Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
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 But in June 2003, those charges were withdrawn, Bush declared him an "enemy combatant" and he was transferred to a military prison where he has been held ever since without a trial.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.
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And, of course, since the open-ended "war on terror" can be extended indefinitely, so can these tyrannical powers.
Posted by: Wes | May 28, 2008 10:13 AM
Just for the sake of argument (because I don't think anyone here will argue that the government's assertion is staggering), let's say that the Judicial branch rolls over on this issue. How could one then differentiate between the USA and a typical police state?
Posted by: Shygetz | May 28, 2008 10:22 AM
Am I alone in thinking this is just fucking wrong?
No, I realize I'm not alone in that, but, really, WTF? Just how many presidents have we had, lately (by lately, I'm thinking last 30 - 40 years) who wouldn't have abused this like a sadist with a crippled puppy?
Posted by: bill | May 28, 2008 10:28 AM
We still refer to our leader as a The President. In a "typical" police state he's usually known as El Presidente.
Posted by: Abby Normal | May 28, 2008 10:50 AM
Really Abby? Wow. All police states are required to speak Spanish, that I did not know. That's one in the eye for the Nazis. -DJ
Posted by: DingoHack | May 28, 2008 11:00 AM
DingoHack - LOL talk about a freudian slip. :) DJ
Posted by: DingoJack | May 28, 2008 11:12 AM
None of them. Jerry Ford would have tripped over it. Jimmy Carter lusted for such power in his heart, but would never actually use it. Reagan forgot he wanted it. Bush the First didn't think it would be prudent. And Clinton tried it, but didn't inhale. So that just leaves W.
Oh, and Nixon would have ripped out Bob Haldeman's heart with an obsidian knife for that type of power.
Posted by: kehrsam | May 28, 2008 11:36 AM
When are we going to stand up to these idiots when they insist we are "at war?" What reasonable defintion of war allows the present usage?
Metaphorical usage and reality should not be confused.
Posted by: BaldApe | May 28, 2008 11:45 AM
Maybe we're headed for a new style of government - a term-limited dictatorship.
Posted by: Taz | May 28, 2008 11:47 AM
What still amazes me is that there never seems to have been any plans to resolve these detentions before Bush leaves office. As far as we can tell, the men at Guantanamo get pumped for information, but their own cases are never reviewed. Apparently the plan all along was to dump this mess in the next President's lap and just walk away. The irresponsibility is just jaw-dropping - I'm hard pressed to recall a comparable dereliction by any former President.
Posted by: Scott Hanley | May 28, 2008 12:13 PM
I think it is now time the rest of the world made it clear to the US that anyone involved in these illegal detentions may face criminal prosecution under international law for failing to abide by international law.
Posted by: John Doe | May 28, 2008 12:27 PM
Sure feels that way. Though with the relaxed rules on the President's ability to declare martial law (Posse Comitatus Act was overturned by National Defense Authorization Act in 2007) my confidence in term limits is not great either.
Posted by: Abby Normal | May 28, 2008 12:36 PM
I am not a lawyer, and I don't play one on TV.
However...Considering that Article I, Section 8 of the Constitution (as we all know) confers the power to declare war on Congress and not on the Executive (that'd be Dubya in this case), and considering that while Congress passed legislation authorizing the use of force it did not actually declare war against Iraq (as far as I know; I could have missed something, but I don't think so), it seems to me that claims of "wartime powers" for the president are on kind of shaky ground.
Now, if someone would just grow the cojones to tell the president and his cronies that.
Posted by: Elaine | May 28, 2008 12:53 PM
I agree that the "time of war" claim is an extremely shaky one. Who precisely are we at war with? Where is the declaration of war? Have there been any international conferences in an effort to negotiate a settlement? Where is the battlefront? Who, precisely, are the enemy combatants? How do we identify them?
Yes, many of these questions are rhetorical, the basic point is, we aren't at war. The closest we had was the invasion of Iraq which the Bush administration declared "Mission Accomplished" back in May of '03, so really, the argument is, once an administration is involved in a war, they get to keep these nifty, unconstitutional powers for the remainder of their term... niiiiice...
Posted by: dogmeatib | May 28, 2008 1:19 PM
Something else just occurred to me. Basically, they're saying, "The president can order people to be taken into custody and etc, etc."
Why is the president ordering people to be arrested? I really doubt he's just waking up in the morning and saying to himself, "You know what? I'm going to have Joseph Blough of XYZ Street, Somewhere, USA, picked up & have them put the 'trodes to his balls. Yeah, that'll be great." At least, I hope he's not. Who knows what god's whispering in his ear at 3:00 AM, though.
Someone is telling him that so-and-so is a danger. Then why the fuck didn't someone tell the right people, like the cops or the FBI to check so-and-so out?
Posted by: bill | May 28, 2008 1:23 PM
War is a tricky thing under US law. Only 5 times in history has the US actually declared war. (War of 1812, Mexican-American War, Spanish-American, World War I, & World War II) However there have been over 125 instances of the US waging war without Congress issuing a formal declaration. Usually it's just an authorization, like with Afghanistan and Iraq.
