Perspective

When 'enemy combatants' aren't

Executive overreach gets checked in a court ruling that labels a suspected al-Qaida operative as a civilian.

By ROBYN BLUMNER
Published June 17, 2007

The indignance emanating from the right wing over the Al-Marri decision is over the court's labeling Ali Al-Marri, an alleged al-Qaida operative, as a civilian rather than an enemy combatant.

"By (the court's) lights, even 9/11 ringleader Mohamed Atta wasn't a combatant. Despite his enlistment in an organization waging war on America that had trained him and sent him here, he was just a civilian, " wrote the National Review in an editorial blasting the 4th U.S. Circuit Court of Appeals ruling.

What seems to be getting their camouflage-colored boxers in a knot is the nomenclature. The term civilian seems to imply moral innocence while "enemy combatant" is freighted with aggressive action and evil intent. This is an improper reading of these terms.

The case of Al-Marri involves a national of Qatar who was a legal U.S. resident studying at Bradley University in Peoria, Ill., and living with his wife and five children before being imprisoned without charge in a 9-by-6-foot cell.

Al-Marri was detained in 2001 and eventually charged with a series of crimes involving fraudulent credit cards. Then, in June 2003, he was unilaterally designated an enemy combatant by the president and spirited to a military brig in South Carolina, where he was held in solitary confinement for the next four years. The military says Al-Marri was serving as a "sleeper agent" in the United States and was on a mission to disrupt the country's financial system through computer hacking. It says that because of these suspicions, it can hold him indefinitely without charge.

In ringing language, the court refused to go along: "The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention." Al-Marri is not fighting for a nation with which we are at war and therefore he must be tried as a civilian in accordance with the due process guarantees of the Constitution, the court said.

Judge Diana Gribbon Motz, the opinion's author, goes out of her way to recognize the "grave threat international terrorism poses to our country and our national security, " and the potential harm Al-Marri may pose.

But she clearly draws a line between war and everything else.

A civilian can be guilty of horrendous crimes against our nation. The court pointed to the Unabomber and the conspirators in the Oklahoma City bombing. In those cases, terrorism was the goal and the crimes were motivated by a warped ideology. Add to that any number of Islamic terrorist cases that have already been successfully prosecuted - including Zacarias Moussaoui, convicted as part of the 9/11 conspiracy, and the men who participated in the first World Trade Center bombing - and it is clear that the term civilian has nothing whatever to do with guilt or innocence. It is also apparent that the criminal justice system is perfectly capable of dealing with monsters, even those who are well-organized and supremely armed.

Meanwhile, the term "enemy combatant" is what, under the law of war, the enemy soldier is called - the Japanese, German, Korean and Vietnamese soldiers we captured during wartime. Enemy combatants can fight us with lethal force, be captured, and then released at the end of hostilities.

Eric Freedman, a law professor at Hofstra University, made this distinction clear in the New York Times when he said it makes no sense to say we are at war with a group of terrorists.

"The Colombian drug cartel has airplanes and bombs and boats, and it shoots down American airplanes, " Freedman said. "They're criminals." Otherwise, Freedman said, "They'd have combat immunity."

What President Bush has been pushing for is a rubric that does not follow the law of war or the civilian system. He has been blazing a new path for America. One of presidential tyranny, where the commander in chief has dominion over the battlefield, defined as the entire planet, and may designate anyone an enemy to be thrown into detention, tortured into talking and never heard from again. The prisoners wouldn't be soldiers in war or civilians. They would be America's disappeared.

If the court approved what happened to Al-Marri, there would be no legal principle that prevented the president from doing the same to any American.

The Al-Marri ruling noted that Congress, in passing the Patriot Act, outlined provisions for suspected alien terrorists. They could be held for seven days before charges had to be filed or deportation commenced. In disregarding Congress' rather generous grant of executive power, Bush has said that charges don't have to be brought at all.

Unchecked executive detention is not a new response to a new kind of threat. It is a very old response used historically by kings, dictators and despots, and its acceptance here would change everything.

[Last modified June 16, 2007, 08:47:56]