US residents in military brigs? It's war...

Module88 · May 27, 2008

US residents in military brigs? It's war...

Who didn't see this one coming?

Article said:

US residents in military brigs? Govt says it's war

By MATT APUZZO, Associated Press WriterSat May 24, 12:13 PM ET

If his cell were at Guantanamo Bay, the prisoner would be just one of hundreds of suspected terrorists detained offshore, where the U.S. says the Constitution does not apply.

But Ali Saleh Kahlah al-Marri is a U.S. resident being held in a South Carolina military brig; he is the only enemy combatant held on U.S. soil. That makes his case very different.

Al-Marri's capture six years ago might be the Bush administration's biggest domestic counterterrorism success story. Authorities say he was an al-Qaida sleeper agent living in middle America, researching poisonous gasses and plotting a cyberattack.

To justify holding him, the government claimed a broad interpretation of the president's wartime powers, one that goes beyond warrantless wiretapping or monitoring banking transactions. Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely.

There is little middle ground between the two sides in al-Marri's case, which is before a federal appeals court in Virginia. The government says the president needs this power to keep the nation safe. Al-Marri's lawyers say that as long as the president can detain anyone he wants, nobody is safe.

___

A Qatari national, al-Marri came to the U.S. with his wife and five children on Sept. 10, 2001 â€” one day before the terrorist attacks in New York and Washington. He arrived on a student visa seeking a master's degree in computer science from Bradley University, a small private school in Peoria, Ill.

The government says he had other plans.

According to court documents citing multiple intelligence sources, al-Marri spent months in al-Qaida training camps during the late 1990s and was schooled in the science of poisons. The summer before al-Marri left for the United States, he allegedly met with Osama bin Laden and Sept. 11 mastermind Khalid Sheikh Mohammed. The two al-Qaida leaders decided al-Marri would make a perfect sleeper agent and rushed him into the U.S. before Sept. 11, the government says.

A computer specialist, al-Marri was ordered to wreak havoc on the U.S. banking system and serve as a liaison for other al-Qaida operatives entering this country, according to a court document filed by Jeffrey Rapp, a senior member of the Defense Intelligence Agency.

According to Rapp, al-Marri received up to $13,000 for his trip, plus money to buy a laptop, courtesy of Mustafa Ahmad al-Hawsawi, who is suspected of helping finance the Sept. 11 attacks.

A week after the attacks, Congress unanimously passed the Authorization for Use of Military Force. It gave President Bush the power to "use all necessary and appropriate force" against anyone involved in planning, aiding or carrying out the attacks.

The FBI interviewed al-Marri that October and arrested him in December as part of the Sept. 11 investigation. He rarely had been attending classes and was failing in school, the government said.

When investigators looked through his computer files, they found information on industrial chemical suppliers, sermons by bin Laden, how-to guides for making hydrogen cyanide and information about chemicals labeled "immediately dangerous to life or health," according to Rapp's court filing. Phone calls and e-mails linked al-Marri to senior al-Qaida leaders.

In early 2003, he was indicted on charges of credit card fraud and lying to the FBI. Like anyone else in the country, he had constitutional rights. He could question government witnesses, refuse to testify and retain a lawyer.

On June 23, 2003, Bush declared al-Marri an enemy combatant, which stripped him of those rights. Bush wrote that al-Marri possessed intelligence vital to protect national security. In his jail cell in Peoria, however, he could refuse to speak with investigators.

A military brig allowed more options. Free from the constraints of civilian law, the military could interrogate al-Marri without a lawyer, detain him without charge and hold him indefinitely. Courts have agreed the president has wide latitude to imprison people captured overseas or caught fighting against the U.S. That is what the prison at Guantanamo Bay in Cuba is for.

But al-Marri was not in Guantanamo Bay.

"The president is not a king and cannot lock people up forever in the United States based on his say-so," said Jonathan Hafetz, a lawyer who represents al-Marri and other detainees. "Today it's Mr. al-Marri. Tomorrow it could be you, a member of your family, someone you know. Once you allow the president to lock people up for years or even life without trial, there's no going back."

Glenn Sulmasy, a national security fellow at Harvard, said the issue comes down to whether the nation is at war. Soldiers would not need warrants to launch a strike against invading troops. So would they need a warrant to raid an al-Qaida safe house in a U.S. suburb?

Sulmasy says no. That's how Congress wrote the bill and "if they feel concerned about civil liberties, they can tighten up the language," he said.

That would require the politically risky move of pushing legislation to make it harder for the president to detain suspected terrorists inside the U.S.

