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Tuesday, December 9, 2008

AFJ President Nan Aron on Huffington Post

The End of Legal Limbo

When Mr. Ali Saleh Kahlah al-Marri legally brought his wife and children from Qatar to Peoria, Illinois, on September 10, 2001, he had planned to earn a master's degree from his undergraduate alma mater, Bradley University. Instead, he began a Kafkaesque odyssey that has now made its way to the U.S. Supreme Court.

In December 2001, Mr. al-Marri was arrested by the FBI as a "material witness" in the 9/11 investigation, a designation that allows the government to detain people for months without any criminal charges. He has been imprisoned ever since, enduring many of the Bush administration's various and often clumsy schemes to avoid allowing a court to decide his guilt or innocence. In 2003, the federal government charged Mr. al-Marri with possession of unauthorized or counterfeit credit card numbers, but not with violent terrorism. In June of 2003, just before a federal judge was to hold a hearing on various motions in the credit cards case - including one asserting that evidence had been obtained from Mr. al-Marri by torture - President Bush intervened to prevent Mr. al-Marri from having his day in court. The president ordered the dismissal of all criminal charges against Mr. al-Marri so that the Secretary of Defense could take custody of him as an "enemy combatant" associated with al Qaeda.

In the year after he became an "enemy combatant," Mr. al-Marri was not permitted to communicate with anyone -- including his lawyers and his family. His effort to have his detention tested under the writ of habeas corpus was rejected by District Judge Henry F. Floyd -- an appointee of President George W. Bush. When he appealed that decision to the Fourth Circuit, he succeeded before a panel of three judges consisting of two judges appointed by President Clinton, and one district judge appointed by President George W. Bush. That decision was 2-1, with the Bush appointee dissenting. But, as often happens in the Fourth Circuit, when a three-judge panel does not adhere to the court's ultraconservative ideology, the panel's decision is reviewed by the full court -- for Mr. al-Marri, this meant nine circuit judges would sit in judgment over his request to have his day in court: four ultraconservative judges, four progressive judges, and one centrist. In Mr. al-Marri's case, the centrist judge --originally appointed as a district judge by President George H.W. Bush, and then elevated to the Fourth Circuit by President Bill Clinton, sided with the ultraconservative bloc. The result was a decision that the President has the authority to detain anyone properly designated as an "enemy combatant" -- including a U.S. citizen or legal resident -- for as long as he sees fit.

Last week, the Supreme Court agreed to review the Fourth Circuit's decision, a choice that raises two major themes of Bush's presidency: the expansion of the President's power to govern more like an absolute monarch than like the head of a democratic government; and the administration's courtpacking program. The Supreme Court's decision to take up this case presents the opportunity for the incoming Obama administration to begin to reverse course.

The government's briefs in Mr. al-Marri's case are due no earlier than February 18, 2009, well after President-elect Obama is inaugurated. It is not easy for a President to disavow greater presidential power. Nor is it easy for the Department of Justice to abandon legal arguments made repeatedly to numerous courts and judges. But the new administration can help restore the rule of law by frankly telling the Supreme Court that Mr. al-Marri is a civilian, not an enemy combatant -- albeit one who may have committed serious crimes. And if there is real evidence he committed those crimes, he should go on trial and let a judge and jury reach its decision.

Beyond that, this case underscores the need for President-elect Obama to appoint judges who will be skeptical of presidential power, both his own and that of future presidents. Because federal judges serve lifetime appointments, they will sit in judgment over the actions of many presidents, with various political agendas. The most important criterion must be adherence to the constitutional values, such as the right of someone held in government custody to be tried for a crime or released from confinement - a right embodied in the writ of habeas corpus recently upheld by the Supreme Court in a closely divided 5-4 decision.

We look forward to the day when this right is enforced by a unanimous Supreme Court, at the urging of the Justice Department. The new administration can bring us a step closer to that day.

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