11 June, 2007
By ZINIE CHEN SAMPSON
RICHMOND, Va. – A divided panel from a conservative federal appeals court harshly rebuked the Bush administration’s anti-terrorism strategy Monday, ruling that U.S. residents cannot be locked up indefinitely as “enemy combatants” without being charged.
The three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that the government should charge Ali al-Marri, a legal U.S. resident and the only suspected enemy combatant on American soil, or release him from military custody.
The federal Military Commissions Act doesn’t strip al-Marri of his constitutional right to challenge his accusers in court, the judges found in Monday’s 2-1 decision.
“Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants,'” the court said.
Such detention “would have disastrous consequences for the Constitution — and the country,” Judge Diana G. Motz wrote in the majority opinion, which was joined by Judge Roger Gregory. Judge Henry E. Hudson, a federal judge in Richmond, dissented.
“This is a landmark victory for the rule of law and a defeat for unchecked executive power,” al-Marri’s lawyer, Jonathan Hafetz, said in a statement. “It affirms the basic constitutional rights of all individuals — citizens and immigrants — in the United States.”
The government intends to ask the full 4th Circuit to hear the case, Justice Department spokesman Dean Boyd said.
“The President has made clear that he intends to use all available tools at his disposal to protect Americans from further al-Qaida attack, including the capture and detention of al-Qaida agents who enter our borders,” Boyd said in a statement.
The court said its ruling doesn’t mean al-Marri should be set free. Instead, he can be returned to the civilian court system and tried on criminal charges.
In his dissent, Hudson said the government properly detained al-Marri as an enemy combatant.
“Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States,” wrote Hudson, who was appointed to the federal bench by President Bush. The other two judges were appointed by President Bill Clinton.
The decision is the latest in a series of court rulings against the Bush administration’s anti-terrorism program.
Last August, a federal judge in Detroit said the government’s domestic spying program violated constitutional rights to free speech and privacy, and the constitutional separation of powers. Five months later, the Bush administration announced it would allow judicial review of the spying program run by the National Security Agency.
A year ago, the Supreme Court threw out Bush’s system of military trials for detainees at Guantanamo Bay, saying he had exceeded his authority and was in violation of international treaties. The Republican-led Congress then pushed through legislation authorizing war-crime trials for the detainees and denying them access to civilian courts.
But last week, military judges barred the Pentagon from prosecuting two of the Guantanamo detainees because the government had failed to identify them as “unlawful” enemy combatants, as required by Congress. The decisions were a blow to efforts to begin prosecuting dozens of detainees the government regards as the nation’s most dangerous terrorism suspects.
Al-Marri has been held in solitary confinement in the Navy brig in Charleston, S.C., since June 2003. The Qatar native has been detained since his December 2001 arrest at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11, 2001, terrorist attacks to study for a master’s degree at Bradley University.
Federal investigators found credit card numbers on al-Marri’s laptop computer and charged him with credit card fraud. Upon further investigation, the government said, agents found evidence that al-Marri had links to al-Qaida terrorists and was a national security threat. Authorities shifted al-Marri’s case from the criminal system and moved him to indefinite military detention.
Al-Marri has denied the government’s allegations and is seeking to challenge the government’s evidence and cross-examine its witnesses in court. Hafetz said prosecutors haven’t charged his client because they lack evidence, “or the evidence they’ve obtained is through torture, unreliable or unacceptable in civilized society.”
Al-Marri is currently the only U.S. resident held as an enemy combatant within the U.S.
Jose Padilla, who is a U.S. citizen, had been held as an enemy combatant in a Navy brig for 3 1/2 years before he was hastily added to an existing case in Miami in November 2005, a few days before a U.S. Supreme Court deadline for Bush administration briefs on the question of the president’s powers to continue holding him in military prison without charge.
Yaser Hamdi, an American citizen captured in Afghanistan in 2001, was released to his family in Saudi Arabia in October 2004 after the Justice Department said he no longer posed a threat to the United States. As a condition of his release, he gave up U.S. citizenship.
If the government’s stance was upheld, civil liberties groups said, the Justice Department could use terrorism law to hold anyone indefinitely and strip them of the right to use civilian courts to challenge their detention.
The Bush administration’s attorneys had urged the federal appeals panel to dismiss al-Marri’s challenge, arguing that the Military Commissions Act stripped the courts of jurisdiction to hear cases of detainees who are declared enemy combatants. They contended that Congress and the Supreme Court have given the president the authority to fight terrorism and prevent additional attacks on the nation.
The court, however, said in Monday’s opinion that the act doesn’t apply to al-Marri, who wasn’t captured outside the U.S., detained at Guantanamo Bay or in another country, and who has not received a combatant status review tribunal.
“The MCA was not intended to, and does not apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States,” the court said.
