Tuesday, November 14, 2006

GWB's "lettre de cachet" *

Glenn Greenwald has a powerful piece today about the disgraceful effect the abominable Military Commission Act has had on the case of Ali Saleh Kahlah al-Marri "a citizen of Qatar, was in the United States legally, on a student visa" in 2001. Glenn does provide a glimmer of hope when he notes what Sen. Pat Leahy, soon-to-be Chairman of the Senate Judiciary Committee, is planning (see below).
In December, 2001 he was detained as a "material witness" to suspected acts of terrorism and ultimately charged with various terrorism-related offenses, mostly relating to false statements the FBI claimed he made as part of its 9/11 investigation. Al-Marri vehemently denied the charges, and after lengthy pre-trial proceedings, his trial on those charges was scheduled to begin on July 21, 2003.

But his trial never took place, because in June, 2003 -- one month before the scheduled trial -- President Bush declared him to be an "enemy combatant." As a result, the Justice Department told the court it wanted to turn him over to the U.S. military, and thus asked the court to dismiss the criminal charges against him, and the court did so (the dismissal was "with prejudice," meaning he can't be tried ever again on those charges). Thus, right before his trial, the Bush administration simply removed Al-Marri from the jurisdiction of the judicial system -- based solely on the unilateral order of the President -- and thus prevented him from contesting the charges against him.


Instead, the Bush administration simply asserted the right to detain him indefinitely without so much as charging him with anything.

Last month, Congress endorsed this behavior and expressly vested the President with the power of indefinite, unreviewable detentions when it enacted the so-called Military Commissions Act of 2006. And the Bush administration has wasted no time relying on that statutory authority to justify the exercise of this extreme detention power.


The denial of habeas corpus rights is the most Draconian aspect of the MCA, as it authorizes detention for life with no real review and no meaningful opportunity to prove one's innocence. Sen. Chris Dodd said prior to the election that he regrets the decision not to filibuster the MCA: "I regret now that I didn't do it . . . This is a major, major blow to who we are." And Sen. Pat Leahy, soon-to-be Chairman of the Senate Judiciary Committee, has confirmed that he is "drafting a bill to undo portions of a recently passed law that prevent terrorism detainees from going to federal court to challenge the government's right to hold them indefinitely."

That has to happen. At the very least, re-establishing habeas corpus rights for detainees is an absolute imperative. We simply cannot be a country that vests in the President the power to order people imprisoned for life with no real review of the charges against them, particularly when the detainees are not detained on any battlefield, and particularly when they are detained inside the U.S.

There is no greater betrayal of the core principles of American political life than to have the federal government sweep people off the streets, throw them into a black hole with no contact with the outside world and no charges asserted of any kind, and simply keep them there for as long as the President desires -- in al-Marri's case, with respect to detention, now five years and counting.

As always, the most extraordinary and jarring aspect of cases like this one is that these principles -- which were once the undebatable, immovable bedrock of our political system -- are now openly debated and actively disputed by our own government. By itself it is astonishing -- and highly revealing about where we are as a country -- that such precepts even need to be defended at all.
* Lettre de cachet


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