Wednesday, February 04, 2009

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.


By William Fisher

Legal experts and human rights advocates are challenging the public to remember Guantanamo’s “child soldiers” when GITMO detainees are characterized as “the worst of the worst.”

Since the iconic detention center in Cuba opened in 2002, some 22 juveniles have been imprisoned there. And contrary to the UN’s Rights of the Child protocol, all but three have been housed with the general population, despite their being obliged to promote "the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict."

Former Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and many other senior Bush Administration officials have repeatedly described all the Guantanamo detainees as “the worst of the worst.”

Two “child soldier” cases in particular are being highlighted by human rights advocates.

Mohammed El-Gharani, a Chadian national and Saudi resident, was just 14 years old when he was seized by Pakistani forces in October 2001, in a raid on a mosque in Karachi, Pakistan, 700 miles from the battlefields of Afghanistan.

El-Gharani’s defense lawyers charge he was treated with appalling brutality. They say that, after being tortured in Pakistani custody, he was sold to U.S. forces, who flew him to a prison at Kandahar airport, where, he said, one particular soldier "would hold my penis, with scissors, and say he'd cut it off."

They claim his treatment did not improve in Guantánamo. Subjected relentlessly to racist abuse, because of the color of his skin, he was hung from his wrists on numerous occasions, and was also subjected to a regime of "enhanced" techniques to prepare him for interrogation -- including prolonged sleep deprivation, prolonged isolation and the use of painful stress positions -- that clearly constitute torture.

As a result of this and other abuse, including regular beatings by the guard force responsible for quelling even the most minor infractions of the rules, El-Gharani became deeply depressed, and tried to commit suicide on several occasions.

But last month, just days before President Barack Obama’s inauguration, a federal judge, Richard Leon, ruled that the government had not proven that el Gharani was an enemy combatant and said he must be released and sent home “forthwith”. Judge Leon said the government had relied mainly on information from two other detainees at Guantánamo Bay whose reliability and credibility was questionable. He is unlikely to be released soon, however, because it is not clear if the government of Chad will accept him.

Over the past month, federal judges in Washington have been moving ahead with case-by-case reviews of about 200 detainee legal challenges. The review by civilian courts on the U.S. mainland are happening because of a Supreme Court ruling in June 2006 which gave terror suspects the right to challenge their detention in federal court.

The administration of President George W. Bush had said that Gharani had stayed in an al-Qaeda guest house in Afghanistan, had fought in the battle of Tora Bora -- from where Osama bin Laden escaped in late 2001 -- and had served as a courier for senior al Qaeda operatives. He was also accused of being a member of a London-based al-Qaeda cell.

The other "child soldier" at Gitmo is Omar Khadr. He was taken into custody in Afghanistan at the age of fifteen, and was in the midst of his trial when President Obama’s first executive orders suspended all Military Commission proceedings for 120 days pending a case-by-case review of all GITMO cases and mandated an inter-agency task force to review the Military Commission system and alternatives for prosecutions.

Khadr was born in Toronto, and is the only citizen of a Western country currently detained by American authorities in Cuba. He was captured after a four-hour firefight in the village of Ayub Kheyl, Afghanistan, and has spent the past six years at Guantanamo. He is charged with war crimes, providing support to terrorism and throwing a grenade that killed a US soldier.

But, according to Gabor Rona, International Legal Director for Human Rights First, “The case against him was unraveling as the trial proceeded.” Unintentionally released US Military documents revealed that original reports said that Kadr was not the person who threw the grenade, and additional testimony by government witnesses has proven "unreliable.”

But Rona told us that “There was little expectation that the mere failure to prove its case would cause the prosecution much trouble. A verdict of ‘Guilty’ was almost assumed.”

He said Khadr’s case “should be dismissed in its entirety.” He points out that Khadr was 15 years old at the time he was taken into custody. “If his trial proceeds -- and no matter in what forum it proceeds -- it will be the first instance of a child soldier being prosecuted in a U.S. court for conduct in wartime. This would be contrary to international legal principles, which counsel rehabilitation and protection, rather than punishment of, child soldiers.”

He added, “The conduct with which he is charged – defending against an attack by American soldiers – is not a crime under the laws of war. Prosecution an individual for conduct that was not a legal violation at the time of its commission is, itself, a war crime in international law, as well as a violation of the U.S. Constitution.”

Canada's Prime Minister, Stephen Harper, has steadfastly refused to intervene in the Kadr case, and has declined to seek extradition to Canada while legal proceedings were on-going. However, Rona told IPS that Canada and the U.S. are now reported to be discussing Khadr’s possible repatriation to Canada. “Whether this will happen and if so, under what conditions, is uncertain,” he said.

According to recent reliable polling, 64 per cent the Canadian people have expressed the desire to have Kadr returned to Canada, and international and domestic organizations such as Amnesty International and the Canadian Bar Association have pressed the Conservative minority government to bring Kadr home.

Rona told us, “The issue of Child Soldiers is notable mainly when Western societies take umbrage about the recruitment of adolescents to fight in civil wars. The outrage curiously subsides when the child is one of our own, ‘recruited’ in this case by his father, a notorious Al-Qaeda sympathizer. Prime Minister Harper, however, appears deaf to the entreaties of UNICEF and other advocates for children.”

He added, “As Americans contemplate a decade of abuse of their Constitution and increasingly urge that Mr. Bush and his associates be held accountable for their illegal actions at home and abroad, Canadians should also hold Mr. Harper accountable for trampling on the rights of one of his fellow-citizens.”