While I Was Away
Jason Kuznicki on May 29th 2008
..the shredding of the Constitution continued.
Over the last few days Ed Brayton and Radley Balko have both covered a remarkable new argument justifying expanded executive power. Here’s the story:
But Ali Saleh Kahlah al-Marri is a U.S. resident being held in a South Carolina military brig; he is the only enemy combatant held on U.S. soil. That makes his case very different.
Al-Marri’s capture six years ago might be the Bush administration’s biggest domestic counterterrorism success story. Authorities say he was an al Qaeda sleeper agent living in middle America, researching poisonous gases and plotting a cyberattack.
To justify holding him, the government claimed a broad interpretation of the president’s wartime powers, one that goes beyond warrantless wiretapping or monitoring banking transactions. Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a resident and hold him in prison without charge, indefinitely…
… The full appeals court is reviewing that decision and a ruling is expected soon. During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war.
“What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?” Judge William B. Traxler asked.
“Yes, your honor,” Justice Department lawyer Gregory Garre replied.
The court seemed torn.
One judge questioned why there was such anxiety over the policy. After all, there have been no mass roundups of citizens and no indications the White House is coming for innocent Americans next.
This is the stuff of dictatorships. And yes, some evidence does suggest that massive roundups of American citizens have been contemplated.
If the evidence against al-Marri is so damning — and frankly it looks pretty awful — then let him face a trial, just like anyone else. You say he planned to kill hundreds or thousands? So did Charles Manson. So did Jeffrey Dahmer. Timothy McVeigh did worse than either of them, and even he got a trial. What is so peculiar about this case that would justify throwing away centuries of legal practice?
Balko writes,
If the president gets these powers, it’s the end, gang. The writ of habeas corpus is 400 years old. The Bush administration is, rather incredibly, arguing that the “commander in chief” power of the U.S. Constitution authorizes them to vaporize it.
I wouldn’t quite say that it was the end, if by “the end” we mean “time for a revolution.” But if they get away with this, it certainly is the end of our understanding of the United States as even a vaguely rights-respecting government. (When would I take up arms? I am unable to say. And at the same time, I recognize that my inability to do so only encourages further abuses.)
Balko again:
Keep in mind, this isn’t a question of whether such people, or whether such people as al-Marri, should be prosecuted. We’re talking about whether we should give the president the authority to arrest and detain such people—American residents (and, the Bush administration has argued, American citizens)—without giving them a trial . . . forever.
The Bush administration is claiming its wartime powers give it this broad authority. But the war the administration says we’re fighting isn’t against Iraq or Afghanistan. It isn’t a war for which there will ever be a peace accord or the signing of a treaty. It’s a war against “terrorism.” It’s a war that quite literally is never going to end. And so any “wartime” powers we grant the executive, are powers we’re granting to the executive permanently.
Filed in The Barracks, The Bench
You say he planned to kill hundreds or thousands? So did Charles Manson. So did Jeffrey Dahmer. Timothy McVeigh did worse than either of them, and even he got a trial. What is so peculiar about this case that would justify throwing away centuries of legal practice?
I reckon because he’s not an American citizen, Jason. This would make him an “illegal combatant,” even under the Geneva Conventions.
Where the intervention of the military fits in here under the Posse Comitatus Act, which largely prohibits the US military from operating on US soil, I do not know.
[Please forgive the Wiki link here, but I think it informs more than confuses.]
Some of you guys are lawyers around here, or at least have law degrees. I only play a lawyer in real life, as a headhunter for them, trying to make them a few extra bucks and me, too, by extension.
But this non-lawyer [that would be me, a voter] adores Justice Antonin Scalia’s view of the interpreting our constitution: although a defender of the separation of powers—which means the executive branch is empowered to kick ass when the legislators won’t—drew a fierce defense of civil rights for American citizens in Hamdi vs. Rumsfeld, a position that you, Dr. Kuznicki, seem to be extending here to resident aliens.
If your argument is based on an offense against the Posse Comitatus Act, I am in sympathy. But if your argument is that illegal combatants on US soil should come under the extensive constitutional protections accorded to US citizens, I cannot agree.
It is a fine and necessary tradition that spies and saboteurs are taken out and shot. Otherwise, the Geneva Conventions have no meaning. It’s all a gentlemen’s agreement, no more and no less, between professional soldiers, gentlemen, men of honor.
