Lock 'Em Up and Throw Away the Key

Damon W. Root | December 5, 2008

Does the Commander in Chief have the constitutional authority to order the indefinite detention of someone living in the United States? As The New York Times' Adam Liptak reports, the Supreme Court agreed today to hear the case of Al al-Marri, a citizen of Qatar who was studying computer science at Illinois' Bradley University when he was arrested in December 2001. As Liptak writes:

Eighteen months later, when Mr. Marri was on the verge of a trial on credit card fraud and other charges, President Bush declared him an enemy combatant, moving him from the custody of the Justice Department to military detention. The government says Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

The case, which will probably be argued in the spring, will present the Obama administration with several difficult strategic choices. It can continue to defend the Bush administration's expansive interpretation of executive power, advance a more modest one or short-circuit the case by moving it to the criminal justice system.

Whole thing here. Back in July, Robert Levy looked at the Court's landmark ruling on habeas corpus and Guantanamo Bay, and in June Gene Healy chronicled the radical expansion of executive power from the Founding era to the George W. Bush administration.

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|12.5.08 @ 4:39PM|#

POWs are entitled to an Article 5 tribunal. You can't just grab people and do nothing. At the same time, I don't think a foreign national on US soil who is or may be a part of a transnational conspiracy to kill Americans and commit acts of terror is entitled to be heard in federal court.

The problem is what do you do when you get intel that this guy is a terrorist? If you try him in open court you have to reveal your sources. If you have a source who is high up in a terror group, you can't exactly bring him back to testify in federal court. But you can't convict anyone in federal court on the basis of hearsay. But if you do nothing and the guy does kill a bunch of people it is a little late to go convict him.

The answer to this has always been military commissions. Bush never explained the problem and never went to Congress and set up the commissions when he had the political capital to do so. In 2001, he could have gotten together with the international community and created a standing international tribunal on terrorism and just let these assholes rot in the Hague for a few decades while the bureaucrats argued it out. They wouldn't be out causing mischief and would be out of our hair. Bush fucked this up so badly. You can't just round people up and keep them forever with no tribunal or anything.

|12.5.08 @ 4:46PM|#

to commit mass murder and disrupt the banking system

Oh, come on!

|12.5.08 @ 4:49PM|#

Joe,

I don't have the intel on this guy and if I did I couldn't say what it was. They have released plenty of people over the last few years. I seriously doubt that he is some blameless college student. I would imagine that he is a serious dirtbag. But, that doesn't mean the government is immune from providing a systerm whereby they show some neutral authority what a dirtbag this guy really is. Sadly, thanks to their failure to do so, this guy may some day walk free and cause real harm to people.

|12.5.08 @ 4:50PM|#

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [italics added]

The Bush administration has it wrong.

Mad Max|12.5.08 @ 4:51PM|#

After the 9/11 attacks, Congress passed an Authorization of the Use of Military Force law - a highly broad statute allowing the President to take broad actions against those he (the Pres) decided were behind 9/11. Our lords and masters on the U.S. Supreme Court said in the *Hamdi* case that this was an authorization for the Pres to lock up citizens captured on foreign battlefields, with some allowance for judicial review.

Here is a case of an alien arrested on U.S. soil, not on a foreign battlefield. Did Congress mean to authorize the detention of such aliens indefinitely, on the whim of the Pres? That flies in the face of another law passed by Congress soon after its Authorization of Military Force Resolution. I refer to the (in)famous PATRIOT Act, which allows the executive branch (per the Attorney General) to detain aliens without charge for up to *seven days.*

Notice the gap between "seven days" and "indefinitely."

Yet, the Pres's lawyers want us to believe that Congress authorized indefinite detention, without trial, of aliens arrested in the U.S., shortly before allowing their detention for *seven days.* Somethign doesn't add up here.

Seeming to realize this, the Pres's lawyers say the Pres has an inherent constitutional power to lock people up for "national security" purposes, whatever Congress might say. To be sure, Congress has passed a non-Detention Act providing that the United States cannot lock up a citizen without statutory authority, implying that the executive can be more loosey-goosey when mere aliens are involved. Nevertheless, the specific provision for detaining aliens for seven days seems to negate a Congressional purpose to allow longer terms of detention without charge or trial, at least with respect to aliens arrested in the U.S.

Kolohe|12.5.08 @ 4:53PM|#

"disrupt the banking system."