Al-Marri is not the first prisoner who did not fit neatly into the definition of enemy combatant.

Two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, were held at the same brig as al-Marri. But there are differences. Hamdi was captured on an Afghanistan battlefield. Padilla, too, fought alongside the Taliban before his capture in the United States.

By comparison, al-Marri had not been on the battlefield. He was lawfully living in the United States. That raises new questions.

Did Congress really intend to give the president the authority to lock up suspected terrorists overseas but not those living here?

If another Sept. 11-like plot was discovered, could the military imprison the would-be hijackers before they stepped onto the planes?

Is a foreign battlefield really necessary in a conflict that turned downtown Manhattan into ground zero?

Also, if enemy combatants can be detained in the U.S., how long can they be held without charge? Without lawyers? Without access to the outside world? Forever?

These questions play to two of the biggest fears that have dominated public policy debate since Sept. 11: the fear of another terrorist attack and the fear the government will use that threat to crack down on civil liberties.

"If he is taken to a civilian court in the United States and it's been proved he is guilty and it's been proved there's evidence to show that he's guilty, you know, he deserves what he gets," his brother, Mohammed al-Marri, said in a telephone interview Friday from his home in Saudi Arabia. "But he's just been taken there with no court, no nothing. That's shame on the United States."

Courts have gone back and forth on al-Marri's case as it worked its way through the system. The last decision, a 2-1 ruling by a 4th U.S. Circuit Court of Appeals panel, found that the president had crossed the line and al-Marri must be returned to the civilian court system. Anything else would "alter the constitutional foundations of our Republic," the judges said.

The full appeals court is reviewing that decision and a ruling is expected soon. During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war.

"What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?" Judge William B. Traxler asked.

"Yes, your honor," Justice Department lawyer Gregory Garre replied.

The court seemed torn.

One judge questioned why there was such anxiety over the policy. After all, there have been no mass roundups of citizens and no indications the White House is coming for innocent Americans next.

Another judge said the question is not whether the president was generous in his use of power; it is whether the power is constitutional.

Whatever the decision, the case seems destined for the Supreme Court. In the meantime, the first military trials are set to begin soon against detainees at Guantanamo Bay. Al-Marri may get one, too. Or he may get put back into the civilian court system. For now, he waits.
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superdave · May 27, 2008

Re: US residents in military brigs? It's war...

dudes name is Ali Saleh Kahlah al-Marri...no need to get your panties in a bunch...worry when they hold someone named bill jones in their cells.

AeroJonesy · May 28, 2008

Re: US residents in military brigs? It's war...

I'd hate to be a government lawyer and have my job depend on defending the government's position.

BobCox2 · May 28, 2008

Re: US residents in military brigs? It's war...

That sucks, it the old days they would just get a Involuntary Psychiatric Evaluation and Commit them for the duration of the war. Much cleaner legally. The current position is indefensible.

SSNLDO · May 28, 2008

Re: US residents in military brigs? It's war...

Hmm, seems one of the main arguments is "where is the battlefield"? Traditionally, a battlefield is where the tanks and grunts are, with terrorism, the battlefield has many facets, the internet, Iraq, Afganistan, and our own backyard. The terrorists will happily utilize any weakness to expand their idealogy. London bombings and the World Trade center should be good evidence that the battlefield is no longer "traditional". I would have to say that I believe getting the bad guys before they get us is OK with me.
Wasn't it Sun Tzu that said take the battle to the enemy? Or conversely, the best defensive is an offense (football analogy).

jmervyn · May 28, 2008

Re: US residents in military brigs? It's war...

It is a pretty tough question, actually. We're predisposing this guy as an actual enemy agent, without knowing with absolute certainty that he really <is> one. We can't inherently treat him as an enemy agent, because of the blurring of enemies and illegal combatants. For all we know, he might be a home-grown jihadist with delusions of grandeur; those phone calls and e-mails would be key to proving otherwise.

However, there <is> a concerted effort to screw up the Bush administration using this sort of legalese. In fact, it is to the detriment of any who might actually be innocent; many of these cases would have already been handled by UCMJ (which is better than civilian law) but for the maneuvers by politically motivated legal groups. Luckily, many of those fled in horror once they found out they wouldn't be allowed to grandstand in public. There's no legitimate reason to try these people in U.S. civilian courts, but the argument can be made because of the claim of ambivalence about this being a war.

Yaboosh · May 28, 2008

Re: US residents in military brigs? It's war...

There's no legitimate reason to try a US citizen in a civilian court? What what what?

