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New Administration Re-Examining Divine Right Of Kings

By blueness

A month or so ago I confidently predicted in this diary that some time this spring the United States Supreme Court would rule in the case of Ali Saleh Kahlah al-Marri that a president may not scoop people off US soil and imprison them indefinitely Because He Feels Like It.

Well, so much for my wizardry. For it now appears that the high court may not hear the case at all. Though this is good news. Because President Obama has directed his Solicitor General to seek a 30-day delay in the case in order to "ensure the same kind of legal and factual review is undertaken of the al-Marri case that is being undertaken of the Guantanamo cases."

Those who are inclined to trust that our new boss really will mark a change from our old boss believe this: "[t]he restoration of habeas corpus by executive order and this review of the al-Marri case suggests that this will be resolved amicably and within the confines of our best ideals."  
Al-Marri was arrested on December 12, 2001, in Peoria, Illinois, where he was living with his wife and five children, and pursuing a graduate degree in computer science.

The George II regime lied that al-Marri was part of an Al Qaeda "sleeper cell" intent on mass murder and the disruption of the US banking system. It lied that he frequented an Al Qaeda training camp and met with Osama bin Laden and Khalid Sheik Mohammed. It lied that he was "al-Qaeda's senior operative in the United States" and that he "offered to be an al Qaeda martyr."

Because these claims are lies, al-Marri has never been charged with any such crimes. Instead, he was initially charged with credit-card fraud and lying to federal agents. When, in June 2003, his trial on these charges drew near, George II signed a one-page order declaring al-Marri an "enemy combatant" and directing his transfer to, and indefinite imprisonment in, a Navy brig in South Carolina. There he was held incommunicado and interrogated for more than a year. There he was tortured.

On June 11, 2007, a three-judge panel of the Fourth Circuit Court of Appeals ruled 2-1 that George II lacked legal authority to imprison al-Marri without charges.

On July 15, 2008, however, a divided en banc panel of the Fourth District US Court of Appeals, the federal circuit court most deeply corrupted by Federalist Society-style "true believers," hallucinated that congressional passage of the September 18, 2001 Authorization for Use of Military Force conferred upon George II the power to confine al-Marri in one of his several Bastilles. The Court thereby disinterred The Divine Right Of Kings, discredited in Anglo-American jurisprudence for some 793 years.

Al-Marri's attorneys appealed to the Supreme Court, which agreed to hear the case, scheduling oral arguments for March. As of yesterday, however, that schedule has now been delayed.

Lawyers for al-Marri, who has been held in a US military prison since 2003 without charge after then-president George W. Bush declared him an enemy combatant, filed briefs for the review on Wednesday, defense counsel Jonathan Hafetz told AFP.

"The government brief was due February 20 but we have already agreed, at the solicitor general's request, to a 30-day extension for that," Hafetz said, adding that he had not seen the executive order.

The 30-day delay would give the Obama administration until around March 20 to file briefs and the case would be reviewed by the Supreme Court in April, Hafetz said.

"We have agreed to that modest delay but would vigorously oppose any further delay that would push the case beyond the current Supreme Court term which ends in June," Hafetz said.

"This is someone who has been detained for five and a half years without charge in solitary confinement. The detention is plainly illegal and we are confident that upon review the Supreme Court will strike it down," he said.

That's what I figured, too, and predicted in my December diary.

But with the change in administrations, several other options present themselves.

Since George II scooped up and interred al-Marri in the first place simply by pulling some "legal" justification out of his anal orifice, Obama could extract from some other bodily region something like releasing al-Marri for deportation to Qatar, which has offered to accept him.

The Obama administration could also, as did California Attorney General Jerry Brown in the case involving California's Proposition 8, switch sides, and file briefs in opposition to the Appeals Court decision, basically siding with al-Marri's attorneys, conceding that, yes, The Divine Right Of Kings should remain dead and buried, that a president does not have the right--AUMF or no--to grab somebody off the streets and lock him away till Whenever. This would be a raw, bold move, but not one that is unprecendented--previous incoming administrations have occasionally reversed field on cases originally pursued by outgoing administrations. And Obama has "appointed a fierce critic of those [detention] policies to head the Office of Legal Counsel, which under Bush drafted the legal arguments supporting them."

Choosing to retain, support, argue before the high court, the George II position, would be unpalatable. For "under current US law, al-Marri could be held in the military prison without charge 'for the rest of his natural life,' according to Hafetz."

A kink in this case is that arriving at a resolution that fails to pursue al-Marri's appeal into the United States Supreme Court is also, at root, unpalatable, in that it would leave as precedent, at least in the Fourth Circuit, the divided decision that permitted George II to snatch and sock away al-Marri indefinitely. For:

At issue in the case is the Bush administration's argument that the president has the power to order legal residents of the United States seized and held indefinitely without being charged with a crime.

And the current state of the law, at least in the Fourth Circuit, is that a president does indeed possess that power. That is really not a ruling one wants left on the books. And the only way to render that ruling nugatory is for it to be overturned by the United States Supreme Court, or disapproved by the Fourth Circuit itself.

I should note that because we are dealing with lawyers, there can also exist (or be invented) probably a half-dozen other ways, unmentioned here, of pursuing, diverting, dropping, or delaying a resolution in this case, and thereby the issues it raises.

As it is occasionally suspected on this blog that I am a starry-eyed worshipper of The One, who will brook no criticism of His Obamaness, let me state here, now, less than 72 hours into his presidency, that on Thursday Obama said a bad, bad thing:

"You have a legal resident (of the United States) who has been detained; he is clearly a dangerous individual," Obama told reporters as he signed an executive order pertaining directly to al-Marri's case.

Mr. President, with all due respect, I think that characterization is horsehsit. And I think that once your people have reviewed al-Marri's case, and related that review to you, you will come to agree.

The good thing Obama said on Thursday was this, via executive order:

The President instructed the Attorney General, the Secretaries of Defense, State, and Homeland Security, and the Director of National Intelligence to conduct a review of the status of the detainee Ali Saleh Kahlah al-Marri who is currently held at the Naval Brig in Charleston, South Carolina. This will ensure the same kind of legal and factual review is undertaken of the al-Marri case that is being undertaken of the Guantanamo cases.

With Ali Saleh Kahlah al-Marri--as with so many other human beings made to suffer under the callous George II regime--President Obama, and his people, are presented with a chance to do the right thing. I yearn for him, and them, to do just that.

Full post as published by Never In Our Names on January 23, 2009 (boomark / email).