And he's been in jail the last 7 years? This guy is good.

ed|12.5.08 @ 4:54PM|#

The government says Mr. Marri is a Qaeda sleeper agent
sent to the United States to...disrupt the banking system.

Al al-Marri, aka Henry Paulson.

kinnath|12.5.08 @ 4:56PM|#

"disrupt the banking system."

So Bernanke is a mole?

Missed it by this much

db|12.5.08 @ 4:58PM|#

Man, I'm sure this guy didn't manage to disrupt the banking system. Close call!

damn!

|12.5.08 @ 4:58PM|#

Mad Max,

I don't think the court went far enough. If you are an American Citizen caught on a battlefield, you should have no more due process than anyone else caught on one, which is basically none.

The problem of aliens caught on US soil is a more sticky one as you point out. That is why the more I think of it, they need to create a standing international tribunal on terrorism at the Hague. We could adopt the liberal evidence rules of Western Europe, have a multi national bench of judges and conduct trials in secret. The Europeans for all their whinning about GUITMO are nasty buggers when it comes to terrorist trials. That way when we caught an alien on our soil, we could just ship them off to the Hague and let them deal with it.

|12.5.08 @ 5:10PM|#

Hmmm. If al Qaeda is behind the financial crisis, maybe we should get even more serious in dealing with them.

|12.5.08 @ 5:13PM|#

I don't like this "battlefield" crap.

When the last three Attornies General, the President and Vice President, and the upper echelons of the military keep proclaiming that "this new type of war" means that our streets, offices, airports, and homes are "the battlefield," claiming the powers the military has always had "on the the battlefield" apply to people out of uniform "on the battlefield" is a declaration of martial law.

Saying that the Geneva Conventions' characterization of out-of-uniform combatants applies to this "new battlefield" is a declaration of martial law by a government that doesn't intend to respect any limits at all.

|12.5.08 @ 5:19PM|#

"When the last three Attornies General, the President and Vice President, and the upper echelons of the military keep proclaiming that "this new type of war" means that our streets, offices, airports, and homes are "the battlefield," claiming the powers the military has always had "on the the battlefield" apply to people out of uniform "on the battlefield" is a declaration of martial law."

Terms can have different meanings. On the battlefield means in the middle of combat between high contracting parties, period. Anyone caught out of uniform making mischief in that situation, should be hung. The problem is what do you do with the guy who is caught in an Al Quada training camp in Pakistan or in a safehouse in Hamburg. I think a standing international tribunal on terrorism would be a very good way to deal with that person.

db|12.5.08 @ 5:24PM|#

+1 to joe@December 5, 2008, 5:13pm

thoreau|12.5.08 @ 5:27PM|#

So, it was observed in a comment at Unqualified Offerings that after the $700 billion (and counting) for Wall Street any sort of bailout will look good by comparison and it will be impossible to say no.

Likewise, the prosecution really screwed up by not just charging this guy with a crime and getting him a speedy trial years ago. In comparison with what's happened to our banking system in the last few months, any harm that he was alleged to be plotting will look puny in comparison.

"Ladies and gentlemen of the jury, Mr. al-Marri was plotting an attack that could have cost our banking system nearly one beeellion dollars! Can you imagine that sort of financial devastation?"

Oh, and +1 to joe from me as well.

|12.5.08 @ 5:28PM|#

I second...or I guess it is third now, what Joe said at 5:13pm

DannyK|12.5.08 @ 5:36PM|#

The Bush administration has a long history of charging people with blood-curdling crimes, keeping them a long time, and then dropping most of the charges at the last moment. Or else taking them to trial and ending up with a sentence of time served plus a few months, like David Hicks or Salim Hamdan.

So there's every reason to think that this case, too, will disintegrate on closer inspection. I hope the Obama administration will do the right thing.

|12.5.08 @ 5:39PM|#

Hicks I am not familiar with. Hamden should have been shot. I honestly cannot explain the sentence in that case. You are the close confidant and body guard of Bin Ladin throughout the entire planning of 9-11 and risk your life to help him escape AFghanistan. How can you only get a few years? That case puts total lie to the idea that military judges can't be liberal crazies.

|12.5.08 @ 5:44PM|#

+1 to highnumber for staying out of this conversation.

MAX HATS|12.5.08 @ 5:48PM|#

liberal crazies

Defined broadly, I suppose.

|12.5.08 @ 5:51PM|#

The government says Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

Was he reporting to Alan Greenspan?

|12.5.08 @ 5:52PM|#

Only a nut would think Hamden, given what he did deserved a few years in jail. Granted he was the cheuffer and not exactly some Bond villian. But that doesn't excuse what he did.

