitution.

Britain experienced the London subway bombings. Spain was traumatized by the Madrid train bombings. Indonesia suffered the Bali hotel bombings. Yet none of the three placed their respective nations on a war footing, or treated the alleged culprits according to the laws of war.

An international commission of jurists recently concluded that Sept. 11 was not war; and, that treating suspected international terrorists as complicit in war had occasioned alarming civil liberties abuses: illegal spying, extraordinary rendition, torture, denial of due process of law; and the invocation of the state secrets doctrine to thwart remedies for constitutional wrongdoing.

The Supreme Court should put an end to such mischief by declaring in the al-Massri case that Sept. 11 was not war; and, that the criminal law rather than the laws of war apply to suspected international terrorists.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates Inc., and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."