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View Full Version : The White House wins a disturbing legal victory



Tylerdurden
07-21-2008, 11:57 AM
The Bush administration has been a waging a fierce battle for the power to lock people up indefinitely simply on the president's say-so. It scored a disturbing victory last week when a federal appeals court ruled that it could continue to detain Ali al-Marri, who has been held for more than five years as an enemy combatant. The decision gives the president sweeping power to deprive anyone - citizens as well as noncitizens - of their freedom. The Supreme Court should reverse this terrible ruling.
Al-Marri, a citizen of Qatar legally residing in the United States, was initially arrested in his home in Peoria, Illinois, on ordinary criminal charges, then imprisoned by military authorities.
The government, which says he has ties to Al Qaeda, designated him an enemy combatant, even though it never alleged that he was in an army or carried arms on a battlefield. He was held on the basis of extremely thin hearsay evidence.
Last year, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, declared that the government could not hold al-Marri, or any other civilian, simply on the president's orders. If it wanted to prosecute him, the court ruled, it could do so in the civilian court system.
That was the right answer. Unfortunately, last week the full 4th Circuit reversed the decision, and with a tangle of difficult-to-decipher opinions, upheld the government's right to hold al-Marri indefinitely. The court ruled that al-Marri must be given greater rights to challenge his detention. But this part of the decision is weak, and he is unlikely to get the sort of procedural protections necessary to ensure that justice is done.

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 al-Marri is not a U.S. citizen, the court's reasoning appears to apply equally to citizens.
Equally troubling, the ruling supports President George W. Bush's ludicrous argument that when Congress authorized the use of force against those responsible for the Sept. 11 attacks, it gave the president essentially unlimited powers. If a president ever wants to round up Americans on vague charges and detain them indefinitely, this ruling gives him a dangerous green light.
Al-Marri's lawyers say they will ask the Supreme Court to review the ruling. Without doubt, it should. The case raises critically important issues for a free society, and the 4th Circuit's convoluted set of opinions is too confusing to give proper guidance to other courts, the executive branch, or the people.
The jumble reflects how badly the administration has butchered the law in this area. People accused of bad deeds should be tried in court - not in sham proceedings. They should be put in jail - not in secret detention. If they are not proved guilty, they should be set free. It is up to the Supreme Court to restore these principles of American justice.
http://www.iht.com/articles/2008/07/20/opinion/edmarri.php

Osborne Russell
07-21-2008, 09:44 PM
The court ruled that al-Marri must be given greater rights to challenge his detention. But this part of the decision is weak, and he is unlikely to get the sort of procedural protections necessary to ensure that justice is done.

As I understand it, the purpose of habeas corpus is to determine whether custody is pursuant to law. The President's will is not law, as against the liberty of any individual.


Equally troubling, the ruling supports President George W. Bush's ludicrous argument that when Congress authorized the use of force against those responsible for the Sept. 11 attacks, it gave the president essentially unlimited powers.

Technically, of course, Congress can grant no powers not already authorized by the Constitution. Congressional approval is not a constitutional amendment.

But refresh my memory -- Congress has since amended its authorization when, and how? And what did the Republicans say?

Phillip Allen
07-21-2008, 10:07 PM
As Jackson said just before he killed 4000 Indians... "you have your ruling, now enforce it!"

Osborne Russell
07-21-2008, 11:55 PM
As Jackson said just before he killed 4000 Indians... "you have your ruling, now enforce it!"

He betrayed the Constitution and his oath of office and should have been impeached, convicted, and removed from office. Yes or no?

Osborne Russell
07-21-2008, 11:59 PM
link to the decision:

http://pacer.ca4.uscourts.gov/opinion.pdf/067427A.P.pdf

It's not a case of law enforcement and the courts being unable to deal with terrorism. al-Marri was indicted, arrested and awaiting trial when the Chimp snatched him, in order to prevent him from proving he was tortured.


The Government then returned al-Marri to Peoria, and he was reindicted in the Central District of Illinois on the same seven counts,to which he again pleaded not guilty. The district court set a July 21,2003, trial date. On Friday, June 20, 2003, the court scheduled a hearing on pre-trial motions, including a motion to suppress evidence against al-Marri assertedly obtained by torture. On the following Monday, June 23, before that hearing could be held, the Government moved ex parte to dismiss the indictment based on an order signed that morning by the President.

Phillip Allen
07-22-2008, 07:36 AM
He betrayed the Constitution and his oath of office and should have been impeached, convicted, and removed from office. Yes or no?

Yes

Osborne Russell
07-22-2008, 08:56 AM
Unfortunately, impeachment, for better or worse, is a political process, not a legal one. Therefore, whether a President is impeached really has no relationship to whether he has broken any laws or met the constitutional standards for impeachment.

Sounds like a distinction without a difference to me. The constitution governs politics, at least this aspect, and it's the law. What's the diff?

Osborne Russell
07-22-2008, 09:20 AM
Yeah, but that makes just like the rest of the law. Some people are given the authority to decide whether to prosecute. If the people don't like their decisions, their remedy is to unseat them, politically.

I think what you mean is that there isn't much to flesh out what "high crimes and misdemeanors" means, which is true, but that's not necessarily a bad thing. It means there haven't been many impeachments, which means the system has been stable, at least by that measure.

As you say, it's possible to have a President who violates the constitution with open contempt, supported by a Congress who pretends not to notice. But a lot of precedents and scholarship wouldn't change that.

These people just aren't Americans, intellectually and morally. They don't want to be. They would happily violate any law you could write.

Which is why it matters less what the scholars think about Andrew Jackson or the Chimp than what the citizens think. There is no expertise to which anyone can defer the citizen's duty of judgment.

Osborne Russell
07-22-2008, 12:23 PM
Phillip, are you there? It's not a trick question.