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One of many suspects arrested shortly after the attacks of September 11, 2001, Ali al-Marri, a legal resident of the United States who is from Qatar, was originally charged with credit card fraud. However, just before his case was to be heard in 2003, the Bush Administration declared al-Marri an enemy combatant and moved him to a Navy brig near Charleston, South Carolina.
Writing in The Post and Courier, Tony Bartelme informs us:
On Thursday, al-Marri’s defense lawyers said they were able to send al-Marri’s family a photo of him, the first since the Bush administration classified him as an enemy combatant.
The photo, taken in January by the International Committee of the Red Cross, shows him with a thick beard and wearing a traditional Arab headdress.
Bartelme goes on to inform us that al-Marri’s family was thrilled to receive the photo and that his eight year old son has never seen his father.
In an editorial, today’s New York Times praises the Obama Administration for its move last week to file new criminal charges against al-Marri, noting that this is "an important step toward bringing the government’s terrorism-fighting efforts within the rule of law."
The editorial goes on to disagree with Obama’s move to dismiss an upcoming Supreme Court hearing on al-Marri’s detention without charges under the Bush Adminstration:
In their conference on Friday, the Supreme Court will consider the Obama administration’s request that the court dismiss as moot Mr. Marri’s pending challenge to the government’s power to hold him without charges or trial. The justices should decline.
Welcome though it is, the new administration’s move stops short of actually repudiating the frightening legal claim advanced by the Bush regime to justify holding Mr. Marri — that the president has the power to order the military to seize legal residents or American citizens and detain them indefinitely.
The editorial then goes on to provide a bit more leeway to the Obama Administration than it seems to have earned on this issue:
We do not expect Mr. Obama will follow Mr. Bush’s dismal lead in fashioning an ultra-imperial presidency.
Although the Obama Administration has taken the positive step of filing criminal charges so that al-Marri’s case will be heard in a civilian court (as should have happened in 2003), Obama is not just failing to renounce "its claimed power to engage in this unconstitutional conduct" as the New York Times suggests he should, but in fact, Obama has an Attorney General and has nominated as Solicitor General individuals who both endorse the policy of declaring citizens or legal residents enemy combatants and holding them indefinitely without charges. As the Los Angeles Times noted:
Harvard Law Dean Elena Kagan, President Obama’s choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.
She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.
This isn’t just a failure to renounce a policy of suspending habeas corpus, it is actively endorsing such a suspension. Through that endorsement, Obama moves just one step closer to fully embracing the "ultra-imperial presidency" established by George W. Bush.
28 Comments
DIGG IS OPEN …(and recommended)
This case is more important to us all than most people seem to realize.
Thanks, Jim.
Thanks. And I’m not saying that al-Marri should just be turned loose. Any legitimate charges against him should be heard in a criminal court.
I think we here at the lake all agree on that, Jim. It is that he was arrested, not charged, not tried, held for years without a hearing or family contact.
In Marcy’s 03/03/09 diary, ‘Correcting the Confused al Haramain Reporting’, the attorney, Belew, gave me some very sound advice which could happen to American citizens:
All of belewlaw’s comments on this diary are very sound and worthy of note.
I’m not so sure that all these people should NOT be released unconditionally.
Can we sincerely believe that ANY form of due process can, at this late date, lead to a just outcome in any of these cases? after so many abuses, so many lies? after torture and kangaroo courts? Might it not be better to start over? to release these people and then arrest and try them properly when and if they go on to commit crimes?
The grave injustice of holding these people as they have been held disfigures our system of justice and, as you point out, endangers the liberties of us all. But it also undermines the very concept of legal guilt, turns it into parody. The post-9/11 national security state is a cancer on the legal system, festering away and rotting it from within. Everything that follows from it is now tainted. The cycles of investigation, trial, sentencing, appeal, and review that normally safeguard due process now string things out for still more years, delaying justice, spreading the infection, and magnifying the injury. We need to cut this thing out of the body politic as fast as we can.
We need to cut our losses. We need to accept what has happened for the irrecoverable travesty that it is. No justice can now come of any charge laid against these men. We need to move on, focusing exclusively on those we CAN bring to justice–the incompetents and traitors that made such a mess of things in their unbridled pursuit of political power.
A powerful summation, robspierre.