The court also said the government failed to back up its argument that the Authorization for Use of Military Force, enacted by Congress immediately after the Sept. 11 attacks, gives the president broad powers to detain al-Marri as an enemy combatant. The act neither classifies certain civilians as enemy combatants, nor otherwise authorizes the government to detain people indefinitely, the court ruled.
The case, which is expected to reach the Supreme Court, could help define how much authority the government has to indefinitely detain those accused of terrorism and to strip detainees of their rights to challenge the lawfulness or conditions of their detention.
10, June, 2007
By Neil Berry
It has been said that the United States is apt to view the rest of mankind as “failed Americans”. This is hardly new, but the era of President George W. Bush has surely witnessed an unprecedented upsurge of American self-flattery and self-aggrandizement. Bush and the neoconservative ideologues gathered around him have routinely portrayed the US as the very summit of human achievement, a polity before which the wider world is bound to genuflect in abject awe.
It is true that the Bush administration, with its catastrophic foreign policy, has rendered America globally unpopular as perhaps never before. Yet there has not been a more concerted effort to challenge the US rhetoric of success, the endless boasting about the superiority of all things American. Possibly because of the ubiquity of American popular culture there is still a willingness to accept America at its own overblown valuation. It is a willingness that is perhaps particularly deep-rooted in the Arab world.
It is curious that so many Arabs remain envious of the American way of life at a time when the US has demonstrated such contempt for the Arab people. The truth is that the idea of America retains a dazzling allure — though America is afflicted by a chronic moral and spiritual malaise.
Increasingly, the ills of the US are also the ills of the West in general, not least of Britain, which since the 1980s has in many ways become a European mirror of American society. During a recent public discussion in London about “Being Arab”, the collection of essays by the assassinated Palestine-born intellectual Samir Kassir, a member of the audience blurted out that she could not understand why it was taken for granted that it is Arab culture that is in an especially parlous condition. What about Britain? Was the Britain presided over by Prime Minister Tony Blair such an exemplary place? It was an excellent point and one which none of the participants in the discussion tried very hard to refute. With its apotheosis of the free market and cult of acquisitive individualism, Britain has striven hard to become a mini-US, though the results have not been encouraging.
It could even be argued that it is not freedom and democracy but high levels of stress and mounting psychological disorder that are America’s true gift to the world. As arrogant as he is inadequate, George W. Bush may be taken as an authentic personification of contemporary America.
Historians will savor the irony that at such a moment the United States and Britain spawned self-righteous Christian leaders who did not hesitate to lecture other peoples on the higher virtue of their “civilization”. America and its British satellite alike had less on which to congratulate themselves than they liked to claim even before the epoch-making betrayal of their own vaunted moral standards epitomized by Guantanamo Bay. That there is now a worldwide tide of anti-American feeling must be accounted a positive development. Even a former US president is now lining up with much of the rest of the world as an “anti-American”. Indeed, too much can hardly be made of the extraordinary denunciation by former President Jimmy Carter of Bush’s unilateralism and the appalling folly of Britain’s prime minister in endorsing it. When if ever before did a former president castigated a successor in such terms?
This is a welcome reminder that the current administration does not speak for the whole of America. The grievous damage it has done to America’s standing will not be quickly undone, even if the influence of neoconservative ideologues like Paul Wolfowitz and Richard Perle is no longer in the ascendant. And it is thanks to regressive policymakers such as Wolfowitz that Washington has brought to its dealings with the Middle East an absence of understanding that has been above all notable for its sheer perversity. In his timely and informative study, “What the Arabs think of America”, Andrew Hammond points out that the neoconservatives have promoted a fundamental misconception of the Arab worldview. Wolfowitz set special store by the work of the Zionist historian Bernard Lewis. The departing president of the World Bank maintained that Lewis’ book on Islam, “What went Wrong?” taught him “how to understand the complex and important history of the Middle East and use it to guide us where we will go next to build a better world for generations”. Yet Lewis’ book is a far from reliable guide. Most dubiously, it explains anti-American sentiment in the Arab world not with reference to the latter-day Arab preoccupation with the Zionist project and the Palestine-Israel conflict but in terms of historic Arab feelings of humiliation at the hands of the Christian West. In fact, the book makes scant mention of Israel.
It may be that neoconservative Zionists, with their obsession with the fate of Israel, have deliberately sought to mislead Western public opinion over this central issue — though it also seems likely that the public which turned Bernard Lewis’ book into a post-9/11 best-seller was only too ready to embrace its anti-Islamic stance; after all, it is not only rabid Zionists who loath to see beyond Judeo-Christian views of the Middle East.
What can safely be said is that today’s warmongering Western leaders and ideologues will not be remembered for their wisdom. Rather, they will be recalled for getting things woefully wrong — for being, in a word, precisely what they accused others of being: Failures.