There are legal precedents that differentiate between engaging in war, levying war, and declaring war. The Executive branch has the power to engage in war without a congressional declaration when there is an imminent threat (among other reasons). Conveniently terrorism provides a perpetual imminent threat (I'll take oxymorons for $500 Alex). So, as in the case of Ali Saleh Kahlah al-Marri, being identified as a terrorist by the Executive creates an "imminent threat," thus giving them the legal authority to exercise war powers and may open them to prosecution for war crimes as well.
So in summary, yes, only Congress has the ability to declare war. But that doesn't prevent the US from legally (under our constitution) waging war without that declaration. It's really a bizarrely fascinating situation.
Posted by: Abby Normal | May 28, 2008 1:42 PM
Two governmental moves of the last 50 years will ensure W gets away with his crimes:
1) pardon of Nixon's actual high crimes and misdemeanors.
2) impeachment of Clinton for private consensual sexual relations.
1- creates a precedence for letting the president be above the law and above its consequences.
2- trivializes and politicizes the impeachment process - thus putting it beyond reach.
W will never be held accountable. I hope I am wrong.
Posted by: SharonB | May 28, 2008 1:44 PM
"War is a tricky thing under US law."
It may well be. International law seems to be clearer. US citizens are obliged to follow international law lest they want to face prosecution in other jurisdictions. It is time Europe made it clear that anyone, no matter how junior, involved in any form of illegal detention or torture is liable to prosecution at the Hague. To that end lists should be compiled of those so involved and arrest warrants issued. Those warrants may not be effective in the US, but they will
place restrictions on where those named can travel. Should they make the mistake of setting foot in Europe they could be arrested.
Posted by: John Doe | May 28, 2008 1:52 PM
Those war precedents don't hold the actual weight of law, however, they're merely the result of Congress not doing anything to stop a president who has over-reached. The Congress and the founders were clear on this issue specifically because they wanted to prevent the kind of warmongering that has become a fixture of U.S. political life. The war making power was denied the presidency specifically to prevent the rise of Caesars, and now presidents aren't considered presidential unless they bomb or invade somebody; This is insane.
This ties into the reasoning behind the irresponsible detentions pointed out by Mr Hanley. Remember, Rove felt he had engineered a paradigm shift and created a decades-long Republican ascendancy. They made no plans to process them because they thought a Republican-appointed Supreme Court would uphold them for the sake of political loyalty. They made no plans to end them while Bush still held office because they believed no one opposed to them ever would.
Chalk it up as yet another example of blind, stupid, elitist, republican arrogance.
Posted by: Julian | May 28, 2008 2:35 PM
The issue of why we, as a people, are so nonplussed about our presidents killing people overseas needs to be examined with just as much dedication, though. I think the real cause for this acquiescence lies in the Indian Wars. These were viewed as purely internal matters for which no declaration of war was needed because, really, they weren't wars at all, more like pest removal. Over time, this blase attitude towards making war on the natives spread to war in general. That's likely not all of the reason for this bizarrely laid-back attitude towards war U.S. citizens have, but its definitely a major part.
Posted by: Julian | May 28, 2008 2:41 PM
bah! That should be "The Constitution and the Founders..." on the third line of the first post.
Posted by: Julian | May 28, 2008 2:42 PM
John Doe, under international law what is the clear(er) definition of war? I'd also be interested to hear more about how US actions may have run afoul international law. I've heard this charge made a few times but never with any details. I freely, and with some shame, admit my ignorance.
Posted by: John Doe | May 28, 2008 3:00 PM
Taz: Maybe we're headed for a new style of government - a term-limited dictatorship.
No, that's a very old one. The Romans did this. That is where the word "dictator" comes from. But they used a 6 month term, not an 8 year one.
Posted by: Captain Button | May 28, 2008 3:01 PM
Sorry, I filled in the wrong name. The above post questioning international law was mine.
Posted by: Abby Normal | May 28, 2008 3:02 PM
Posted by: WScott | May 28, 2008 3:09 PM
"John Doe, under international law what is the clear(er) definition of war? I'd also be interested to hear more about how US actions may have run afoul international law. I've heard this charge made a few times but never with any details. I freely, and with some shame, admit my ignorance."
Essentially for a country to go to war it must be facing an immediate threat from the country it goes to war with. It is hard to see how that would pertain with regards Iraq.
Further, once a country has gone to war it must abide by certain rules regardless of the circumstances that led to that war. The US, as a signatory of a number of treaties and conventions is required to abide by those treaties and is obliged to take steps to ensure that those involved in fighting the war are aware of their responsibilities under those treaties and conventions. There is no concept of an "illegal combatant" under International law, either someone captured during a war is either a prisoner of war, in which case a number of international treaties apply as the conditions in which they are held. If the person in not a prisoner of war then civil law as pertains to the holding power must be applied. In otherwords prisoners taken by the US at a time of war must either be treated as POWs or as civil prisoners like any other civil prisoner within the US. Further international treaty states that it is not the holding power who makes such a determination but a third party, normally the IRC.
further, international law forbids the use of torture, which any definition will include water-boarding.