Seems to me the reason these persons cannot be granted their freedom is because our powers that be cannot figure out what to do with them. With the exception of a very few, other countries will not take them.
Some are totally mentally broken now; what do we do with them?
The thought of freeing them in the US could possibly mean their death sentence whether or not they should in future commit crimes. Can those responsible for their unwarranted capture, detainment and abusive treatment for years afford to risk possible retaliation?
True justice would be to indict, try, and, if found guilty, punish those who perpetrated these crimes against those detainees who were wrongly captured. Yes, I mean those depicted in the last phrase of your comment.
The Bush administration said that Al Qaeda prisoners were not entitled to be classified as POWs but isn’t Kagan saying the opposite? Isn’t the Obama administration doing what we did to Nazi’s in WWII? We held them without charges until the conflict was over. The big question I have is can we do this in a never-ending war against terrorism? Wouldn’t we have to have an end point? Surely we can’t hold these people forever without charging them and surely we won’t hold them without giving them some opportunity to challenge that they may be innocent? I’m not sure where I am on this case so I look forward to seeing the discussion. Thanks for posting this Jim.
I think you said it yourself in your comment. If we are holding them until the end of the conflict, then in an endless struggle against terrorism it becomes permanent detention.
Also, there is the distinction regarding where the detainees are captured. Capture on an active battlefield clearly puts them into regular, Geneva Convention-described POW status. It is for people like al-Marri, who are arrested here and apparently not at the time actively carrying out an act of terrorism that they enter the slippery slope. It’s almost as though thought crimes are getting people declared enemy combatants.
By giving them a hearing in a criminal court, they can be found guilty and imprisoned if there is sufficient evidence to convince a jury. If there is not, I just don’t see how their detention can be justified. That is the general risk of a free society: we choose to put ourselves somewhat at risk by only imprisoning those whom we can convict in a court of law or detain while in an act of war on a battlefield.
I was posting my last comment while you were posting this one. LOL
I agree that far too many people are arguing to hold these people for thought crimes. I remember when Chris Matthews endlessly talked about what are we going to do with these dangerous people that we can’t convict when we know that they are dangerous. I couldn’t believe that he was actually saying that. If you can’t convict them for whatever reason you have to let them go. If they are so dangerous use all the legally available tools to monitor them but you can’t hold them for what they might do. That’s just crazy.
I read your post again and I think I’m confusing two sets of facts. In the case of a legal resident I most certainly do not agree that the president can declare them an enemy combatant and throw them in prison without trial, etc. In the case of non-resident Al Qaeda members being captured I have some questions about how they should be treated. I actually look upon our war against terrorists as not a war. I think that this should be a law enforcement effort not a military effort but evidently that’s not what’s happening. So if they are going to treat this as a war then prisoners in that war should be treated as POW’s and given all of those rights. Am I making any sense? Sorry I didn’t get much sleep last night and I seem to be rambling.
Hey Jim. Did you see the editorial in the Washington Post today about this case?
I’m not a lawyer but someone posted this in the comments:
Any thoughts? My immediate reaction is that this is a bad idea only because Fred Hiatt’s editorial page suggested it. LOL
Interesting. I’m off to the feed store but will take a look a bit later.
Okay, now I see that the WaPo editorial is saying the way to close the rabbit hole is to vacate the earlier district court opinion. Perhaps that is the best way forward if the “controversy” argument has a chance of getting the case tossed. I’ll leave that to the legal folks, but I stand by my statement that whatever we do, we need to erect a legal barrier to future presidents doing what Bush did in this case.
The WaPo editorial also links to the charges against al-Marri. If anyone has read them yet, I’d love to hear an assessment of how much evidence they have that he was a sleeper agent.
The Supreme Court has a constitutional requirement to find an actual “case or controversy” for the courts to have jurisdiction to hear the case.
I fear they’re hiding behind that, though, in order not to decide the significantly thornier question: whether the president has the power to detain indefinitely without trial someone legally in the United States and entitled to the protection of its laws. Can the president infinitely defer a decision on that momentous question merely by shifting his prisoners from one jail to another – or claiming that all evidence necessary to decide it is too secret for a court to hear? We’re all down the rabbit hole now.
If Obama doesn’t claim the right of infinite detention and doesn’t attempt it, doesn’t it seems more like we’re emerging from the rabbit hole?
