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Friday, June 15, 2007

Habeas Corpus's Fork in the Road

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
–Magna Carta, this day, 1215


May the government declare a U.S. resident an enemy combatant, throw him in a military prison indefinitely, and never charge him with a crime—all without judicial review?

The Bush administration says yes. But in a key ruling (pdf) the other day, a three-judge panel of the U.S. Fourth Circuit Court of Appeals resoundingly said no. If it withstands further appeal, the decision will be a timely affirmation of the limits of executive power and the constitutional priority of civilian over military rule. Thanks, judges, we needed that.

The government alleges that Kahlah al-Marri, a married student at Bradley University in Peoria, Ill., and a citizen of Qatar (a country with which the administration is not at war), is an al Qaeda sleeper agent who volunteered for a martyr mission in the United States. He was initially charged with criminal possession of credit card numbers and making false statements to the FBI and on bank forms. But when he asked the court to suppress evidence on grounds he was tortured, the administration moved to dismiss the charges, declared him an enemy combatant, and put him on a naval brig in South Carolina.

That, the appeals court says, is illegal and unconstitutional. Even assuming the truth of the government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri, Judge Diana Gribbon Motz wrote in the 2-1 majority opinion. If the government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian (emphasis added). Judge Motz cites precedents dating back to the nineteenth century affirming that all U.S. residents, citizens and noncitizens, have rights, especially due-process rights, recognized by the Constitution. (The narrow exception for enemy combatants who are foreign citizens puts the burden of proof on the government and permits only limited detention pending deportation.)

The decision is important because the Military Commissions Act, passed last year, purported to abolish habeas corpus for aliens. The court said, however, that this provision applies not to civilians living in the United States, but only to detainees at Guantanamo Bay, Cuba, who were apprehended in Afghanistan and other foreign locations. In recent enactments, the court said, Congress sought . . . to preserve the rights of aliens like al-Marri, lawfully residing within the country with substantial, voluntary connections to the United States, for whom Congress recognized that the Constitution protected the writ of habeas corpus. As the court noted, the enemy combatant declaration does not assert that al-Marri: (1) is a citizen, or affiliate of the armed forces, of any nation at war with the United States; (2) was seized on or near a battlefield on which the armed forces of the United States or its allies were engaged in combat; (3) was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or (4) directly participated in any hostilities against United States or allied armed forces.

Thus al-Marri can’t be an enemy combatant, and the Bush administration has no constitutional or statutory power to declare him one. That is no small matter.

This does not mean that al-Marri must be set free, Judge Motz continued. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely.

But [the judge said] the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians—let alone imprison them indefinitely. . . . To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them enemy combatants, would have disastrous consequences for the Constitution—and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension [habeas corpus] Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. . . . We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic. [Emphasis added.]


The importance of the centuries-old, hard-won principle of habeas corpus as a bulwark against tyranny cannot be exaggerated—for what good is a bill of rights, no matter how immaculate, if those whom the government imprisons may not publicly contest their detention? Isn’t the absence of habeas corpus a defining characteristic of despotism?


Not Over Till It’s Over

This case is not over. The Bush administration will ask the full appeals court to hear it, and whatever happens there, the case will most likely go to the U.S. Supreme Court, where anything is possible. Al-Marri is an individual who trained at Osama bin Laden’s terrorist training camp in Afghanistan. “In the summer of 2001, he met with Khalid Shaykh Muhammed, the mastermind of the September 11th attacks, and entered the United States just before September 11 to serve as an Al Qaeda sleeper agent and to explore methods of disrupting the U.S. financial system,” the Justice Department said.

Well, then, do what used to be expected of limited constitutional republics: file criminal charges and shoulder the burden of proving the defendant guilty beyond a reasonable doubt before a jury.

Some find it tempting to relax the traditional protections of the accused in exceptional cases. But it’s worth reminding ourselves, on this the 792nd anniversary of Magna Carta, that preventing tyranny requires us to resist that temptation—especially in such cases. (For modern times, the most enduring legacy of the Magna Carta is considered the right of Habeas Corpus [Wikipedia].) In defense of that proposition, I can do no better than to quote Robert Bolt’s eloquent brief against arbitrary power in A Man for All Seasons.

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

  • Sheldon Richman is the former editor of The Freeman and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America's Families and thousands of articles.