Here is a copy of the Fourth Circuit Appellate Court order that granted the habeas corpus petition of Ali Saleh Kahlah al-Marri proving that the concepts of due process and habeas corpus won't die easily in these United States. It's important to note that al-Marri wasn't seized on the battlefields of Iraq or Afghanistan by the US military, but from his Peoria home by civilian authorities and that he had not been charged with anything since June 2003, spending 4 years in a South Carolina military jail. He is not a US citizen, but was legally residing in the US, a citizen of our ally, Qatar.
It is also important to note that as much as the Bush-and-party-before-country right wingers try to use this case for political purposes making it sound like the court just set this guy free for no good reason, the court was clear that he need not be set free and can be "returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely." They just have to charge him of something and try him like we always used to do here in the US. He was originally charged with credit card fraud. Bush got him off on that one by calling him an enemy combatant and moving him to military custody. He was also charged with making false statements to the FBI which charge was also dismissed on motion of the feds, but now seems like a pretty good charge to prosecute with freshly minted solid precedent from the Scooter case.
Close your eyes and forget about al-Marri for a minute and imagine you were taken into custody, transferred and not allowed to communicate with your family or even an attorney for sixteen months.
You can open your eyes now and read on. (Oh, you've probably already done that by now if you are reading this.)
Anyway, the government's argument was that the Military Commissions Act of 2006 (MCA) applies to al-Marri even though it became law over 3 years after his capture and transfer. Remember that was passed in response to
Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2762-69 (2006), which held that federal courts still had jurisdiction over the pending habeas petitions of Guantanamo Bay detainees and that the
Uniform Code of Military Justice (UCMJ) and Geneva Conventions still limited the President's authority under the
2001 Authorization for Use of Military Force Pub. L. No. 107-40, 115 Stat. 224 (2001)
al-Marri contended he still has some habeas protection under the Suspension Clause of the Constitution and the government countered that the MCA afforded him an alternative remedy. The Court held that the MCA does not afford an alternative because it doesn't apply to al-Marri at all. The Court didn't parse words or make up technicalities as republicans will whine. They did what courts do when confronted with statutes that attempt to do away with long venerated common law, they strictly construed the statute. The idea of strict construction of a statute (in a nutshell) is that, if the legislature decides to do away with long time common law by statute, parties seeking whatever remedy afforded thereunder at least have to follow the terms of statute to get the remedy. The government just didn't follow its own rules in this case. Additionally, the Court also felt the government was being disingenuous in claiming it would give al-Marri a Combatant Status Review Tribunal because they hadn't done so in all the time they could have for al-Marri or any other non-Guantanamo defendants. The Court found that the government never thought CSRTs applied to cases such as al-Marri's before they decided to use it as a strategy for this particular argument in this particular case.
The Court then addressed the habeas corpus issue and found that the MCA affected only statutory habeas that applied to "aliens captured and held outside the United States" and not the constitutional "great writ" that applies to citizens and those "lawfully residing within the country with substantial, voluntary connections to the United States." This comment can be found in 152 Cong. Rec. H 7548. Ah the power of the Internet. Those pesky legislative histories with those great comments are
easier to find with the Internet now, aren't they? This comment was made by Sensenbrenner: " Mr. Speaker, I yield myself 30 seconds. Mr. Speaker, I am afraid that my friends on the other side of the aisle aren’t listening. There are two types of habeas corpus: one is the constitutional great writ. We are not talking about that here. We can’t suspend that. That is in the Constitution, and we can’t suspend that by law. The other is statutory habeas corpus, which has been redefined time and time again by the Congress. That is what we are talking about here, and we have the constitutional power to redefine it.
I yield 4 minutes to the gentleman from Iowa (Mr. KING)." Sensenbrenner was sarcastic, but it is now clear that the Democrats were listening and it was a good thing they got his denial of their suspicions on the record.
al-Marri claimed that his Fifth Amendment rights were violated in his transfer and detention. The Court agreed because the Fifth Amendment refers to "persons", not citizens, and has long been extended to "lawfully admitted aliens living within the United States." The Fifth Amendment gives people the right to due process before life, liberty or property is taken away. Due process is that right to be charged and have a public trial. Enemy combatants may be deprived of such a public trial under
Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004), but the Court determined that al-Marri is not an "enemy combatant" and assumed that the MCA was not meant to lead to the "absurd result" that just anybody (and most certainly not a US citizen) can be held as an "enemy combatant". Hamdi and Jose Padilla found different results in their cases because both served on foreign battlefields, but there were no allegations that al-Marri ever did.
The government countered that al-Marri engaged in acts of terrorist in what seems to be the global battlefield in our backyard argument. The Court rejected the argument and that is the key to this case. Bush was pushing the idea of a global war on terror on a global battlefield that includes our backyards, so he could unleash limitless power against individuals, and I'd guess even US citizens, although the Court here affords his intent more charity. (
Remember I was worried about this argument back in April 2006.) Here the Court said you need a real battlefield to make an "enemy combatant", and talked about the same thing that civil libertarians were worried about when we began tearing our Constitutional rights apart after September 11, 2001, the President's claim that he could drag us out of our beds in the middle of the night and disappear us in a military prison because the battlefield was everywhere.
The Court concluded by rejecting the governments comparison to Lincoln's suspension of habeas corpus during the civil war. Lincoln recognized that the suspension was extraordinary and limited, while Bush argued that it was part of his inherent powers that could be exercized at will. While the Court recognized the President's powers in war and the special authority given after September 11, 2001, it reminded the government that it must not "break faith with this Nation's tradition of keeping military power subservient to civilian authority," and that "remaining true to that faith remains as important today as it was at our founding."
Real law enforcement works and this al-Marri matter could have been handled years ago. They should have prosecuted those credit card fraud and false statements charges. They may have even been able to prove RICO or worse if they tried. They got Al Capone on tax evasion, didn't they?
Sadly, however, when confronted with using traditional, good law and the opposite, the Bush administration will choose the opposite. They are appealing the decision to force the global battlefield concept and likel to test the loyalty of their hand-picked cronies on the Supreme Court.