Dispatches from the Creation Wars

The Wish for Kings

Here’s a disturbing article about the case of Ali Saleh Kahlah al-Marri, a man alleged to be an Al Qaeda operative who was arrested six years ago after establishing residency in the US. The government says he was a sleeper agent who was plotting attacks on the US and they may well be right. But if they are, and they have the evidence, why are they so reluctant to prove it in court?

He was first arrested in December 2001. In early 2003 he was charged with credit card fraud and lying to the FBI. But in June 2003, those charges were withdrawn, Bush declared him an “enemy combatant” and he was transferred to a military prison where he has been held ever since without a trial. And the Bush administration wants to keep it that way. Here’s the disturbing part:

To justify holding him, the government claimed a broad interpretation of the president’s wartime powers, one that goes beyond warrantless wiretapping or monitoring banking transactions. Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a resident and hold him in prison without charge, indefinitely.

But this is just the beginning. A lawsuit filed on his behalf is now in the 4th circuit court of appeals awaiting an en banc ruling. A three judge panel of the 4th circuit has already ruled that the president lacks the authority to hold al-Marri forever without ever charging him with anything, as they did earlier in the Hamdi case. And in the oral arguments before that panel, the DOJ argued for even broader authority:

The full appeals court is reviewing that decision and a ruling is expected soon. During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war.

“What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?” Judge William B. Traxler asked.

“Yes, your honor,” Justice Department lawyer Gregory Garre replied.

Staggering. Absolutely staggering.