The Bush administration's latest, and most appalling, assault on habeas corpus.

The law, lawyers, and the court.
Nov. 30 2006 4:41 PM

Throw Him in the Brig!

The Bush administration's latest, and most appalling, assault on habeas corpus.

Ali Saleh Kalah al-Marri. Click image to expand.
Ali Saleh Kahlah al-Marri

In his book Never Again, former Attorney General John Ashcroft describes the arrest five years ago of Ali Saleh Kahlah al-Marri at his home in Peoria, Ill. Al-Marri was picked up as a material witness in the 9/11 investigation and charged with credit-card fraud and making false statements to the FBI. His case was a month away from trial in federal court. And then it wasn't. Al-Marri "rejected numerous offers to improve his lot by cooperating with the FBI investigators and providing information," Ashcroft writes, and "consequently," President Bush declared him an enemy combatant.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Ashcroft observes that under the laws of war, an enemy combatant can even be killed on the spot. The government held its fire in Peoria. But it is intent on holding al-Marri "without charge or trial until the end of the war," as Ashcroft puts it. And the government thinks it has a new tool for doing so: the Military Commissions Act of 2006.

This is the law that Congress rushed to pass in the fall to strip the Guantanamo detainees of their rights to challenge their detentions by bringing habeas corpus petitions in federal court. The MCA could have been limited to people picked up outside the United States. But its language is broader: It bars habeas claims by any noncitizen determined by the government to be an enemy combatant (or "awaiting such determination"). This, the government argues, means that it could pick up al-Marri in Peoria one day and the next day stick him in a military brig indefinitely, with no chance of redress in court. And if it can do this to al-Marri, then apparently it can do the same to any other immigrant who gets on a terrorism watch list. (And we know how unreliable such lists can be: See the news today about the $2 million settlement the government is paying Brandon Mayfield, the Oregon lawyer it wrongly jailed in connection with the 2004 Madrid bombings.)

The government's handling of al-Marri is an utter departure from historical practice. Noncitizens in the United States have constitutional rights, including the right to due process if they face criminal charges. When they're convicted, they routinely file habeas petitions, as they have for centuries. The Supreme Court explained all of this in a 2001 case, INS v. St. Cyr, in which the government wanted to deport an immigrant convicted of a crime without any judicial review. The court forbade that, saying that the constitution protects the rights of "all persons in the United States."

The St. Cyr decision pointed out that parting immigrants from their habeas rights creates serious constitutional problems. The constitution says that Congress can suspend habeas rights only "when in Cases of Rebellion or Invasion the public Safety may require it." The writ has been suspended only four times in U.S. history; the last one was in 1941 in Hawaii right after the attack on Pearl Harbor, according to this brief.

Congress didn't say anything about a rebellion or invasion when it passed the MCA. How could it have? No one has been storming the shores or fomenting insurrection lately. So when the 4th Circuit Court of Appeals hears al-Marri's case in January, the government will probably argue that al-Marri's habeas rights haven't really been suspended—because the MCA gives him an alternative route for challenging his detention. What al-Marri gets instead is a hearing before a combatant status review tribunal, at which the government gets to put on evidence that includes hearsay and coerced testimony, testimony that al-Marri doesn't even get to hear. If the tribunal declares he is an enemy combatant, like the president says, al-Marri can appeal to the U.S. Court of Appeals for the D.C. Circuit. It's not clear what the court would do with an appeal, because it hasn't decided a relevant case yet.

So the 4th Circuit—and eventually the Supreme Court—will have to decide whether a CSRT and undefined D.C. Circuit review are the equivalent of time-honored, much-cherished habeas rights. That is a big question that also applies to the Guantanamo detainees. (Though they don't have the advantage of having been arrested in Peoria.)

Since the whole idea of a habeas petition is that you get to present facts in order to explain why you're innocent, or why your prosecution was illegal, it's hard to see how any review that rests on a CSRT can come anywhere close to equaling habeas rights. CSRTs are one-sided justice—the government's side. Listen to these tapes of them. Appeals courts like the D.C. Circuit don't take their own testimony. They rely on the record that's already been developed by the trial court, or an administrative agency like the INS, or, in these cases, the CSRT. So if the record in the CSRT is one-sided, the D.C. Circuit can't fix things for al-Marri by conducting its own do-over. There are other problems as well: If a CSRT were to acquit a detainee, it's not clear what would happen to him if the government refused to let him go. What's the remedy?

That's not a question, however, that al-Marri should have to find out the answer to. He should stay in federal court, where people picked up in Peoria belong.

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