Spies and saboteurs are no gentlemen, and they have no honor. They have abandoned their honor by relinquishing their uniforms and hiding out behind innocent woman and children.
They have abandoned all of mankind’s decency and law. To spare them only enables more slaughter of the innocents.
Your call, Jason.
But the prosecution was arguing that U.S. citizens have no more rights than this al-Marri. Repeated from above:
“What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?” Judge William B. Traxler asked.
“Yes, your honor,” Justice Department lawyer Gregory Garre replied.
The citizenship of al-Marri is not apparently salient to the argument, according to the Justice Dept.
But also, you don’t address the concern that this “war” is potentially without end, with no official declaration and no stated achievable goals. An end to “major combat activities” has been declared, and yet we are still “at war.” Logically, then, as long as any American troops remain active within what used to be a combat zone (i.e. Afghanistan or Iraq), then we are apparently still at war, and the Constitutional protections of personal freedom are suspended.
Sure, in an actual war, spies and saboteurs should be captured, and fairly held until the end of the war. But the understanding of the Geneva Convention is of a clear enemy, with clear potential end states imagined within reasonable amounts of time.
Mr. Van Dyke:
Just to take an issue off the table, I don’t think Posse Comitatus is especially applicable here. The general principle of Posse Comitatus is that federal armed forces should not be used for domestic policing purposes. Sadly, that principle has been eviscerated also, though perhaps more so under the bogus excuse of the War on Drugs than the War on Terror. Not that the two don’t symbioticly contribute to the expansion of federal power, mind you.
No one suggests, for example, that under Posse Comitatus the Army couldn’t fight and capture uniformed invading enemy forces on U.S. soil. Thus, while it is true that using military personnel to seek and capture “suspected enemy combatants” inside U.S. territory is a heretofore unusual situation (the FBI has typically handled such arrests), I don’t see that by itself as either improper or a radically new threat to civil liberties.
As for the thread topic and as Scott noted, a government lawyer standing before a federal judge and arguing that the president’s powers extend to rounding up not merely U.S. residents but U.S. citizens is, indeed, the stuff of dictatorships. We can reasonably argue about what sorts of constitutional protections non-citizens ought to be accorded while inside U.S. territory. But when any sort of foreign threat is offered as the rationale for avoiding the otherwise well established constitutional rights of U.S. citizens, we’re back to Korematsu.
Scott and Mr. Ridgely, those are good objections, and I agree with them. I do not agree with the single statement made by Gregory Garre.
In the larger and most relevant aspect of the case against Ali Saleh Kahlah al-Marri, I’m not convinced that a resident alien should receive the protections we give our citizens. A dangerous man—a spy, a saboteur— for whom we cannot meet the extremely high burden of proof we require for a criminal conviction should not walk free unless the constitution is indeed a suicide pact.
Sorry I haven’t been keeping up on this thread, but there is something everyone on it ought to know: For purposes of constitutional interpretation, precedent has always been that legally resident aliens are “persons” as referred to in the text, together with citizens. For all those civil liberties guaranteed to “persons,” you and I are in precisely the same legal class as al-Marri.
No other textual interpretation can be supported, either, because at least some rights are reserved to “citizens,” as opposed to mere “persons,” and we therefore cannot presume that the words are synonyms.
Thank you, Jason. Only permanent legal resident aliens, I gather from the internet. Does al-Murri hold this stautus, or is he on a student visa or something less?
Moreover, the government brief argues that Congress passed a law [see below], overturning precedent. On the whole, the SC, and this one in particular, defers when the other 2 branches are in agreement.
It’ll be interesting to see how it comes out.
Pursuant to Federal Rule of Appellate Procedure and Local Rule 27(f), respondent-appellee Commander S.L. Wright respectfully moves this Court to remand this case to the district court with instructions to dismiss it for lack of subject matter jurisdiction. Respondent-appellee has conferred with counsel for petitioner-appellant, and they agree with the briefing schedule proposed below. As explained below, the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366 (see Attachment 1), which took effect on October 17, 2006, removes federal court jurisdiction over pending and future habeas corpus actions and any other actions filed by or on behalf of detained aliens determined by the United States to be enemy combatants, such as petitioner-appellant al- Marri, except as provided in Section 1005(e)(2) and (e)(3) of the Detainee Treatment Act (DTA). In plain terms, the MCA removes this Court’s jurisdiction (as well as the district court’s) over al- Marri’s habeas action. Accordingly, the Court should dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to dismiss the petition for lack of jurisdiction.