when the administration ignores the USSC

[DKSuddeth]

what to do? DoJ defies Supreme Court

CHARLESTON, S.C. - A month after the U.S. Supreme Court said people held as enemy combatants may challenge their detention, a defense lawyer still is trying to meet with a man who has been held for more than a year at the Charleston Naval Consolidated Brig.

Attorney Andy Savage filed a motion in federal court last week demanding to see Ali Seleh al-Marri, a native of Qatar who has been held without access to family, friends or attorneys.

"The Supreme Court's decision is clear: There's no wiggle room," Savage said Monday.

Last month, the U.S. Supreme Court ruled it unconstitutional to hold someone indefinitely and said detainees should be able to challenge the government.

"He is in fact a civilian, not a combatant," said Savage's motion, which also demands government either release al-Marri or charge him with a crime.

Citing the Supreme Court decision, al-Marri's attorneys had asked Assistant Solicitor General David Salmons earlier this month about seeing their client and were told the government still could not allow him to see a lawyer, according to the latest motion.

Mark Corallo, a spokesman for the Justice Department, refused to comment.

Al-Marri has not received as much publicity as two other brig detainees, Yaser Hamdi, the man whose case led to the Supreme Court decision, and Jose Padilla. The two others were both born in the United States.

In December 2001, federal agents searched al-Marri's apartment in Illinois and allegedly found a computer with lectures by Osama bin Laden, bookmarked Web sites about industrial chemicals and hundreds of credit card numbers.

The government alleged al-Marri, who was studying at Bradley University in Peoria, Ill., was a sleeper cell operative and that calls were made from his cell phone number to an al-Qaida lieutenant who sent money to the Sept. 11 hijackers.

He was charged with credit card and bank fraud. Al-Marri was allowed to see his attorney and was supposed to go to trial last year, but prosecutors dropped the charges and the government designated him an enemy combatant.

 

[Annie]

This was based on Hamdi v Donald Rumsfeld. I've been reading that it might actually have increased the power of the executive. I thought WSJ had something, but I'm not finding it, yet . Scroll down to Thurs., July 1. Just Once More is the title.

http://www.nationalreview.com/thecorner/04_06_27_corner-archive.asp#034703

what to do? DoJ defies Supreme Court

CHARLESTON, S.C. - A month after the U.S. Supreme Court said people held as enemy combatants may challenge their detention, a defense lawyer still is trying to meet with a man who has been held for more than a year at the Charleston Naval Consolidated Brig.

Attorney Andy Savage filed a motion in federal court last week demanding to see Ali Seleh al-Marri, a native of Qatar who has been held without access to family, friends or attorneys.

"The Supreme Court's decision is clear: There's no wiggle room," Savage said Monday.

Last month, the U.S. Supreme Court ruled it unconstitutional to hold someone indefinitely and said detainees should be able to challenge the government.

"He is in fact a civilian, not a combatant," said Savage's motion, which also demands government either release al-Marri or charge him with a crime.

Citing the Supreme Court decision, al-Marri's attorneys had asked Assistant Solicitor General David Salmons earlier this month about seeing their client and were told the government still could not allow him to see a lawyer, according to the latest motion.

Mark Corallo, a spokesman for the Justice Department, refused to comment.

Al-Marri has not received as much publicity as two other brig detainees, Yaser Hamdi, the man whose case led to the Supreme Court decision, and Jose Padilla. The two others were both born in the United States.

In December 2001, federal agents searched al-Marri's apartment in Illinois and allegedly found a computer with lectures by Osama bin Laden, bookmarked Web sites about industrial chemicals and hundreds of credit card numbers.

The government alleged al-Marri, who was studying at Bradley University in Peoria, Ill., was a sleeper cell operative and that calls were made from his cell phone number to an al-Qaida lieutenant who sent money to the Sept. 11 hijackers.

He was charged with credit card and bank fraud. Al-Marri was allowed to see his attorney and was supposed to go to trial last year, but prosecutors dropped the charges and the government designated him an enemy combatant.

Tried to do a bit of checking on this, here is one take:

Mark is of course right that Hamdi featured competing constitutional issues, as many of the high Court’s cases do. But I respectfully disagree that it is unlikely Thomas would have objected to a congressional suspension of habeas corpus.

