The al-Marri case and beyond: what do you do with a suspected terrorist? (Part II)
In the al-Marri case a Virginia federal appeals court ruled 2-1 that an alien who entered this country legally cannot be seized in the US, declared an “enemy combatant” without having been caught under battlefield conditions, and held indefinitely in military custody without being charged with a crime.
Al-Marri is the only alleged terrorist being held by the US at this point who fits this particular set of facts, and the ruling is limited to those parameters. Nevertheless, it is—as Andrew McCarthy, expert on law and terrorism (and on the history of that famous firewall) writes today in National Review Online—a troubling case of overreaching by a judiciary which manages to extend rights to a group of people (nonpermanent legal alien visitors) who never had those rights before.
This is not a case of rights previously vested being taken away, as some who cry “foul,” “police state,” (or, in the case of this commenter, “filthy neocon Reich”), allege. As McCarthy—who was the prosecuter in the first World Trade Center bombing case—knows, any such rights for temporary aliens are not Constitutional but are statutory, and Congress has passed several statutes covering that issue in order to take this out of the hands of the civilian court system. The Supreme Court has repeatedly held that the detention of combatant prisoners in times of war has been a military and not a civilian court issue.
But the civilian court in this case has ruled that al-Marri does not fit the definition of “combatant” because he was not taken on a field of war. This is, as McCarthy rightly alleges, an example of what might be called “September 10th” thinking (and in fact, the term is very appropriate, because that was the date of al-Marri’s arrival in the US).
It’s not a question of whether or not al-Marri is a member of al Qaeda; he is, and does not even allege otherwise. It is a question of whether an al Qaeda member such as al-Marri, trained as a terrorist in Afghanistan by that very group, is not to be considered a “combatant” because he wasn’t in a conventional uniform on a conventional battlefield when he was captured.
McCarthy writes:
…the court astoundingly reasoned that because al Qaeda is a sub-sovereign, transnational terror network ”” i.e., it is neither a traditional sovereign enemy like Germany during WWII, nor an extension or militia belonging to a nation-state, like the German saboteurs captured inside the U.S. during WWII ”” its operatives inside the United States must be considered civilians, not enemy combatants, at least in the absence of traditional “battlefield” conditions of capture. As civilians, the judges held, they must either be tried in the civilian courts for terrorist crimes, or be released.
That is simply a preposterous assessment of our present threat conditions, to say nothing of the law. To being with, the president’s commander-in-chief authority is premised on preserving the national security of the United States against foreign threats; it is plainly triggered when a threat is foreign; there is no requirement that the foreign threat come in the form of a nation state.
Those who those who wonder what all the fuss is about. After all, aren’t civilian criminal courts able to deal with this matter effectively? Isn’t it possible to try al-Marri in a regular court of law, present him with the charges against him, and convict him if he’s so very guilty? In other words, what’s the beef?
Just this, as McCarthy knows full well: the civilian criminal courts are set up to try ordinary criminals and their rules of discovery are extraordinarily broad and favor those criminals. “Discovery” is the process by which the defendent’s attorneys—and, therefore, the defendent—gain access to much of the information on which the case has been built. One can easily imagine what an al-Qaeda member could do with this information. This, more than anything else, is a powerful argument against using the criminal justice system for al-Marri.
McCarthy says it well:
That is, our “choice” is either to afford al-Marri—who answered directly to 9/11 mastermind Khalid Sheikh Mohammed and met personally with bin Laden—a proceeding in which he would receive lavish discovery that could be extremely helpful to the people trying to kill us, or to release him so that he could rejoin the jihad and continue trying to kill us himself.
A far more preferable alternative would have been for the court to have allowed the government to label him an “enemy combatant” and to try him in a military court. This would get around the problem of indefinite detention, a phenomenon I agree is very troubling and prone to abuse. Al-Marri would then be facing charges in the proper venue, a legal system that has been deemed good enough and fair enough even for those US citizens who are in the military. If so, it is certainly good enough and fair enough for temporary legal aliens who are members of al Qaeda.
So, what do you do with a suspected terrorist? Try him in the military courts.
[Part III—the final segment in this series—coming soon.]
There’s a huge difference between a court martial and a military tribunal.
Nice try, though.