In addition, international law also makes it clear that anyone involved in breaches of international law can be held to account by third parties. A person involved also cannot abdicate responsibility by claiming they were ordered to do so. Such a defence is not allowed, although allowance can be made for the seniority of the person involved.
Although the US is not a signatory of the agreement setting up the International Criminal Court that does not mean US citizens cannot be brought before the court. It would mean that the US is under no legal obligation to fulfil an arrest warrant issued by that court. However that would not offer protection to a person subject to an arrest warrant in a country that is a signatory.
Whilst I think that countries in Europe should start proceeding at the ICC, I think they should be restricted to those of senior NCO level and above.
Posted by: John Doe | May 28, 2008 3:19 PM
Thanks for the outline. I tried understanding the Geneva Conventions some years ago and found it beyond my grasp. But I think I'll give it another go.
But for now, if I may ask, by international law must a country declare war to be at war, or does simply sending troops qualify? Obviously I'm trying to ascertain whether or not the US is at war under international law.
How would international law apply in the case of al-Marri, a legal US resident, arrested on US soil, and held in the continental US?
Posted by: Abby Normal | May 28, 2008 4:16 PM
Abby,
I am not entirely sure what determine when a country is at war but I would imagine that being in an armed conflict with another nation would cover it. Thus when the UK was fighting Argentina over the Falklands, whilst there had been no formal declaration of war, both sides recognised it was a war and abided by the obligations. The war on terror becomes somewhat problematic in that AQ is not a nation. However the US involvement in Afghanistan would have been covered, and Iraq as well.
With regards al-Marri, international law would require that he be treated as would any other US resident, and that is subject to civil law. If there was evidence he had committed a crime he could be held for a short period for questioning, and then either freed or charges laid. If charges are laid he could be held pending trial. All that is covered under various treaties, charters etc that the US has signed up to. What international law does not allow is indefinite detention without trial and without knowing the nature of the charges against you.
If you want an idea of some of the duties the US has under international law, then as well as the Geneva conventions, you could also look at the UN Declaration on Human Rights. It is a bit waffly, so you could also try the European Convention on Human Rights, which although does not apply to the US, is based on the UN Declaration but intended for actual use as law. It is the UN Declaration made practical if you like.
Posted by: John Doe | May 28, 2008 5:12 PM
Abby Normal and others,
I understand that the legalisms of declaring war are not necessarily followed, that we can be at war without declaring war, that we can be at war even if that war is unlawful, and all that other stuff.
But the point I tried to make, which I think has been missed, is that any reasonable definition of war must refer to armed conflict between some kind of political entities. When the US invaded Iraq, yes, we were at war. The military forces of the United States were at war with Saddam's armies, and his government more broadly.
But when Saddam fell, the war ended and the occupation began. We are not at war with any government or organized political entity, so we are not at war. The highly regrettable fact that our soldiers are being attacked does not make it a war.
So when Dubya claims we are at war, we should ask him "With whom are we at war?"
Posted by: BaldApe | May 28, 2008 5:52 PM
BaldApe says:
"We have always been at war with Oceania."
Someone was going to use the 1984 quote, so let's get it out of the way.
On the serious side, let's assume that either Hillary or Obama get the vote. On 21 Jan 09, what's the best thing they can do with the people in such Bush-directed custody?
Posted by: bill | May 28, 2008 8:33 PM
So, speaking for the president, who are we at war with? I don't have to tell you. Ha ha ha ha ha ha. Na na, na na, na.
Posted by: Abby Normal | May 28, 2008 9:55 PM
Abby:
I actually didn't know that
Where can I learn more about the different routes of war?
Julian:
While part of the issue might be
I think a lot of problems come from
a. the US public being insulated from the realities of war. We are regularly told how we can target just the bad guys, and assured how bad the bad guys are. While not true, many believe it.
b. the US public is isolated from a lot of the world, which feeds into the whole ego issue that the US has. The US believing we have the best everything, even when evidence is contrary (for example we have the best health care is often heard these days).
Posted by: Kelly | May 30, 2008 1:19 PM
Kelly, here's a DOJ memo, which may be a good starting point. It contains a nice compact summary and many references in case you'd like to dig deeper. Fair warning though, it's not what I'd call a fun read.
Here's a slightly more reader friendly article from UMKC School of Law, War and Treaty Powers. It has links to some of the key precedent setting cases at the top right of the page.
Hope this helps.
Posted by: Abby Normal | May 30, 2008 3:18 PM
>> Impeachment is really the only balance for that power and why that's off the table, I have no idea. >>
This is a question I have wondered myself. The Democrats have used the most blistering rhetoric over the past few years accusing Bush of lying to get into the war. Why haven't they gone after him? So you know where I am coming from, I think the war was a mistake and I don't think Bush was completely honest about it. If the Congressional Democrats really felt that seriously about it, I think they would have gone after Bush with impeachment proceedings.
Posted by: mroberts | May 30, 2008 3:25 PM