Supreme Court Agrees to Hear New Detention Case
The Supreme Court has agreed to hear a new detention case, and Ed Morrissey says:
The key in this case lies in Marri’s status prior to his arrest. Unlike the people held at Guantanamo Bay, Marri was arrested on US soil while living here legally as a resident alien. The Bush administration has held him on US soil. Both conditions would appear to give Marri the same Constitutional protections as any other legal resident (and in some cases, even illegal aliens).
Most of us want to support an aggressive policy in the war on terror, but this sounds like a step too far. . . . If the executive branch has the power to designate citizens and resident aliens enemy combatants without any due process, what limitations does the executive have on its powers? Literally anyone could get seized with that kind of designation without hope of challenging the executive to produce evidence.
I tend to agree. If you think I’m wrong, tell me why.
Nope. I agree with you 100%.
Bill Roper (f93cf2) — 12/6/2008 @ 9:04 pmI have no problem with some minimal review. But, I fail to see why it would have to be within the Federal judiciary. A military tribunal would be fine with me, with a low standard of proof needed for an indefinite hold, which would have to end upon cessation of hostilities with the offending parties/agents/states. You want to commit treason in a time of war on our soil? You are lucky I didn’t shoot you on sight.
We are not talking about a criminal act. We are talking about an act of war.
But, yes. A reasonably constituted non-criminal hearing, under oath, would be a fine thing. If there really is no proof, as in absolutely nothing, set the person free.
Ed (957a32) — 12/6/2008 @ 9:23 pmEd,
I think you are a traitor. Where do you live?
nk (5a0e72) — 12/6/2008 @ 9:40 pmNK – aha! I’ve smoked you out, you double agent, you!
Ed (957a32) — 12/6/2008 @ 10:48 pmIt’s actually a good idea, get the matter settled one way or another.
What there needs to be is some court designed so that none of the secret intelligence can be heard outside of the court.
William Teach (2d1bed) — 12/7/2008 @ 9:00 amI agree with Patterico on this.
If this guy can be held without charges then any American citizen could easily be held without charges as long as the government claims you are some kind of terrorist and plays the proper propaganda to sway public opinion.
ML (14488c) — 12/7/2008 @ 12:53 pmI view this as an extreme fact pattern that could clearly define the boundaries of government power and individual rights in the War on Terror. Thus, I hope the point of appealing the case is to clarify the issues, conclusively establish the applicable laws, and determine the procedures that will guide the government in the years ahead.
I’d almost be confident that’s the point of this appeal except for my doubts about the Bush DOJ. I’m impressed with Mukasey but, frankly, today’s DOJ seems like a conflicted and almost schizophrenic organization, and I have no idea what motivates the various factions that work there.
DRJ (b4db3a) — 12/7/2008 @ 1:04 pmCorrect me if I’m wrong, but I remember that one of the German saboteurs landed on Long Island by submarine during WW-2, was an American citizen, or legal alien.
Another Drew (b4fb11) — 12/7/2008 @ 1:28 pmAll of them were tried by military commission, and shot.
What has changed?
Patterico, the real question is not whether he should receive due process – of course he should – but rather what process ought to be due. Let’s put aside the current law question, which, alas, will again pit the president’s war powers against the due process clauses. The Bush administration has tried to run all counter-terrorism as a prerogative of the executive branch. This really was never going to be stable, even absent the string of Supreme Court losses, since what lives by executive discretion necessarily dies by executive discretion as well. The administration ought, in my opinion, to have gone to Congress early for new laws to deal with these issues. So much time and opportunity lost.
But to the problem at hand, allow me the following two hypothetical:
Al Qaeda has an electronic communications system which is not wholly software driven but is also based on codes, timing, and various obscurities. After two years of painstaking effort, the NSA has partially cracked the system and is beginning to read communications to operatives. Some of the communications are to a sleeper in the US. The sleeper is a bomb-maker on a student visa. He’s a doctoral student in chemistry. AQ central has decided it is time to hit “go”. The sleeper sends al Qaeda a list of targets he believes he can hit. AQ makes a selection, and the sleeper begins gathering materials. At this point the feds decide they have to move. But the sleeper notices a tail shortly before the feds move in. He destroys his hard drives beyond recovery twenty minutes before he is apprehended. In his apartment there is a collection of chemicals that remotely plausibly might be legitimate for him to have. There’s no other evidence: all of the communications and all of the casing data was destroyed on the hard drive.
The official announcement is that he has been apprehended due to “bomb material purchases.”
Now we’ve got a problem. If you try the guy based only on the evidence found in the apartment, he’s going to walk. He’s a mid-value detainee (AQ chemists are not a dime a dozen), so you don’t want to let him go. If you try him with the evidence that will convict him, then AQ realizes we’ve cracked their communications system and that intelligence windfall is lost. Your intelligence interest competes directly with your due process demands.
So how do you square the circle? I think there are ways of doing it, but I don’t think any of them would allow the public to be convinced beyond a reasonable doubt, at least right away, that the guy’s truly an AQ operative. The best you can reasonably do is give the guy modified process in a closed proceeding and unseal the record when the intelligence secrets are no longer of value. That’s more than Marri’s getting, but not much more, and from the perspective of immediate public knowledge, nothing more at all.
Yes, allowing the government this sort of power means that if the wrong people get the helm, they can sweep up innocents or “disappear” their political enemies. There are ways of mitigating that danger, and America’s strong democratic tradition reduces it greatly (the overwhelming majority of the military and permanent government would scream bloody murder if asked to participate), but the danger is there.
Are mass casualty attacks by citizen and legal resident terrorists a greater danger? If they are, then I think we should give the government the powers by statute. But that balance of risk is the real issue: I believe that if Congress is to authorize powers such as this, it should do so recognizing that it is breaking American tradition, and breaking it to deal with a particular danger. Absent that danger, the powers should vanish. I would write the authorizing legislation to expire automatically every few years unless there is a specific finding by Congress that the terrorism risk remains high enough to justify the powers. That way we do our best to never quite get used to them. The executive also knows that if it ever misuses them, Congress only has to do nothing, and the powers disappear.
Sorry for the long comment: too many issues involved.
Nathan Wagner (277229) — 12/7/2008 @ 6:00 pm