Yesterday, in an event most of you probably did not even notice, the United States took another step down the path to extremism and authoritarianism. Does that sound hyperbolic? Read on and let me know if you still think so when you reach the end.
In a 5-4 ruling, the 4th Circuit Court of Appeals ruled that the President of the United States has the power to order the detention in a military prison of anyone in the United States -- citizen or not-- and hold them indefinitely without charging them with a crime and without affording them the most basic Constitutional rights, such as the right to stand trial and attempt to prove their innocence. Read that again and understand the implications. All it takes is an assertion by the President that the individual arrested is an "enemy combatant." The President does not have to prove the person is an enemy combatant, at least in any conventional sense, just merely assert that he or she is an enemy combatant.
The case at hand was of a man named Ali Saleh Kahlah al-Marri, a Qatari citizen in the US legally on a student visa. Al-Marri was a computer science graduate student at Bradley University in Peoria, Illinois, where he had earned an undergraduate degree a decade earlier. He lived in Peoria with his wife and five children. On Dec. 12, 2001 he was picked up by the government and detained as a material witness before eventually being charged with credit card fraud and lying to federal agents. He vehemently denied the charges against him and was preparing to defend himself against those charges when suddenly, a month before his trial in 2003, George Bush declared him an "enemy combatant" and ordered the military to seize al-Marri from civilian officials and transfer him to a military prison in South Carolina. Al-Marri has remained in that South Carolina jail for the last 5 years with no charges brought against him and no opportunity to contest his guilt. He has been in solitary confinement and his only contact with the outside world has been with his lawyers and it was years before he was even allowed to see them.
I do not know if al-Marri was really working for a terrorist organization or not, but that is not the point (although it certainly is the point for al-Marri). The point is that on the basis of the President's say-so, this man has been locked up for 5 years with no opportunity to hear the charges against him or to legitimately contest his detention. This is not someone picked up on the battlefield in Iraq or Afghanistan, or an illegal immigrant, but a man in this country legally who was arrested at his home in Illinois. This should be troubling to every American. But what happened yesterday is even more troubling.
You see, the reason the Bush Administration sends people like al-Marri to military bases in South Carolina, is because South Carolina sits in the jurisdiction of the 4th Circuit Court of Appeals, the most pro-executive power court in the country. And the 4th Circuit Court did not disappoint the President, ruling 5-4 that the President has the power to lock up anyone, citizen or not, that he designates as an "enemy combatant".
If you think I am exaggerating, let's look at the language of the court's decision (highlighted below):
"...unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world."
al-Marri v. Pucciarelli, 2008 WL 2736787, 13 (C.A.4 2008).
"If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings 'for the duration of the relevant hostilities'."
al-Marri at 35. This means the President can designate anyone an "enemy combatant" and keep them locked up without bringing charges against them indefinitely, since the "War on Terror" is by its very definition a war without an end (it is a war on a tactic, and therefore so long as there is terrorism, there is a so-called "War on Terror").
"[T]he exigencies of the circumstances may demand that, aside from these core elements [of notice and an opportunity to be heard], enemy-combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the [g]overnment in such a proceeding." "..once the [g]overnment puts for credible evidence that the habeas petitioner meets the enemy-combatant criteria," that "the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria."
al-Marri at 42. The limited due process the court would allow for such detainees would include the allowance of hearsay evidence against them (as everyone who watches Law & Order or Perry Mason knows, hearsay is generally not admissible in a court of law in the US because the person making the statement is not available to be cross examined) and making presumptions in the government's favor that the detainee could rebut (its very difficult to rebut a presumption, which is why in our justice system one is innocent until proven guilty -- try proving to me that you don't beat your wife). This due process is, of course, much less than what the Constitution guarantees Americans and those living in our country.
"Under the current state of our precedents, 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. 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."
al-Marri at 51. This means that this decision applies even to American citizens designated as "enemy combatants" by the President. Again, limited rights to defend yourself in court, no requirement that you even be charged with a crime, and you can be held indefinitely.
Once again, it may turn out that a-Marri is actually guilty of whatever it is the President accuses him. That is only part of the point here. The bigger issue is that the 4th Circuit has laid out a very broad theory that even if judiciously applied now, may not be so judiciously applied in the future. This President or any future president may decide that someone is an "enemy combatant" based on no good evidence and indefinitely imprison them. This should be a scary proposition for everyone. There was a narrower way to decide this case and achieve the same result for true enemy combatants, but instead the Court chose to back an authoritarian approach and further trample on our Constitutionally guaranteed rights.
When you combine this decision with last week's action by Congress to allow wiretapping of phone calls of American citizens without even the warrants required by the current FISA courts (courts that have, as I understand it, only turned down 2 requests for warrants by the government in the 30 years or so they have been in existence and which allow the government to seek those warrants even after starting the wiretap -- not a very onerous standard and certainly not one that cried out for change), we now have a situation where the President can authorize a wiretap on US citizens and detain US citizens indefinitely without charges, with very little oversight by the courts or Congress. This is unprecedented and it's really hard to believe more people aren't up in arms about this. It is nothing less than the steady erosion of our Constitutional rights and about as un-American as things get.
When I was growing up as a young American Jew in the 1980s, the people of my parent's generation scolded me on my idealistic American view that what happened to my grandparents in Germany could never happen here. They warned me that Germany before World War II was the most liberal, educated and culture country in the world, and no one could have foreseen the rise of fascism or authoritarianism there. I scoffed at them and said "Not here, not in America." Now I see how it happens, and many of those same people who scolded me are fully supportive of it.
While people are distracted with American Idol or So You Think You Can Dance, our politicians are taking away our Constitutional protections. While we engage in national debates about whether a cartoon on the cover of The New Yorker magazine is offensive, no one bothers to read the articles inside that magazine warning of our government's preparations for war with Iran. While the network news debates the meaning of a candidate not wearing a flag pin, the government dances on the ashes of the constitution. While American deaths in Afghanistan reach their highest levels since the war began and the Taliban is resurgent in Afghanistan and Pakistan, our politicians cover their own tails by passing retroactive immunity for the telecom companies, which, conveniently, covers those same politicians (Democrats and Republicans alike) from ever having their own involvement in the warrantless spying scandal being revealed in open court.
You think it can't happen here in America? I say it has already begun to happen.
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UPDATE:
One of the commenters makes a good point about the posting being a bit hyperbolic, and that invoking the Nazis weakens the argument.
I never meant to intimate that the current administration is the same as the Nazis and I don't think that is the point that came through from the post. I lost many members of my family to the Nazis and don't make such comparisons lightly. I merely meant to show how easy it is for a liberal democracy to begin the slide towards authoritarianism.
Granted, the post was a bit hyperbolic in its comparisons to Germany, but sometimes you need hyperbole to get people's attention. It is indisputable though that the slow but steady erosion of liberties and Constitutional protections are setting up a situation where one day our deepest fears may become reality. If someone had told you 10 years ago that the US would be locking up legal residents indefinitely without trials, that we would be allowing our government to spy on us without warrants, that Congress would be passing laws to retroactively pardon crimes by members of the government, that we would be adopting China's old torture procedures and throwing out the Geneva convention and other international treaties (the list goes on and on), would you have believed them? So going down the slippery slope we are currently on, who can say where that will lead us in another 10 years?