WildBerry · May 28, 2008

Re: US residents in military brigs? It's war...

SSNLDO said: ↑

Hmm, seems one of the main arguments is "where is the battlefield"? Traditionally, a battlefield is where the tanks and grunts are, with terrorism, the battlefield has many facets, the internet, Iraq, Afganistan, and our own backyard. The terrorists will happily utilize any weakness to expand their idealogy. London bombings and the World Trade center should be good evidence that the battlefield is no longer "traditional". I would have to say that I believe getting the bad guys before they get us is OK with me.
Wasn't it Sun Tzu that said take the battle to the enemy? Or conversely, the best defensive is an offense (football analogy).
Click to expand...

He also said it's not best not to fight at all.

Not that it's necessarily an option here, just sayin'.

PlagueBearer · May 28, 2008

Re: US residents in military brigs? It's war...

Yaboosh said: ↑

There's no legitimate reason to try a US citizen in a civilian court? What what what?
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He's not a citizen.

PFSS · May 28, 2008

Re: US residents in military brigs? It's war...

Do the right to a fair trial only apply to citizens?

I was under the impression that a lot of the constitution applied to anyone in the US, not just citizens. With the citizen-only bits being mainly voting rights?

Or is that wrong?

Dondrei · May 28, 2008

Re: US residents in military brigs? It's war...

AeroJonesy said: ↑

I'd hate to be a government lawyer and have my job depend on defending the government's position.
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How is Gonzales doing these days?

S Z · May 28, 2008

Re: US residents in military brigs? It's war...

Dondrei said: ↑

How is Gonzales doing these days?
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Last I heard, he was having a tough time of it.

SaroDarksbane · May 28, 2008

Re: US residents in military brigs? It's war...

One judge questioned why there was such anxiety over the policy. After all, there have been no mass roundups of citizens and no indications the White House is coming for innocent Americans next.
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This coming from a judge?

Damn, we're even more screwed than I thought.

jmervyn · May 28, 2008

Re: US residents in military brigs? It's war...

Yaboosh said: ↑

There's no legitimate reason to try a US citizen in a civilian court? What what what?
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Even if his citizenship was legitimately obtained, he's an illegal combatant or spy - therefore no civilian court.

PFSS said: ↑

Do the right to a fair trial only apply to citizens?
Click to expand...

Of course not. But the difference that leftists are screaming about is that UCMJ trials are more than fair, but they're not subject to the same filthy gamesmanship which civilian trials are. That's the cause of the desperate efforts to portray UCMJ (and tribunal trials using UCMJ) as kangaroo courts.

PFSS said: ↑

I was under the impression that a lot of the constitution applied to anyone in the US, not just citizens. With the citizen-only bits being mainly voting rights?

Or is that wrong?
Click to expand...

I honestly can't say; I know the issue has been argued both ways. I believe current application of U.S. law is valid for non-citizens unless special circumstances apply, just as you'll be tried in a Turkish court and thrown in a Turkish prison if you offend in Turkey. But that's immaterial, since the issue is the combatant status (and also the reason that leftists unceasingly try to pretend that terrorism is exclusively a criminal matter).

PFSS · May 28, 2008

Re: US residents in military brigs? It's war...

jmervyn said: ↑

Of course not. But the difference that leftists are screaming about is that UCMJ trials are more than fair, but they're not subject to the same filthy gamesmanship which civilian trials are.
Click to expand...

So why is there a system of trials for the civilian populan if the military trials are ok?

That's the cause of the desperate efforts to portray UCMJ (and tribunal trials using UCMJ) as kangaroo courts.
Click to expand...

The last convicion I saw it seemed the guy was basically told 'plead guilty and you're out in 6 months, plead innocent and some judges appointed by us will decide if you are guilty and then sentence you to 25 years'.

I honestly can't say; I know the issue has been argued both ways. I believe current application of U.S. law is valid for non-citizens unless special circumstances apply, just as you'll be tried in a Turkish court and thrown in a Turkish prison if you offend in Turkey. But that's immaterial, since the issue is the combatant status (and also the reason that leftists unceasingly try to pretend that terrorism is exclusively a criminal matter).
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What happened to 'innocent until proven guilty'? Someone surely can't be given the status of 'enemy combatant' if their guilt of being one is not proven in court?

I would have thought that if there was decent evidence that if he was an enemy combatant then surely they would have managed to prove it in the last 7 years or so?

Dondrei · May 28, 2008

Re: US residents in military brigs? It's war...