We need to close that rabbit hole behind us. A Supreme Court ruling could do just that. We can’t leave the hole open for future less honorable administrations.
Jim. we can’t close every hole. There are some pretty good reasons why the SC shouldn’t rule on everything unless it is presented to it.
As much as this hole needs to be doubly cemented, do you really want the Obama administration being made to defend this ball of barn droppings?
No, I want them to positively proclaim it to be the crap that it is. I’m sick of them defending the Bush position on so many issues; to move our country back into the civilized world they need to take positive action against all the illegal actions of the Bush regime.
Jim, we agree on that.
But the only way it goes to the Court is if Obama’s JOD DOES defend the Bush position.
Moving al-Marri’s custody is an effective repudiation,even if not as conclusive to the claim as might be desired.
Perhaps the administration will issue some public statements that will encourage you.
Presumably, the S.Ct. fudged on that question, punting it first to the District Court to hear argument – whenever the trial comes up. Of course, any decision on those points would be appealed to the Court of Appeals and the S.Ct., with possibly interim stops back at the District Court level.
This all seems a game of political hot potato. Anyone holding onto it long enough gets burned beyond recognition. Has anyone thought of wearing gloves?
Anyone recognize that the Obama Admin stance(and that reflects him) is also a violation of International Law?
Okay, it looks like what WaPo was advocating just happened. The lower court ruling has been vacated. Christy writes:
That’s not a bad outcome, in my opinion.
I was immediately struck by the picture. If you’ve ever been to the Middle East (outside of Israel), you know the importance of the headdress. Yasir Arafat made the black patterned Keffiya a symbol of Palestinian solidarity. It is loaded with symbolism that escapes the eyes of most Americans. I’ve been in Palestine, Turkey, and Iran, so I have seen a variety, and how they differ from one region to another, and I have 3-4 of them myself.
For a primer, start with the wikipedia article on Keffiyah, which is what Al-Mari is wearing in this photo. The kind he’s wearing (red pattern on white background) is most often identified with Jordan. The plain white keffiyah is the most popular in the Gulf States, according to the wiki article, so as a Qatari, he ought to be wearing a white keffiyah.
In the picture, Al-Mari is not wearing a headband such as an agal, but he is wearing a white skull cap (taqiyah) underneath his keffiyah. The wiki article on the taqiyah explains,
Bob in HI
This is not related to the above case but thought everyone would want to see it.
Obama Administration Defends Yoo, Torture Memo
By Karen Gullo
P
“The allegation is that Professor Yoo knew what the law was, knew that he was not following the law, knew he was not following constitutional precedent, and intentionally gave incorrect information to give cover for illegal activity,” White said at a hearing today in San Francisco.
White took Yoo’s request to dismiss the case under submission.
“White took Yoo’s request to dismiss the case under
submissionsuspicion.” There. Fixed.Bob in HI
It might be worthwhile to mention that the suit was brought on behalf of Jose Padilla
Bob in HI thanks for posting this interesting bit of information. I was totally unfamiliar with the different Keffiyah. Do you have any theory why he is wearing one that is usually worn by Jordanians? One possibility would be that it’s a signal about torture. Perhaps he is letting the world know that whatever he says is due to what the Jordanians made him say? Maybe it’s more simple…maybe this was the only Keffiyah available to him.
“… Justice Department attorney Mary Mason said the allegations against Yoo, now a professor at the University of California-Berkeley, don’t meet the legal threshold for holding a federal employee personally liable, drawing surprise from U.S. District Judge Jeffrey White.”
“The allegation is that Professor Yoo knew what the law was, knew that he was not following the law, knew he was not following constitutional precedent, and intentionally gave incorrect information to give cover for illegal activity,” White said at a hearing today in San Francisco.”
I’m confused (non lawyer). How could an attorney general NOT be personally liable for not following the law? Isn’t this a triple play of negligence on the part of the accused lawyer/AG/fed employee -all positions requiring an oath to uphold the laws of the land?
Does this force the administration to prove that Yoo was a stupid tool removed from all liability due to acting as an agent of a superior thus placing responsibility on the shoulders of said superior?
And are those issues not above and separate from any other party (Padilla) concerns making Mr. Padilla an exhibit of sorts?
Please teach.