On basic rights, U.S. lost its way
By A TIMES EDITORIAL
Published June 18, 2007
What happened to Ali al-Marri is the story of America losing its way by letting fear override our national values. The student from Qatar was in the United States legally along with his wife and five children, studying for his master's degree in Peoria, Ill. In 2001, he was detained by federal agents and later charged with credit card fraud. Then, on the eve of trial, he was unilaterally designated an enemy combatant by President Bush and sent to a military brig in South Carolina, where he spent the next four years in solitary confinement in a cell described as 9 feet by 6 feet.
The government claims that al-Marri is an al-Qaida terrorist who was a sleeper agent in the United States. He is alleged to have been on a "martyr mission" with instructions to disrupt our country's financial system through computer hacking.
This may all be true, but it has never been proven before an independent judicial body. Instead, the Bush administration says that no proof is necessary. Al-Marri may be held indefinitely and never charged, solely upon the president's say-so.
This sweeping arrogation of presidential authority is what a federal appeals court halted in a recent ruling. In a 2-1 decision, a panel of the 4th U.S. Circuit Court of Appeals said that al-Marri is a civilian with constitutional rights and has to be either criminally charged, deported, held as a material witness or set free. But he could not continue to be held in legal limbo outside the normal rules governing the treatment of suspects.
The court made a clear distinction between the law of war and the criminal justice system. It said that since al-Marri was not a combatant fighting on the battlefield in Afghanistan, he could not come under military jurisdiction. Just as other terrorists operating domestically, including the Unabomber, the Oklahoma City bombing conspirators and the men who planned the first World Trade Center attack, were charged criminally and successfully prosecuted, so too should al-Marri face the same process.
In trenchant language, the court recognized the gravity of what the Bush administration was asking: "To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them 'enemy combatants, ' would have disastrous consequences for the Constitution - and the country. ... It would effectively undermine all of the freedoms guaranteed by the Constitution."
President Bush is dangerously undermining the nation's constitutional values. He has used the "war on terror" as a justification to ignore the separation of powers, individual rights and international law. As a result of his excesses, America is now associated with secret overseas prisons, the use of torture, warrantless domestic spying and the use of the enemy combatant designation to hold prisoners in the United States, Guantanamo and elsewhere without trial. All of these are executive branch policies, with power emanating from the president.
Congress, to its shame, has so far failed to rein in these excesses. But the court in the al-Marri decision has returned the nation to a responsible legal regime for dealing with terror suspects.
Not surprisingly, the Bush administration denounced the ruling and vowed an appeal to the full 4th Circuit, one of the most conservative judicial circuits in the country. But if the courts give up as well and cede to the president the power he has already grabbed, then any one of us could be spirited into a military brig upon the president's orders, without any proof of wrongdoing necessary.