“Enemy Combatant” to Get US Trial

Ali Saleh Kahlah al-Marri holds dual US/Qatari citizenship. In December 2001, he was arrested for credit card fraud and making false statements to the FBI in the course of their investigation of the September 11 murders. Then in 2003, President Bush declared him an “enemy combatant” and moved him to the South Carolina Navy brig. He has had no trial, no legal protection of his rights as an American citizen. The Obama administration has announced that it will charge him, that he will finally get a trial. This journal has been almost rabid in demanding this, but a danger to American freedoms remains because of the timing of this change.

The Bush administration maintained to the bitter end that the president has the authority to declare anyone (including US citizens like Mr. al-Marri) “an enemy combatant.” Once that happens, the government can lock up anyone for all time without any recourse. This legal theory has more in common with Louis XIV, Josef Stalin or Pol Pot than with the US Constitution, but the assertion of such presidential power remains.

Naturally, Mr. al-Marri deserves a trial and should have had an acquittal or conviction years ago. On his behalf, the ACLU filed a habeas corpus lawsuit that has dragged through the courts. In April, it was set to go before the Supreme Court. This could have once and for all settled just what the president can and cannot do when it comes to locking people up and throwing away the key.

That likely will not happen now. Because Mr. al-Marri is to get his trial at last, the ACLU lawsuit is moot. The Supremes have no obligation to continue with the matter. The Obama Justice Department has moved to dismiss the case as a moot issue. ACLU lawyer John Hafetz said, “Our view is this is a fundamental issue that's basic to our system. They're [the DOJ] just avoiding review and maintaining Bush era power. That does not honor the rule of law.”

Given the current composition of the Supreme Court, it may be best that the case proceed no farther. One wouldn't bet more than a couple of dollars on the likes of Justices Scalia and Thomas to find for the Constitution and against the Bushevik power grab. At the same time, there is this unrefuted legal theory that the president can simply lock up anyone by declaring him or her an “enemy combatant.” That is totalitarianism.

© Copyright 2009 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Fedora Linux.

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