Monday, March 16, 2009

LTG 03-01-09: The ex-enemy combatant

(Published in the Omaha CityWeekly during the week of 03-01-09)

When you’re in a situation that you have Federal criminal charges filed against you, and you feel like you’ve won, you know you’ve gone through the looking glass.

Last week, the Obama administration announced that Ali Saleh Kahlah al-Marri would be charged with providing material support for terrorism. If al-Marri is convicted, he would be facing a significant sentence in Federal prison.

Why is that important? Why would al-Marri be happy with this development?

Well, since 2003, al-Marri held the distinction of being the only person designated as an “enemy combatant” by the Bush administration detained on American soil. As you will recall, the Bush administration used the phrase “enemy combatant” to replace the much longer phrase “we can hold you in prison as long as we want without filing criminal charges or giving you a chance to challenge your detention in court.”

The Bush administration might have been lousy with Constitutional rights, but at least they were efficient with their language.

Keep in mind, al-Marri was a legal resident of the United States when he was taken into custody. Since 2003, a legal resident of the United States was arrested in America, held in jail in America, and according to the Bush administration, held in jail forever on nothing more than one man’s say-so.

If that doesn’t terrify you, then you aren’t paying attention. Because if the government can do that to al-Marri, there’s nothing that could stop it from doing the same to you, if it found you “dangerous” in some way. It’s straight out of the “Authoritarianism for Dummies” book.

And that’s why Obama’s decision to allow criminal charges to be filed is significant. Once criminal charges are filed, al-Marri ceases to live in this legal “enemy combatant” netherworld, and enters into the world of law. He has rights protected by the Constitution, and the opportunity for a fair trial.

You know, just that basic rule-of-law, foundation of freedom stuff that we say we’ve been fighting for. That’s all.

So this is a victory for civil libertarians and the Constitution, right? Well, as college football analyst Lee Corso might say, not so fast my friend.

See, by allowing criminal charges to be filed, al-Marri’s case now will not be heard before the Supreme Court. Any court can only hear a case where there’s an issue that needs to be resolved. In al-Marri’s case, he was asking the Court to require the government to file criminal charges so he could try his case. Now that the government has done what he asked, there’s no issue for the Court to decide. The issue is now, as the law-talking folks would say, moot.

But that also means that the Supreme Court will not get a chance to rule in al-Marri’s case as to whether the President actually has the authority to just wave a legal magic wand, declare someone an “enemy combatant,” and jail them indefinitely. And while al-Marri might be the only “enemy combatant” on American soil, there’s still plenty of them in Guantanamo Bay, Afghanistan, and other places around the world.

So, it could be that the Obama administration knew they had a loser of a case with al-Marri, and decided to give him his trial to prevent the Court from removing from the President the power to declare people “enemy combatants” – therefore preserving that power to hold all the other prisoners we have locked in our own version of the Phantom Zone.

I hope I’m being too cynical about this. Obama does seem committed to undoing the worst of the Bush administration’s power-grabs. He has announced that he is “reviewing” all of the policies currently in place. And, to his credit, he has announced that we will be closing the gulag – excuse me, the detention center – in Guantanamo Bay.

But we’re also keeping open the same kind of detention center in Afghanistan. And the Obama administration has supported the Bush administration’s expansive position that the “state secrets” doctrine can be used to prevent people alleging they were tortured by American officials from suing the government for their mistreatment. Plus, Obama has done everything he can to pour cold water on the idea of initiating criminal investigations to determine in American officials committed criminal actions with things like enhanced interrogation (torture), extraordinary rendition (kidnapping), and terrorist surveillance (spying).

Make no mistake, the Obama administration is a marked improvement from the Bush administration in terms of American dedication to the rule of law. And perhaps he is trying to be pragmatic, allowing some things he views as less important to go by the wayside to accomplish greater goals.

Maybe once the reviews are completed Obama will finish the job of restoring the rule of law to American policy. But for right now, I’d prefer change I can see to change I just have to believe in.

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