Mad Max|12.5.08 @ 6:02PM|#

John,

Your int'l terrorism tribunal idea is interesting - it might be an interesting idea, so long as it doesn't wield jurisdiction over U.S. citizens or over crimes by people on U.S. soil.

By the way, you know that Western European countries have given up on "hanging" people, right?

"puts total lie to the idea that military judges can't be liberal crazies."

I heard a student who served in the Marines complaining about John Yoo, the civilian Justice Department official, hassling JAG lawyers assigned to defend alleged terrorists. It seems these lawyers were being too enthusiastic in demanding minimal rights for the clients.

It seems that military can't be relied on to fully gut due process - the civilians, with their superior toughness, have to step in.

I will keep your remarks in mind the next time I hear about the need of civilians to defer to the military.

|12.5.08 @ 6:04PM|#

I award Viking Moose -1 points for considering joining the debate but wimping out.

|12.5.08 @ 6:09PM|#

John Yoo knows it's never going to be him before some country's "military tribunal."

THAT guy should be in the Hague.

</i>|12.5.08 @ 6:14PM|#

The government says Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

So this guy was like a cross between Harris, Klebold , and the Community Reinvestment Act?

EscapedWestOfTheBigMuddy|12.5.08 @ 6:18PM|#

The problem is what do you do when you get intel that this guy is a terrorist? If you try him in open court you have to reveal your sources. If you have a source who is high up in a terror group, you can't exactly bring him back to testify in federal court.

You do some good, old fashion policing.

You take your evidence, and get a warrant to sit tight on him---electronically, physically, whatever---while you pursue the rest of the organization. If he gets ready to move, you arrest him for overt criminal acts, secure a conviction in an open court of law, and put him away for a while.

That gives you more time if you still need it.

MNG|12.5.08 @ 6:26PM|#

I agree with Mad Max's comments for a change.

I'll add that it seems to me like it doesn't matter what law the Congress passed on this, unless they have suspended habeas then any American citizen should be able to have their detention reviewed via that great writ.

|12.5.08 @ 6:52PM|#

-10 points to joe for appointing John Yoo to the Hague court.

|12.5.08 @ 7:01PM|#

Only a nut would think Hamden, given what he did deserved a few years in jail. Granted he was the cheuffer and not exactly some Bond villian.

Maybe he was a Bond chauffeur, like Oddjob.

|12.5.08 @ 7:04PM|#

The answer to this has always been military commissions.

Not since Ex parte Milligan, it hasn't.

Mike Laursen|12.5.08 @ 7:05PM|#

If you try him in open court you have to reveal your sources.

Federal courts can't conduct closed sessions and redact their documents?

|12.5.08 @ 7:17PM|#

John:

Terms can have different meanings. On the battlefield means in the middle of combat between high contracting parties, period.

It sounds so good ... but I'll bet you would have defined "combatant" and "detention" differently than GWB, too. It's disturbing when "period" means "unless the President has something else in mind?"

But, John, what do you think of establishing some sort of tribunal once Obama takes the reins? Possible? It would get all the "combatants" out of Gitmo and into an international environment where they will be able to be judged impartially ... as long as there is some nod to "national security".

Oh, joe said it nicely, disturbing though it is.

|12.5.08 @ 7:21PM|#

If Hamden is exactly like Oddjob, then I recommend pardoning him and convincing him to work for us. That would be so cool.

Speaking of that, can't we turn one of these guys who really was an insider? I mean, you can buy a lot of loyalty for $100 million. And all we want in return is one guy.

|12.5.08 @ 8:58PM|#

I'm not sure the Bush administration could have helped Al Quaeda more if they had just set up a recruiting agency for them.

|12.5.08 @ 10:29PM|#

Saying that the Geneva Conventions' characterization of out-of-uniform combatants applies to this "new battlefield" is a declaration of martial law by a government that doesn't intend to respect any limits at all.

Luckily, joe, now that the Democrats control everything, we can expect all this rubbish to be reversed shortly after Jan 20th.

/sarcasm

cunnivore|12.6.08 @ 12:52AM|#

I don't think a foreign national on US soil who is or may be a part of a transnational conspiracy to kill Americans and commit acts of terror is entitled to be heard in federal court.

I "may" be part of a transnational conspiracy.

You "may" be part of a transnational conspiracy.

Each person in America "may" be part of a transnational conspiracy.

