July 22, 2008
A conservative-dominated U.S. Appeals Court has opened the door for President George W. Bush or a successor to throw American citizens – as well as non-citizens – into a legal black hole by designating them "enemy combatants," even if they have engaged in no violent act and are living on U.S. soil.
The federal Appeals Court in Richmond, Virginia, ruled 5-4 on July 15 that Bush had the right, while prosecuting the "war on terror," to hold Qatari citizen (and Peoria, Illinois, resident) Ali al-Marri indefinitely as an "enemy combatant."
But some of the court’s more liberal judges expressed alarm, saying the legal reasoning that denied al-Marri meaningful due process not only trampled on American legal traditions but could be used to lock up U.S. citizens as well.
"For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law," wrote Judge Diana Motz, a Bill Clinton appointee, who dissented against the court’s approval of sweeping presidential powers.
Motz noted that al-Marri has been imprisoned for more than five years, "without acknowledgement of the protection afforded by the Constitution, solely because the Executive believes that his indefinite military detention – or even the indefinite military detention of a similarly situated American citizen – is proper."
Al-Marri’s lawyers plan to appeal to the U.S. Supreme Court, and the case underscores one of the biggest issues at stake in the November elections: whether Republican John McCain will get to fulfill his promise to appoint more Supreme Court judges like Samuel Alito and John Roberts, who have embraced Bush’s vision of an all-powerful President.
Currently, the U.S. Supreme Court has a slim 5-4 majority in favor of limiting Bush’s authority to deny basic constitutional rights to people designated "enemy combatants," but the replacement of one member of the majority with another Alito or Roberts would tip the balance and effectively permit the rewriting of the U.S. Constitution.
Though the July 15 ruling was convoluted and did call for a federal District Court to afford al-Marri some more rights, the Appeals Court decision effectively upheld Bush’s assertion of nearly unlimited power to have people detained as "enemy combatants."
The ruling suggested that even American citizens – if they are deemed "enemy combatants" – could be subjected to Bush’s military commissions, where truncated legal rights make proving a person’s guilt much easier than in civilian courts.
Previously, the New York Times editorial page and some liberal legal experts had criticized Bush’s high-handed approach toward non-citizens, but had assured Americans that the military commissions would not apply to them.
But at Consortiumnews.com, we noted that language buried in the Military Commissions Act of 2006 seemed to cover – indeed even target – U.S. citizens. [See "Who Is 'Any Person’ in Tribunal Law? or our book, Neck Deep.]
For instance, one section dealing with penalties stated that "any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission," according to the law.
Another clause stated that "any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct." [Emphasis added]
Presumably, Osama bin Laden has no "allegiance or duty to the United States." Such a phrase seems aimed at American citizens.
But it took the Appeals Court ruling – and the blunt language from Judge Motz about denying constitutional rights to U.S. citizens – to catch the New York Times’ attention.
In a July 20 editorial, the Times wrote that the Appeals Court's "decision gives the President sweeping power to deprive anyone – citizens as well as non-citizens – of their freedom. …
"The implications are breathtaking. The designation 'enemy combatant,’ which should apply only to people captured on a battlefield, can now be applied to people detained inside the United States. Even though Mr. Marri is not an American citizen, the court’s reasoning appears to apply equally to citizens."
Bush’s victory in the Marri case reflects his continued insistence that for the duration of the "war on terror," Bush or any successor can exercise "plenary" – or unlimited – powers as the Commander in Chief.
And, since the "war on terror" will go on indefinitely and since the "battlefield" is everywhere, Bush is asserting the President’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.
In effect, Bush’s interpretation of his own powers – allowing him to imprison, torture and kill at his discretion – trumps the Founders’ vision that everyone possesses certain "unalienable rights" that a government can’t take away.
Despite some reversals in the U.S. Supreme Court – and the loss of Republican control of Congress in 2006 – Bush still sees himself as a kind of a global monarch who gets to decide which rights and freedoms his subjects anywhere in the world can enjoy and which ones will be denied them.
Al-Marri entered the United States on a legal student visa, along with his wife and children, only a day before the 9/11 attacks. He was arrested amid the panic and fear that followed the attacks, and was charged criminally in a credit-card scheme.
But the Bush administration then asserted that al-Marri was an al-Qaeda "sleeper cell" agent planning follow-up attacks, declared him an "enemy combatant," and locked him up at a Navy brig in South Carolina, where he was held incommunicado.
Eventually, al-Marri challenged his indefinite detention through a federal court suit. Bush’s lawyers countered by citing the Military Commissions Act in seeking to deny him access to civilian courts.
In an affidavit submitted to a District Court, a U.S. counter-terrorism official alleged that al-Marri had received al-Qaeda training, was prepared to engage in a suicide attack, and had met personally with Osama bin Laden and other senior terrorist leaders.
However, the original source of that evidence was kept secret, since it presumably was derived from interrogation of al-Qaeda captives, many of whom have been subjected to brutal interrogation methods.
In siding with Bush, conservative Appeals Court judges noted al-Marri had offered only a general denial of the accusations against him and failed to rebut the specific charges. Al-Marri’s lawyers argued that their client should have a right to confront his accusers and not be put in a position of having to prove his innocence.
However, the Appeals Court’s majority accepted the validity of the "sleeper cell" allegations – since al-Marri had not disproved them – and ruled that Bush did have the authority to lock al-Marri up indefinitely as an "enemy combatant."
"While I would be the first to agree that the criminal justice system retains an important place in our constitutional system when handling the terrorist threat, the notion that it is the only manner of dealing with such threats, or is constitutionally compelled in all cases involving
apprehensions on American soil, is simply wrong," wrote Judge Harvie Wilkinson, a Ronald Reagan appointee who is often cited as a possible Republican Supreme Court nominee.
Wilkinson said the government had many good reasons not to grant an accused terrorist a public trial.
"While a showcase of American values, an open and public criminal trial may also serve as a platform for suspected terrorists," Wilkinson wrote. "Terror suspects may use the bully pulpit of a criminal trial in an attempt to recruit others to their cause. Likewise, terror suspects may
take advantage of the opportunity to interact with others during trial to pass critical intelligence to their allies."
However, Motz and other more liberal judges dissented on the grounds that the Constitution spells out basic due-process rights for defendants and that denying those rights to non-citizens like al-Marri means that they would be lost to U.S. citizens as well.
"It is likely that the constitutional rights our court determines exist, or do not exist, for al-Marri will apply equally to our own citizens under like circumstances," Motz wrote. "This means simply that protections we declare to be unavailable under the Constitution to al-Marri might likewise be unavailable to American citizens, and those rights which protect him will protect us as well."
Motz’s conclusion also wasn’t simply based on her opinion. It was a little-notice argument that Bush’s lawyers made earlier in the case.
"A citizen, no less than an alien, can be an enemy combatant," administration lawyer David B. Salmons told the Appeals Court in oral arguments on Feb. 1, 2007, adding that the courts cannot interfere with the President’s wartime judgments on such matters.
Salmons insisted that Bush is not interested in using this power too broadly, but argued that the judgment on whom is deemed an "enemy combatant" must solely be at the discretion of President Bush. [NYT, Feb. 2, 2007]
What may be decided in Election 2008 is whether the U.S. Supreme Court will be stocked with like-minded legal theorists.