If our laws are inadequate to dealing with modern-day terrorism, then the president should – bear with me now – work within the framework of the Constitution to implement new laws. He should not try to assume for himself the power to create new legal systems by fiat.
Same deal with FISA. The president decides that FISA is outdated and can’t be used to respond to the threats facing our country today? Fine. Then go to Congress, propose a new bill, and work to see it turned into a law. Don’t just break the law. Don’t just make up new laws and pretend they’re legal because you said so. The former is criminal. The latter is dictatorial. We have this wonderful system in place whereby laws can change as the result of a Constitutionally-defined democratic system! Use it!
Sorry, Mouse:
“In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
There are any number of people who have been convicted of crimes where the evidence against them was obtained through covert means. We’ve convicted spies, mobsters, and drug dealers that way. Our legal systems have safeguards to prevent the kind of outing that a canny defendant might threaten.
On the other hand, there is nothing that incompetence loves more than secrecy.
shelter-island.orgFor U.S. citizens, we have Constitutional rights and protections under the law. Can Hyman name the “foreign”(not U.S. born or naturalized citizen) spy tried in the justice system? For them, we have the Geneva Conventions and Executive war powers and U.S. statute; i.e. Military Commission.
http://www.shelter-island.org/german_spies.html
By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission…
Spies and saboteurs know what they’re getting into. Why do you want to protect this guy? A military commission has rules of jurisprudence to follow as well. Don’t you trust the troops you claim to ‘support’ to give a fair trial?
“Why do you want to protect this guy?”
This is an absurd strawman. No one wants to protect enemies of the United States. What people do want are a) that the determination of who is an enemy of the US be made through a legal process, not by fiat or whim; b) that actions by the government be legal according to the Constitution and that if current laws are inadequate, the government act to change those laws through the legal Constitutional process; and c) that no branch of the government or officer of the government be free of any legal restrictions on action.
That is, if this guy is an enemy, then detain him or punish him or whatever. Just do it legally. Remember things like checks and balances? Rule of law? Democracy? How did the party of small government become the party of “let the president detain, convict, imprison, and torture anyone he wants at will with no recourse via a process established by executive fiat”?
Mous: Just do it legally.
They are doing it legally. Who do you think you are, the Supreme Court?
It’s funny how the Left loves to hide behind legalities regarding detaining terrorists, but scream like weenies on a grill at the thought of actually, you know, enforcing the laws on illegal immigration. Which is it, guys?
A far more preferable alternative would have been for the court to have allowed the government to label him an “enemy combatant” and to try him in a military court. This would get around the problem of indefinite detention, a phenomenon I agree is very troubling and prone to abuse. Al-Marri would then be facing charges in the proper venue, a legal system that has been deemed good enough and fair enough even for those US citizens who are in the military. If so, it is certainly good enough and fair enough for temporary legal aliens who are members of al Qaeda.
But terrorists deserve better, Neo. The military are just myrmidons. But the terrorists are true freedom fighters!
Which is it, guys?
Simple. Whatever laws benefit the Law, gets enforced. Whatever Laws prevent the Left from exploiting people, gets canned.
A straw man, Ymar?
I don’t think anyone would complain if the people we’re holding in Guantanamo (and elsewhere) were tried in Courts Martial like U.S. military personnel are.
But, seeing as a court martial gives defendants the right to:
1. See and challenge the evidence against them.
2. Appeal a finding of guilty to…U.S. civilian appeals courts.
it really wouldn’t solve the problems the pro star chamber crowd has with trying these guys in civilian courts in the first place.
How do you solve a problem like al-Marri?
Gee, guys, were you all instructed by your talking points memos to use the phrase “straw man” as often as possible, or something? “Liberally” applied by all you lefties over the last few days, more than usual.
Speaking of which: “pro star chamber crowd”, moi?
But of course, you guys really don’t want to protect him, or anything. You’re just making sure his rights aren’t being trampled, huh? He just might have been on vacation, or something. On leave from his “higher education” to see a few relatives here in the States. You really want us to believe that, don’t you?
Under Geneva, these guys are “illegal combatants”, prue and simple, whether fighting an “insurgency”, or infiltrating to spy or commit sabotage. So now we’re choosing which international agreements to abide by, too, huh? Yep, discard that, usurp Constitutional power separations, all because of your insistence that he might be “innocent”? Because, if we don’t, then “you” could be next? You’re either stupid, or you want to protect him, just to screw Bush.
