A No-Brainer for the Supremes?

By William Fisher

In what promises to be the first major test of the Obama Administration’s new approach to the rule of law, the Supreme Court will soon hear what could be one of the most consequential cases in U.S. history. It will be asked to answer the question: Can an American president declare a legal U.S. resident an ‘enemy combatant’ and hold him indefinitely without charge or trial?

The legal U.S. resident in question is Ali Saleh Kahlah al-Marri, who has been detained in solitary confinement at a Navy brig in South Carolina since June 2003. Al-Marri is the only remaining person held in the United States as an "enemy combatant." He is being represented by lawyers from the American Civil Liberties Union (ACLU).

The case, Al-Marri v. Spagone, is a habeas corpus action, challenging al-Marri's indefinite detention. The defendant in the case is Navy Commander Daniel Spagone, who runs the Navy brig in South Carolina where Al-Marri is being held by the military.

The central pre-Supreme Court question is what position the new Obama administration will take when it files its brief, currently due on March 23.
The Supreme Court will hear oral arguments during the last week of April and is expected to hand down its ruling in June. The brief filed by the government in the lower courts during the Bush Administration defended the president’s authority to designate ‘enemy combatants’ and to detain them indefinitely.

The ACLU says that the Al-Marri case “provides the Obama administration with an early and critical opportunity to repudiate the abuses of the past eight years and restore the rule of law."

Jonathan Hafetz, ACLU’s lead attorney on the Al-Marri case, told IPS, “This is one of most extreme examples of the Bush Administration’s abuse of executive power. It is a case where President Bush sought to push the outer limits of the Constitution. It is legally and morally indefensible.”

A separate case, Al-Marri v. Gates, is contesting al-Marri's abusive treatment and conditions of confinement at the Navy brig.

Ali Saleh Kahlah al-Marri, a Qatari national, came lawfully to the United States in September 2001with his wife and five children to pursue a master's degree at Bradley University in Peoria, Illinois. He was arrested by the FBI at his home that December and subsequently indicted for credit card fraud and false identification.

Al-Marri asserted his innocence and prepared to contest the charges. But on June 23, 2003, on the eve of a hearing to suppress illegally seized evidence and less than a month before trial, President George W. Bush declared al-Marri an al Qaeda agent and designated him an "enemy combatant" in the "war on terrorism." That same day, the military took custody of al-Marri and incarcerated him in the Navy brig, where he has been detained without charge ever since.

At stake in Al-Marri v. Spagone is whether the President can order the military to seize and detain indefinitely, without charge or trial, individuals lawfully residing in the United States, including American citizens, based on government assertions that they planned to commit terrorist activities.

In 2007, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the government cannot hold individuals arrested in this country in military detention without charge.

But in July 2008, the full U.S. Court of Appeals for the Fourth Circuit ruled in a narrowly divided decision that the President had legal authority to imprison al-Marri indefinitely without charge based on the facts alleged. As one judge noted in dissent, however, to accept the government's claim of extraordinary detention power would have "disastrous consequences for the Constitution-and the country."

The ACLU says Al-Marri's detention represents “one of the gravest expansions of executive detention power since September 11.” The United States was founded on the principle that “individuals living in this country cannot be imprisoned without charge and that civilian government must remain supreme over the military. Al-Marri's detention represents a radical departure from that celebrated legal tradition—one that was never authorized by Congress and that violates the Constitution.”

According to the ACLU, documents recently obtained through a Freedom of Information Act request reveal that standard operating procedures developed for Guantánamo Bay “were secretly applied at the Navy brig in an effort to create a prison beyond the law within the United States. Today, al-Marri remains in virtual isolation at the Brig, denied even meaningful communication with his family.”

In its brief, the ACLU asks the Court to overturn a federal appeals court decision giving the president sweeping power to deprive individuals living in the United States of their most basic constitutional rights by designating them "enemy combatants." “It is clearly illegal to imprison legal residents of the United States without trial. It is also the type of false choice between our safety and our ideals that has pervaded America’s approach to fighting terrorism for the past eight years,” said the ACLU’S Hafetz. “We are confident that upon review, the Court will strike down this radical departure from our nation's most basic values and traditions.”

Former United States Attorney General Nicholas Katzenbach, former FBI Director William Sessions and numerous former generals, admirals and diplomats joined the ACLU in urging the U.S. Supreme Court to reject the president's authority to indefinitely imprison a legal resident of the U.S. without charge or trial. These and other top military and civilian leaders have filed friend-of-the-court briefs.

The former diplomats argue in their brief that, “Based on our professional experience in the diplomatic service of this country, American diplomatic credibility and effectiveness in many areas of international relations suffer from the widely shared perception that the U.S. has abandoned the rule of law. Indefinite detention without criminal charge or trial is, for most people, the essence of this abandonment.”

They add, “Accordingly, a decision upholding our government’s right to arrest and imprison anyone within its borders, without charge, will not only undercut our ability to convince dictatorial regimes to abandon similar practices, it will substantially undermine efforts to restore our international reputation and to obtain more cooperation from our allies in combating terrorism.”

The second Al-Marri case, Al-Marri v. Gates, contests al-Marri's treatment and conditions of confinement since he was declared an "enemy combatant." During the first sixteen months of his military confinement, al-Marri was held incommunicado and subjected to a range of highly coercive interrogation measures, including being held in total isolation, exposed to painful stress positions, shackled in a freezing cell for hours at a time, and threatened with violence and death.

Al-Marri is the second U.S. person to have been held as an enemy combatant within the United States. The first was José Padilla, a United States citizen. Padilla was arrested in Chicago in May 2002, and was detained as a material witness until June 2002, when President Bush designated him an illegal enemy combatant and transferred him to a military prison, arguing that he was thereby not entitled to trial in civilian courts.

Padilla was held for three-and-a-half years as an "enemy combatant" after his arrest on suspicion of plotting a radioactive "dirty bomb" attack. That charge was dropped when his case was moved to a civilian court after pressure from civil liberties groups.

In August 2007, Padilla was found guilty by a federal jury of charges that he conspired to kill people in an overseas jihad and to fund and support overseas terrorism. He was sentenced to 17 years and four months in prison.

What does the Padilla case tell us? It, and dozens of other similar cases, tells us that federal courts are more than capable of conducting trials of people accused of terrorism. It tells us that there is no need – let alone any Constitutional right of the president of the United States – to toss any U.S. citizen or lawful resident into a military prison and hold him for years without charge or trial.

And it tells us that our government needs to be a lot more careful about how our interrogators obtain “evidence” – because if it’s coerced, no court will allow it.

We can only hope the Supremes will share that view.