Regarding rebellion or invasion, which is the constitutional predicate for such a suspension, Thomas writes (in his Hamdi dissent at p. 16): “[T]his condition might not obtain here [i.e., in Hamdi’s case] or during many other emergencies during which detention authority might be necessary.” Thomas’s earlier reliance on Justice Jackson doesn’t sway me either, because Jackson was talking about the primacy of executive and legislative power in the areas of foreign affairs and national security, not habeas corpus. That makes sense: If a national security crisis could empower the president unilaterally to suspend habeas corpus, the Suspension Clause (and of course habeas) would be a nullity. This would be contra-textual--something I would think Thomas in particular would deem unacceptable (for the reasons elaborated on by Randy). Besides, habeas corpus is a judicial writ, so the judiciary cannot be expected to step aside with respect to it as they should generally on matters of foreign affairs and national security.

Since Thomas thus cannot ignore the Suspension Clause, he instead construes it as having no (or at best dubious) application on the facts of this case--a construction accomplished by an overly stingy construction of the word “invasion” (i.e., he suggests that the 9/11 attacks cannot at this stage be considered an “invasion,” so there is no need to consider whether Congress could have suspended the writ). If Thomas is right, that would necessarily mean the framers thought it was important to make express contingencies regarding liberty for only some conceivable national emergencies (invasion and rebellion) but not all of them. This seems unreasonable to me. In my book (as evidently in Justice Scalia’s), 9/11 remains an invasion; that it happened 3 years ago rather than 3 days ago is immaterial--what matters is that we are still directly imperiled by it.

Also, I can’t agree that because the government conceded that Hamdi had access to the court, habeas was not at issue in the case. Habeas is not just a procedural right of access to court; it is, in addition, a substantive right to be at liberty if one’s detention violates the Constitution. If I am right about that, Scalia’s vision is both more democratic and more faithful to the Constitution than Thomas’s. That is, Thomas says in a time of crisis the executive branch may detain anyone it wishes to, and the court cannot review. Scalia, on the other hand, says the executive can detain anyone it wishes to as long as the people’s representatives have approved by suspending habeas corpus, but if they have not, the detention is not legal and the detainee must either be freed or prosecuted in the criminal justice system. As I said in yesterday’s article, I think Scalia’s argument may be unassailable if the only question were what is constitutionally more sound. But I don’t think Scalia’s argument is practical politically, and in a national security context that is a fatal flaw.

In most instances where constitutional fidelity would cause practical political difficulty (e.g., where a faithful reading of the 14th Amendment would require politicians to oppose affirmative action programs, or a faithful reading of the First Amendment would cause presidents to veto unconstitutional campaign finance reform schemes), I say to hell with practical politics--the oath government officials take is to the Constitution, not to expedience. Yet, I find myself unable to side with Scalia in Hamdi, even though I think he’s probably right, because I'm convinced that under his result our troops would be placed in mortal peril (i.e., if the politcal branches decline to act, Scalia’s view would either free terrorists or cause terror trials that educate terrorist organizations).

The beauty of Thomas’s position, is that even if the politicians lack spine to suspend the writ, the terrorists are still detained and there are no trials. But the problem with it is: Has he effectively repealed the Suspension Clause and set a dangerous precedent that is more likely than Scalia’s theory to result in innocent people being detained without trial.

In the plurality’s vision, which carried the day in Hamdi, we get less national security than Thomas would allow and less liberty than Scalia would allow. If I had to vote on which of the three possibilities (plurality, Thomas or Scalia) is the best thing for the country right this minute, I would vote, like Mark, for Thomas’s view. BUT, I would do so knowing I’d have a very hard time answering this question: Haven’t I just voted to repeal the Suspension Clause? That is why I have sympathy for the plurality’s balancing act, even though I acknowledge Mark is completely correct that Thomas’s position makes our country much safer.

One final thing ought in fairness to be conceded given my criticism of Baude: I am probably guilty of a more important inconsistency. I previously reported on combatants a couple of times (here and here. In neither of these articles did I mention, let alone deal with, the Suspension Clause, which I now am portraying as a big problem.

In my defense, my purpose in those pieces was primarily to report on what had happened, first in the Padilla case and then when the Supreme Court heard argument on all these combatatnts cases; the Suspension Clause did not figure prominently in any of those proceedings. Why? Because I think we all assumed that Ex Parte Quirin, the WWII era case in which the Supremes had upheld detention without trial of an American citizen, would have made any argument based on the Supremacy Clause futile. I don’t think the lower federal courts can be faulted for this (although I certainly wish I had thought to address it somewhere along the way), because they were required to follow Quirin. As the Hamdi opinions demonstrate, however, the Supreme Court is always free to revisit its own precedents, which I think made the Suspension Clause a much more live issue for the justices than it had been for the lower courts.