There's no such thing as an illegal combatant. Or a legal one.

llad12 · May 28, 2008

Re: US residents in military brigs? It's war...

"Enemy combatant" is little more than legal drivel dreamed up by jaded administration lawyers to strip away the rights of the accused. This arbitrary status denies the accused the right to seek counsel; to know what charges are being brought against him; to obtain an expedient trial, and to face his accusers in a court of law ... with a right to be judged by a jury of his peers.

If we really live in the land of the free, then everyone should have these rights. They are the rights of free men ... guaranteed since Magna Carta in the 13th century.

jmervyn · May 28, 2008

Re: US residents in military brigs? It's war...

PFSS said: ↑

So why is there a system of trials for the civilian populan if the military trials are ok?
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posse comitatus, of course. We don't <need> to have a huge military justice system to deal with traffic infractions and divorce court.

PFSS said: ↑

The last convicion I saw it seemed the guy was basically told 'plead guilty and you're out in 6 months, plead innocent and some judges appointed by us will decide if you are guilty and then sentence you to 25 years'.
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And the last jury I sat on, I helped "hang" to keep a recidivist drunk driver off the street. What's your point here, other than distraction?

PFSS said: ↑

What happened to 'innocent until proven guilty'? Someone surely can't be given the status of 'enemy combatant' if their guilt of being one is not proven in court?
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Don't be silly, of course they can. It has to do with the circumstances of their arrest. Mind you, I'm not considering <this guy's> status as an illegal combatant, nor the disgusting hash that has been made of the principle of a speedy trial. In fact, there were past releases of Guantanamo captives who really were "captured" just for financial gain of the would-be bounty hunter. Of course, even some of those were hyper-sensitive, as they involved rendition to some countries where the captive would likely be "disappeared". Others, as I'm sure you'll know, have been <recaptured> on the battlefield.

PFSS said: ↑

I would have thought that if there was decent evidence that if he was an enemy combatant then surely they would have managed to prove it in the last 7 years or so?
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I don't have the facts at hand, but many of these trials have basically been put on hold due to the legal shenanigans used to generate as much scandal as possible. Thankfully, showboats like Ramsey Clark and Ron Kuby ran screaming from them once they found out there was so little publicity involved. Otherwise, we'd have seen multiple incidents similar to Lynne Stewart's trial.

llad12 said: ↑

"Enemy combatant" is little more than legal drivel dreamed up by jaded administration lawyers to strip away the rights of the accused.
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Couldn't have said it better myself; damn those fasisstists! [/sarcasm]

Johnny · May 28, 2008

Re: US residents in military brigs? It's war...

When investigators looked through his computer files, they found information on industrial chemical suppliers, sermons by bin Laden, how-to guides for making hydrogen cyanide and information about chemicals labeled "immediately dangerous to life or health," according to Rapp's court filing. Phone calls and e-mails linked al-Marri to senior al-Qaida leaders.

In early 2003, he was indicted on charges of credit card fraud and lying to the FBI
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I'm sure he was just looking for an apple pie recipe.

This reminds me of when you read in the news "2 Swedish citizens arrested in [random tubulent islamist region] While on vacation.

You think to yourself of poor Mr and Mrs Svensson being arrested while on some tropical vacation for buying icecream or something.

Then you read further and think "Wait a second. That's not mr and mrs Svensson. That's mister Muhammed and Mr Amir... Why are they on vacation in some war torn 3rd world country? And why are there pictures of them holding AK-47's and proclaiming death to america?

This guy is guilty as sin.

S Z · May 28, 2008

Re: US residents in military brigs? It's war...

You'll note that the term 'unlawful combatant' is not in use anywhere on the Geneva Conventions, and while it has been used in cases relating to the Conventions the interpretation of the term has varied wildly. Essentially, any individual or group which a nation believes doesn't warrant POW status is thrown in there as an excuse to suspend rights they would have under that status.

There is no reason that this status cannot apply to US Residents because it has never been assured that the Constitution fully applies to non-US Citizens. In addition, this status and recent Acts of Congress also mean that they don't have all of the rights apportioned to a defendant in a Court Martial. Hence, conceptually at least, the US administration can do pretty much whatever it wants in custody and at trial (including to the extent that were it a domestic trial we should find it unfair) and it is all perfectly legal.

For a historical perspective on the term and this 'gap' between Articles 3 and 4 of the Geneva Conventions check out Martens Clause, stated by a Russian before they went all pinko. It has often been used as a means of understanding the rights enshrined by international treaties such as the GC in international court.

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