Tuesday, June 12, 2007

I know you've seen this...

Updated ...and I don't usually spend a lot of time (or sometimes any time) bringing up things that are being more than adequately covered elsewhere, but there is little enough opportunity for good news, so I wanted to take advantage. As the New York Times for June 12 describes it, a federal appeals court delivered
a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism.

The ruling came in the case of Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., who is the only person on the American mainland known to be held as an enemy combatant. The court said the administration may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation.
But it may not, the court ruled, declare civilians in this country to be “enemy combatants” subject to indefinite imprisonment by the military.
“[M]ilitary detention of al-Marri must cease,” Judge Diana Gribbon Motz wrote for the majority of a divided three-judge panel. ...

“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our republic.”
The reach of the case is not that great; only two other people - Yaser Hamdi and Jose Padilla - were in the same situation of being civilians held within the continental US as "enemy combatants." And because of that narrow application, it has no bearing on the prisoners at Guantánamo or any of the US's secret prisons worldwide. (Sidebar: This is the latest news about Padilla's trial.)

However, the decision, the full text of which can be found here in .pdf format, does not stand alone.
“Last Monday, two military judges handpicked to preside over the Guantánamo Bay trials rejected the claim that a presidential order alone was sufficient to give the courts jurisdiction over the detainees,” said Jennifer Daskal, advocacy director of the United States Program of Human Rights Watch. “And today, one of the nation’s most conservative courts squarely rejected the president’s unprecedented assertion that he, alone, could hand out the label of ‘enemy combatant’ without any sort of independent court review.”
It should be noted that the ruling of course has nothing to do with Marri's guilt or innocence. Perhaps he has committed crimes. But if he has, he should be charged and tried, not just disappeared.

And that's the point: It's the principle that's at issue here. The principle of innocent until proven guilty. The principle, even more to the point, that Constitutional rights are just that: rights, human rights, not privileges to be granted or taken away at the discretion of the powerful.

As noted, Judge Motz noted the government had several options regarding Marri, including trying him, deporting him, and holding him as a material witness - as a matter of fact, I'll add, it could even free him if it doesn't have enough actual evidence to charge him.
But the military cannot hold him, Judge Motz wrote. “The president cannot eliminate,” she wrote, “constitutional protections with the stroke of a pen...."
And unless we want to change the first line of that statement attributed to Martin Niemöller to "First they came for the 'enemy combatants,'" we should all be going "a-damn-men."

Footnote: Project Disappeared is "an attempt by diverse human rights organizations and activists to keep the memory of the disappeared alive and search for justice." It's worth a look, especially as we recall that the disappeared include these folks.

Another footnote: The case, as I'm sure you realize, is not over. The administration has already said it will appeal the decision to the full court panel, which in the past has been, let's just call it, not overly hospitable to claims similar to Marri's - specifically, Jose Padilla's. Look for this to wind up at the Supreme Court.

Updated to include the link to the decision; thanks to Glenn Greenwald for the info.

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