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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, November 14, 2006

The Military Commissions Act in action

The Bush administration's treatment of Ali Saleh Kahlah al-Marri ought to be shocking and horrifying. Instead, it is now not only depressingly familiar, but also something that is formally sanctioned by the U.S. Congress.

In 2001, al-Marri, a citizen of Qatar, was in the United States legally, on a student visa. He was a computer science graduate student at Bradley University in Peoria, Illinois, where he had earned an undergraduate degree a decade earlier. In Peoria, he lived with his wife and five children.

In December, 2001 he was detained as a "material witness" to suspected acts of terrorism and ultimately charged with various terrorism-related offenses, mostly relating to false statements the FBI claimed he made as part of its 9/11 investigation. Al-Marri vehemently denied the charges, and after lengthy pre-trial proceedings, his trial on those charges was scheduled to begin on July 21, 2003.

But his trial never took place, because in June, 2003 -- one month before the scheduled trial -- President Bush declared him to be an "enemy combatant." As a result, the Justice Department told the court it wanted to turn him over to the U.S. military, and thus asked the court to dismiss the criminal charges against him, and the court did so (the dismissal was "with prejudice," meaning he can't be tried ever again on those charges). Thus, right before his trial, the Bush administration simply removed Al-Marri from the jurisdiction of the judicial system -- based solely on the unilateral order of the President -- and thus prevented him from contesting the charges against him.

Instead, the administration immediately transferred al-Marri to a miltiary prison in South Carolina (where the administration brings its "enemy combatants" in order to ensure that the executive-power-friendly 4th Circuit Court of Appeals has jurisdiction over all such cases). Al-Marri was given the "Padilla Treatment" -- kept in solitary confinement, denied all contact with the outside world, including even his own attorneys, not charged with any crimes, and given no opportunity to prove his innocence. Instead, the Bush administration simply asserted the right to detain him indefinitely without so much as charging him with anything.

Last month, Congress endorsed this behavior and expressly vested the President with the power of indefinite, unreviewable detentions when it enacted the so-called Military Commissions Act of 2006. And the Bush administration has wasted no time relying on that statutory authority to justify the exercise of this extreme detention power. From the AP today:

In court documents filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., the Justice Department said a new anti-terrorism law being used to hold detainees in Guantanamo Bay also applies to foreigners captured and held in the United States.

Immigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts, the Bush administration said Monday, opening a new legal front in the fight over the rights of detainees.

The MCA authorizes the administration to detain any non-citizen (at least) as an enemy combatant and does not require that they be charged with any crime nor given an opportunity to prove their innocence. That includes resident aliens and foreigners who have legally entered the U.S.:

"It's pretty stunning that any alien living in the United States can be denied this right," said Jonathan Hafetz, an attorney for Al-Marri. "It means any non-citizen, and there are millions of them, can be whisked off at night and be put in detention."

This is not a case of someone being detained on a battlefield or even overseas, nor is it the case of someone who entered the country illegally. He was in the U.S. legally and was detained while sitting at home. And just as he was about to start his criminal trial, the President essentially cancelled the trial and ordered him detained indefinitely and incommunicado. As Amnesty International has said with respect to this case:

The practice of detaining people incommunicado has been condemned by human rights bodies, including the UN Special Rapporteur on Torture, as a human rights violation which can lead to other violations such as torture or ill-treatment or interrogation without due process safeguards.

Access to a lawyer is an important safeguard to ensure that detainees’ rights are protected, not only with regard to criminal or other proceedings, but also with regard to conditions of detention and a detainee’s physical and mental health. Prolonged incommunicado detention or solitary confinement can in itself be a form of cruel, inhuman or degrading treatment.

Sermons like that about the value of basic individual rights and the imperatives of due process were previously delivered by the United States. Now, they need to be delivered to us, because we seem to have rejected them.

The denial of habeas corpus rights is the most Draconian aspect of the MCA, as it authorizes detention for life with no real review and no meaningful opportunity to prove one's innocence. Sen. Chris Dodd said prior to the election that he regrets the decision not to filibuster the MCA: "I regret now that I didn't do it . . . This is a major, major blow to who we are." And Sen. Pat Leahy, soon-to-be Chairman of the Senate Judiciary Committee, has confirmed that he is "drafting a bill to undo portions of a recently passed law that prevent terrorism detainees from going to federal court to challenge the government's right to hold them indefinitely."

That has to happen. At the very least, re-establishing habeas corpus rights for detainees is an absolute imperative. We simply cannot be a country that vests in the President the power to order people imprisoned for life with no real review of the charges against them, particularly when the detainees are not detained on any battlefield, and particularly when they are detained inside the U.S.

There is no greater betrayal of the core principles of American political life than to have the federal government sweep people off the streets, throw them into a black hole with no contact with the outside world and no charges asserted of any kind, and simply keep them there for as long as the President desires -- in al-Marri's case, with respect to detention, now five years and counting.

As always, the most extraordinary and jarring aspect of cases like this one is that these principles -- which were once the undebatable, immovable bedrock of our political system -- are now openly debated and actively disputed by our own government. By itself it is astonishing -- and highly revealing about where we are as a country -- that such precepts even need to be defended at all.

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