Friday, November 17, 2006

Can Even Legal Residents be Denied the Right to Trial?

The recently-passed Military Commissions Act (MCA) denies access to the courts to persons designated as alien enemy combatants. It does not distinguish between arrests in the U.S. or captures in a war zone. So can even people arrested in the U.S. be denied access to the courts? The Bush Administration has recently made its position clear by filing papers in the Fourth District Court asserting that Ali Saleh Kahlah Al-Marri, a citizen of Qatar arrested in the United States is an enemy combatant and can be held indefinitely without trial our other opportunity to challenge his detention.

The facts of the case are set forth in the South Carolina trial court case, Al-Marri v. Wright. Ali Saleh Al-Marri, a citizen of Qatar, legally entered the U.S. on September 10, 2001 to study for a master's degree in Illinois. On December 12, 2001, he was arrested as a material witness for the September 11 attacks. He was initially charged with making credit card fraud and making false statements to the FBI and to a bank. However, before his case could go to trialm the federal government dropped the charges and instead designated him as an enemy combatant and transferred him to a naval prison in South Carolina, where he was held without access to the outside world. (The Administration likes to hold its "enemy combatants" in South Carolina because all appeals there go the the Fourth Circuit Court of Appeals, which is the most exective-friendly).

Persons acting of Al-Marri's behalf filed a petition for habeas corpus. The trial-level court declined to grant a trial on the grounds that the Supreme Court case of
Hamdi v. Rumsfeld did not mandate a trial for accused enemy combatants. (I will address the validity of that interpretation below). Instead, the court found, Hamdi only requires that the government present its evidence that the detainee is an enemy combatant and that the detainee be given the opportunity to present rebuttal evidence. The government presented the declaration of an intelligence official reporting his review of intelligence documents gathered on Al-Marri. This reviews stated that Al-Marri had trained in Al Qaeda camps and received money from Al Qaeda, that he rarely attended school, that his laptop (purchased with Al Qaeda money) contained jihadist literature and extensive information on poisons, that his computer also had numerous false credit card numbers and that he had made at least some fraudulent credit card purchases, and that he had telephone and e-mail contact with Al Qaeda members. The court found this to be sufficient evidence that Al-Marri was an enemy combatant. Al-Marri declined to provide contrary evidence, saying that the burden was not on him to prove his innocence. The court therefore found that Al-Marri was an enemy combatant who could be detained indefinitely without trial.

The legal basis of the Al-Marri decision

Although some people have disingenuously asserted that this simply follows the traditional practive of denying access to the courts to enemy combatants, the trial court actually emphasized the general lack of precedent for such a case. The decision relies almost entirely on Hamdi v. Rumsfeld, but with a highly dubious interpretation of that case.

Hamdi involved a man reportedly captured as a Taliban fighter in Afghanistan who turned out to be a U.S. citizen. In a badly fratured decision, the Supreme Court upheld the government's authority to hold him on the grounds that "Because detention to preven a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of 'necessary and appropriat force,' Congress had clearly and unmistakably authorized the detention in the narrow circumstances considered here." The Supreme Court further held that Hamdi could not be held for the duration of the entire, multi-generational "War on Terror," but ony for the duration of war in Afghanistan. It emphasized that the courts had previously upheld the military detention of U.S. citizens captured on foreign battlefields in the past. Finally, in authorizing the type of procedure used in Al-Marri, the Supreme Court cited the difficulty for soldiers waging a war to testify in trials on the other side of the world. Giving the detainee the opportunity to rebut government evidence would offer adequate protection to "the errant tourist, embedded journalist, or local aid worker."

It is clear, then, that Hamdi is addressed specifically to people seized in war zones. The judge in Al-Marri brushed the distinction aside, saying that in setting forth procedures, the Supreme Court simply referred to "enemy combatants," rather than enemy combatants taken in war zones. But the Supreme Court made clear that its opinion referred only to enemy combatants captured in the Afghan war.

The judge also relied on Padilla v. Hanft, the notorious case allowing the U.S. to designated Jose Padilla an enemy combatant and hold him without trial even though he was arrested in the United States. Citation of that case can only be called disingenuous. Padilla appealed the ruling to the Supreme Court, and the government promptly revoked the enemy combatant status and charged him with criminal offenses. Even the court that allowed Padilla's unlimited detention scolded the Administration for trying to evade appeal, expecting that the ruling to be overturned. Padilla escaped being overruled only on a technicality and can hardly be considered valid law.

However, the trial court's decision was made before the MCA passed. The MCA, by denying access to the courts to any non-citizen designated an enemy combatant, apparently allows indefinite detention without charges even of people legally present in the United States.

Why not just charge Al-Marri?

As with Jose Padilla, the question with Al-Marri is, if the government has so much evidence, why not just charge him. I see two possibilities. One is that much of the evidence may be tainted, as appears to have been the case with Padilla. The government may have entered Al-Marri's laptop without a FISA warrant. Or some of the evidence against him may have been obtained by "coercive interrogation." The other possibility is that, even if the government can prove its case with untainted evidence, it can prove only that Al-Marri was a sleeper member of Al-Qaeda. It has no evidence that he committed or conspired to commit any actual act of terrorism. The most serious crime it had evidence to charge him with was credit card fraud.

Understandably, this may be frustrating for the government. It has a prisoner it believes may pose a serious threat to the public, but not proof that he has taken any overt action to threaten the public. The government nonetheless has two basic options. It can release Al-Marri but keep him under surveillance. The danger here is that Al Qaeda might assume he is under surveillance and cease communicating. But in that case he has effectively been neutralized as a threat. The other alternative is to charge him with as many counts of credit card fraud as possible and ask the judge for maximum, consecutive sentences because of the terrorist connections. After all, Al Capone was only convicted of income tax evasion.

The government has declined to take either of those actions. It has also undertaken a high-stakes gamble, dismissing all charges with prejudice (i.e., without the possiblity of being refiled). In doing so, the Administration is in effect double-daring the courts either to find that a criminal trial is required, or that the habeas-stripping provisions of the MCA are unconstitutional. "Rule against me," Bush is warning the courts, "and I will have no choice but to turn a terrorist loose on the street."



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