We don't want to lock someone up indefinitely over "maybes".

|12.6.08 @ 9:20AM|#

Sounds to me like this may well be the biggest Witch Hunt of ALL time. I hope the almighty Kangaroo Court sees it this way and cuts this poor guy lose!

jess
www.privacy-tools.at.tc

VM|12.6.08 @ 9:26AM|#

hrumph
/kicks pebble

|12.6.08 @ 10:18AM|#

Luckily, joe, now that the Democrats control everything, we can expect all this rubbish to be reversed shortly after Jan 20th.

Yep. That's something the new president has been very clear about.

As much as that obviously pains you to acknowledge.

robc|12.6.08 @ 10:32AM|#

joe,

I hope you are right, but I dont believe it. Mostly because Obama is a politician and politicians lie. I give none of them (even the ones I vote for) the benefit of the doubt.

|12.6.08 @ 11:09AM|#

Speaking of that, can't we turn one of these guys who really was an insider?

Because the insiders believe they are on a mission from God, literally, and that God is on their side.

Mad Max|12.6.08 @ 11:44AM|#

"or short-circuit the case by moving it to the criminal justice system."

Assuming there isn't some kind of speedy-trial problem, given that he was "on the verge" of his trial when he got sidetracked into prison by virtue of Bush's lettre de cachet.

Speedy trial means the prosecution has to fish or cut bait. It can't charge someone,then hold off for several years, then finally decide, "I guess a trial would be a good idea."

left_nut_right_nut|12.6.08 @ 1:01PM|#

I see the Bush regime's policy here to be white wit a red splash. Clearly their need for control was/is fueled by a passion, or zeal if you will.

What changes jan 20th is we get an unknown, however my prediction is that it will play out a lot like 5-color, given how many people are yammering for this and that. Once the meta settles a bit they could either play like ug madness or stay in 5-color control. The control aspect makes sense because they do not seem apt to play aggro or move particularly fast on any issue.

It's in their best interest to play draw-go for their first couple of turns. The risk is they might just get wiped by a multi-angles aggro attack.

Thoughts?

/full retard

Mad Max|12.6.08 @ 1:35PM|#

left_nut_right_nut,

I'm absolutely confident that your comments have some meaning, but it seems I'm not sophisticated enough to grasp it.

|12.6.08 @ 1:43PM|#

Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

By writing computer programs to autonomously trade mortgage backed derivatives.

|12.6.08 @ 2:03PM|#

+1 to joe from me too - see he's not all bad after all...

The connection with the banking system collapsing is 100% prime, grade A Bullshit.

I hope Obama fixes this embarrassment as job 1 - however, you can count me with robc as a skeptic. I'd be happy to be proven wrong.

Oh, and as far as I'm concerned, if not giving up secrets is the reason that you can't prosecute in open court - then the government has a tough choice to make. But they should be forced to make it. Secret info is no better, and often a great deal worse that openly acquired info - so I doubt very seriously that any secret info is more damning evidence than what they could show at the unclassified level. They could scrub and polish the classified data to a large degree if they wanted to - they are trying to eat their cake and have it too.

Craig|12.6.08 @ 2:06PM|#

The government says Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

What, they have a problem with competition?

Craig|12.6.08 @ 2:11PM|#

John Yoo knows it's never going to be him before some country's "military tribunal."

He's assuming that the coming populist/libertarian political revolution will somehow be restrained by the strict constructionism of its more principled members, and not go after everyone who participated in or helped justify the totalitarian state they are revolting against?

How quaint.

Naga Sadow|12.7.08 @ 3:42PM|#

Craig you fool!!! Don't give em' heads up about the coming revolution! You'll ruin my chances of being a warlord!

Jere L Griffin Jr|12.8.08 @ 9:09AM|#

United Nations , Declaration Of Human Rights , Dec. 1948. Read and weep! The U.S. Constitution. The Bible . Do unto others as you would have done unto you! You Reap what you sow! These Documents do not contain an exporation Date! So If the voters don't Know? They the Government Does What it Wants , When it Wants , And How it Wants! Notice the Capitalist system of the Rich Has Destroyed The U.S.A. but from the Bottom up! Merry Christmas , Happy New Year Obama ! JJ

|12.8.08 @ 4:29PM|#

All tyrants use the enemy of the state/land/kingdom/ect as a reason to excuse the accused of due process.

The President has NO constitutional authoriy to hold anyone without due process. It's a feature not a bug.

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