What a bunch of jerks.
Lee,
Maybe you could cite the relevant Geneva Convention number and article that talks about “illegal comabtants?”
If you are talking about Convention IV, Article 5, the accused still have to be treated humanely and given a fair and speedy trial:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
Either way, under our laws or the Geneva Conventions (which are actually part of our laws, btw), the U.S. government can’t just label someone an “illegal combatant” and throw them into a dungeon for eternity.
alf,
None of us expect you to understand, but the Geneva Convention does not apply here and the protection of any alien inside the US is strictly statutory. Simply being on US soil does not give a person any inherent constitutional protection and that applies to due process as well. The fact that it is extended at all is an operation of statute and case law.
Please don’t feel ashamed of your ignorance, however. If your higher education took place after about 1965 you have simply benefitted from “Education Lite; Better Self Image, and Zero Calories.” You really need a closer read of your “cut and paste” along with the case law.
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“It’s not a question of whether or not al-Marri is a member of al Qaeda; he is, and does not even allege otherwise.”
Neo, is “not alleging otherwise” tantamount to admission of guilty as charged?
Maybe I missed something, but I can only find that al-Marri has denied all charges, and that the only witnesses against him are other detainees.
Why do I have to name foreign spies? By the nature of espionage, people who attempt it are generally insiders, and so likely to be citizens and residents. Foreigners suspected of spying are usually attached to embassies and such, and are dealt with by being PNGed or exchanged for our own spies.
None of that matters. If the government wants to imprison someone, it must not be permitted to do so without the prisoner having recourse to defense. That’s a bedrock principle of the United States and our way of life.
“without having been caught under battlefield conditions”
Hello, isn’t the United States a battlefield in this war. What else do they need to admit that. This type of rulings will simply make the U.S. Battlefield issue more clear………steve
“Why do I have to name foreign spies?”
I did. To demonstrate the difference with which we handle our citizens involved in treason or spying, and those who are not citizens involved in spying. The former are “citizens” with Constitutional protections; the latter are “illegal combatants” and come under Geneva.
Alphie, since you typed all that above, I’ll assume you actually read it. It actually supports my argument. “..such individual person shall not be entitled to claim such rights and priveleges under the present Convention…”.
“..be regarded as having forfeited rights of communication..”.
Unless “..in case of trial,..”. So, by your own Convention quotes, we “may” choose to give him a trail, or we “may not”, depending upon “..the security of the State or Occupying Power, as the case may be.”
Don’t you get tired of shooting yourself in the foot, Alphie?
And you’ll need more than “underinflated balls” and “unscented deodorant” if you are trying to allege “mistreatment”, losers.
Lee,
I just snipped one article from the 4th Geneva Convention. There are 158 more articles to it.
Read the whole thing before claiming it backs up your Abu Ghraib/Star Chamber idea of justice.
Alphie,
I am assuming that you’re familiar, at least in passing, with the provisions of the Geneva Convention and Article 4. Given your reading on it, what is your take on the distinctions between insurgents, volunteers, and mercenaries.
I’ve been chewing through it a while, and it seems that if one grants reasonable interpretation to those three roles, then the role played by foreign jihadists in Iraq really doesn’t properly fit (or even trend) towards any one of those three categories.
It also does, I suppose beg the question of the interpretation of these strictures when very arguably those we fight aren’t represented by a contracting state.
Any thoughts?
BRD
BRD, you nor I have “read the whole thing”, apparently.
What did I just say above, Alphie? Did you read the words that refute, rather than support your own argument? The very words “you used”. It seems to me that you are the one ignorant of what Geneva says.
First off, I have to apologize. I didn’t mean Article 4 – I was thinking of Article 5 of the 4th GC.
In any case, I’ve done some research in passing on the matter a few months back, but am by no means an expert.
The things I’ve been most interested in have to do with the evolution of the Convention and the Laws of Ground Warfare. Especially with questions regarding intent, redress, retaliation and deterrence.
I had been hoping that perhaps some folks here might be familiar with the concepts in the Convention, and that – maybe – folks might have some insights (that aren’t ten pounds of partisan sniping, wrapped in a five pound sack of pseudo-legalese)
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