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View Diary: Bush can hold US civilians indefinitely, court rules. UPDATED x2 (278 comments)

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  •  This decision is not what it seems. (10+ / 0-)

    The decision holds on two issues:

    (1)  Did the President have the authority to order the arrest and detention of a non-U.S. citizen, in the United States, on grounds that the civilian is in fact an Al Qaeda sleeper and thus qualifies as an "enemy combatant?"

    The 4th Circuit said YES, that the President has this authority under the 2001 Authorization for Use of Military Force, which granted wide latitude to pursue and prevent terrorism.

    While the Justice Department argued that the AUMF was not required - that the President has such power in his capacity as Commander in Chief of the armed forces - the 4th Circuit relied on the explicit authority granted in the AUMF and did not address the inherent authority claim.  I think the AUMF did grant this authority, as it specifically included the commitment of federal law enforcement agencies to combat terrorism within the U.S.  The Justice Department argument of inherent authority - as Commander in Chief of the armed forces - would likely not apply within the U.S., as the armed forces cannot operate as law enforcement within the U.S., under the Posse Comitatus Act.

    (2)  Has Al Marri received due process of law?

    The 4th Circuit said NO, reversing and remanding with instructions for the District Court to apply the burden of proof in Hamdi v. Rumsfeld to Al Marri's habeus corpus challenge.

    This is a bit complex but I'll try to break it down into non-lawyer language.

    Al Marri did petition for habeus corpus, and was granted a hearing to challenge his status as an "enemy combatant."  The District Court ruled that Al Marri was, in fact, an "enemy combatant."  However, the District Court relied solely on the bare declaration, by a U.S. intelligence officer, that Al Marri was an Al Qaeda operative.

    The Hamdi decision provides a two-part burden of proof for "enemy combatant" status.  The government must first provide "credible evidence" that the target is an "enemy combatant."  That may include hearsay testimony, as the Hamdi Court held that hearsay is often the only evidence available.  The burden then shifts to the target to provide "persuasive evidence" to rebut the charge that he is an "enemy combatant."

    The District Court held that the intelligence officer's declaration was sufficient "hearsay evidence."  No other evidence was provided by the government, and because Al Marri simply denied the allegation without producing "persuasive evidence," the District Court found that Al Marri was in fact an "enemy combatant."

    The 4th Circuit held that this WAS NOT due process.  Specifically, the 4th Circuit held that a bare declaration of "enemy combatant" status by a U.S. government official was not sufficient evidence under the Hamdi standard.

    The 4th Circuit reversed the District Court's finding that Al Marri was an "enemy combatant," and remanded the case for a rehearing of the habeus corpus challenge.  The 4th Circuit instructed the District Court to require either more evidence that Al Marri was an "enemy combatant," or evidence proving that the declaration was "the best evidence available," and held that Al Marri has the right to examine and challenge any evidence offered.

    If and only if the government can meet the Hamdi standard and prove that Al Marri is indeed an "enemy combatant" ...

    ... then and only then can it hold Al Marri indefinitely, as a prisoner of war.

    This decision is not what it seems.

    •  Do you intend 'prisoner of war' at the end? (0+ / 0-)

      Doesn't that phrase carry implications the government and courts want to avoid?

      You kids behave or I'm turning this universe around RIGHT NOW! - god

      by Clem Yeobright on Wed Jul 16, 2008 at 04:59:51 AM PDT

      [ Parent ]

      •  No, that's exactly what they want. (3+ / 0-)
        Recommended by:
        Andrew Lazarus, Clem Yeobright, BYw

        As a legitimate prisoner of war, Al Marri can legally be held until the end of the conflict.  And as "the global war on terror" is a war without any foreseeable end, they can hold him for the rest of his life, without ever having to prove that he is anything other than an "enemy combatant."

      •  I would have thought Bushco would avoid (1+ / 0-)
        Recommended by:
        Clem Yeobright

        "prisoner of war" like the plague, because that would mean Geneva applies, no?

        Searching for corrupt, lobbyist loving John McCain?

        by Lisa Lockwood on Wed Jul 16, 2008 at 07:22:56 AM PDT

        [ Parent ]

        •  _IF_ al-Marri is an AQ saboteur, (2+ / 0-)
          Recommended by:
          Clem Yeobright, NCrissieB

          then he is a POW, but one who has violated the laws of war. The Bush Administration has tried to muddle the idea of an unlawful combatant, but the Geneva Conventions do recognize that POWs may be declared spies or saboteurs if so found by a tribunal and could then be punished in a way not permissible for POWs who do follow the laws of war. In practice, spies are often executed.

          The reason that Bush/Cheney want to avoid this framework is it involves a tribunal, not their preferred wholesale executive declaration ('worst of the worst') nor their back-up kangaroo courts.

          •  Almost by definition.... (2+ / 0-)
            Recommended by:
            Andrew Lazarus, Clem Yeobright

            Guerilla combatants hiding among the civilian population - their own or especially the enemy's - are almost always held to be unlawful combatants and may be tried and punished as spies/saboteurs.

            However, I think Bush Co. would really rather just have the "enemy combatant" label as it stands, and hold "sleepers" indefinitely as POWs.  Yes, that means they get Geneva Convention protections, but you don't lose anything there.  A "sleeper" usually has only very limited knowledge of the cell, and any that he had is tactically irrelevant within a few days (or hours!) of his capture.  They've held this guy since 2001; anything he might have known is long past tactical or even strategic relevance.

            Assuming Al Marri is a "sleeper" - and so far the 4th Circuit says the government hasn't proven that he is - what they want is to hold him in prison for the rest of his life.

            My own preference - if I were Attorney General - would be to charge him with conspiracy and try the case in court, assuming there is indeed evidence to justify the charge.  I realize that a public trial poses problems in protecting intelligence "sources and methods" information, and obviously there would have to be some evidence kept in camera.  But that kind of trial shows two things: (1) that we respect our legal system more than we fear the criminals; and, (2) that we'll call criminals just what they are ... criminals ... not "terrorists" or "insurgents" or "operatives" or "fighters."  Just criminals.

    •  Indefinitely? (0+ / 0-)

      Didn't the Supreme Court in Hamdi expressly refrain from ruling on whether the law would at some point be violated if the war in question went on too long?

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Wed Jul 16, 2008 at 05:25:53 AM PDT

      [ Parent ]

    •  IF you don't mind, I'll copy (0+ / 0-)

      this comment into the diary. It's a good explanation of what the 4th circuit court's decision likely means, which is exactly why I posted this...
      (IANAL).

      Searching for corrupt, lobbyist loving John McCain?

      by Lisa Lockwood on Wed Jul 16, 2008 at 05:28:37 AM PDT

      [ Parent ]

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