The Last "Unlawful Combatant?"

The Obama Administration will charge Ali Saleh Kahlah al-Marri with criminal terrorism charges. The NYTimes claims Al-Marri is "the only enemy combatant to be held on American soil." On Rachel Maddow's show, the invaluable Jane Mayer seemed to contradict this claim, but perhaps she is referring to persons held overseas, such as in the American base at Bagram, Afghanistan.

Mayer made an another important point - the theory upheld by the Fourth Circuit, that a President can unilaterally declare a person an unlawful combatant and thus hold them indefinitely will remain untested.

It seems unlikely that President Obama will attempt to exercise such raw power, but the theory remains. What would be better would be if the Obama Administration expressly renounced the Bush Administration position on this issue.

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    Yes, it would be a lot better (5.00 / 1) (#3)
    by Demi Moaned on Thu Feb 26, 2009 at 09:24:14 PM EST
    For Obama not to use these powers as a point of personal virtue is really nothing better than him keeping them warm for the next President who does want to use them.

    Power always looks and feels a lot (5.00 / 1) (#8)
    by Anne on Thu Feb 26, 2009 at 10:16:43 PM EST
    different when you're the one who has it; not only is it hard to resist, it's easy to think that your reasons for using it are always good reasons.

    It sure would have been nice if we could have drawn some lines on this power over that last two years, but all of that was, you know, off the table.

    Oh, well.

    The experts at SCOTUSBlog (5.00 / 2) (#9)
    by Peter G on Thu Feb 26, 2009 at 10:40:31 PM EST
    are pointing out that the Supreme Court doesn't have to let the Administration duck the case. The Justice Dept would have to file a motion to dismiss the pending Supreme Court case -- in which the government's brief is not due for another 3 weeks or so -- as moot in light of the newly filed criminal charges (which so far are a rumor, not actually filed).  Al-Marri's lawyers can plausibly argue that a criminal prosecution does not make his claim moot; after all, he was facing criminal charges several years ago, when the government just walked into court one day, dropped those charges, and "disappeared" him into the military brig based on W's unilateral declaration that he was an "unlawful enemy combatant."  The Court could agree that the risk of repetition keeps the case from being moot, or they could defer ruling on the dismissal motion until after the government files its brief -- thus forcing the Administration to take a position on the Bush claim of Presidential power.  This thing ain't over yet.

    What did Obama say during the campaign (none / 0) (#1)
    by Saul on Thu Feb 26, 2009 at 09:14:43 PM EST
    about this if anything?

    Horrible Precedent (none / 0) (#2)
    by squeaky on Thu Feb 26, 2009 at 09:18:56 PM EST
    This is among the worst abuses of power that Bush claimed. Under this notion any US citizen can be swept off the streets and locked away indefinitely.

    Obama should absolutely make it clear that he renounces this particular unconstitutional abuse of executive power by Bush.  

    I do not see what he has to lose and he clearly has much to gain.

    al-Marri (none / 0) (#4)
    by Steve M on Thu Feb 26, 2009 at 09:39:01 PM EST
    was a resident alien, not a U.S. citizen.  Jose Padilla was the U.S. citizen.

    Yes I Know (none / 0) (#5)
    by squeaky on Thu Feb 26, 2009 at 09:48:37 PM EST
    To be clear then, not only can US citizens be whisked off the street and denied any form of due process according to the Bush classification, but resident aliens could be also whisked off the street as was al-Marri and denied due process.

    Something that should worry us all.


    The Padilla case (none / 0) (#6)
    by Big Tent Democrat on Thu Feb 26, 2009 at 09:51:42 PM EST
    was also withdrawn before the SCOTUS could hear it and criminal charges brought.

    If you want to be skeptical, you could say Obama did no more than Bush did in Padilla.


    Without Renouncing The Power (none / 0) (#7)
    by squeaky on Thu Feb 26, 2009 at 10:02:49 PM EST
    It would appear that Obama did exactly the same as Bush did with Padilla which includes retaining the power to declare anyone an enemy combatant.

    Did you see where the Indictment will be? (none / 0) (#10)
    by Jeralyn on Thu Feb 26, 2009 at 11:32:46 PM EST
    The Southern District of Illinois? What a horrible district for any defendant, let alone an alelged al-Qaeda wannabe.

    that's where they snatched him from (none / 0) (#12)
    by Peter G on Thu Feb 26, 2009 at 11:45:21 PM EST
    in the first place.  I think it was an identity theft prosecution of some sort.  Al-Marri has a great trial lawyer -- Larry Lustberg, of the Gibbons Firm in Newark, NJ -- past president of the NJ Assn of Crim Defense Lawyers, active with the ACLU of NJ and with NACDL (my co-chair for 3d cir cases of the Amicus Committee).

    I was thinking about this issue (none / 0) (#11)
    by lilburro on Thu Feb 26, 2009 at 11:40:03 PM EST
    earlier today.  

    We know that the Bush administration position is that (from Daphne Eviatar) "the prisoners at Bagram are 'enemy combatants' seized in a war, so the United States can detain them indefinitely, without charge or access to lawyers, until hostilities end - whenever that may be." We know also that none of the prisoners at Bagram are being held (from Jonathan Hafetz) as "prisoners of war." So unless Obama changes openly the status of those in Bagram, I would assume they are all being held as unlawful enemy combatants. And I would assume they are being treated as such - which means the AFM Appendix M is in play (it certainly can be used). As David Mizner writes here, "In upholding Bush's position, Bush [I believe he means to write "Obama" here] is reaffirming that these prisoners are enemy (or unlawful) combatants."

    Obama needs to address this category - unlawful combatant - esp. as the AFM contains a section designed just for them, and it is a section of questionable legality.  

    I look forward to the day Pres. Obama lays it all out for us.  Today is not that day, and there are more ambiguities than ever, IMO.

    Power must be intoxicating, and the desire to keep (none / 0) (#13)
    by jawbone on Fri Feb 27, 2009 at 12:01:42 AM EST
    power must be overwhelming.

    How else to explain all the defenses by the very young Obama administration of the power grabs by BushCo?

    Gitmo closing, no torture. Very good.
    Weasel wording to permit extraordinary rendition to countries where we can outsource torture? Not so good.

    Now, the Justice Department is urging a judge to throw out illegal wiretapping suits, based on the need to protect the telecommunication companies while doing state business, as reported in the SF Chronicle.

    The Obama administration has asked a federal judge in San Francisco to uphold a law aimed at dismissing suits against telecommunications companies that cooperated with President George W. Bush's wiretapping program.

    In a filing late Wednesday, the Justice Department sought to dispel Chief U.S. District Judge Vaughn Walker's concern that the law might violate the Constitution by giving the attorney general too much power to change the legal rules that govern the companies' conduct.

    The law requires that judges dismiss suits by people claiming that the companies violated their privacy rights, as long as the attorney general certifies that the firms were helping an anti-terrorism program that the president authorized.

    "Under well-settled law, Congress may leave the decision of whether and when to make a certification to the attorney general's discretion," government lawyers wrote.

    They said Congress did not surrender its lawmaking power when it passed the so-called immunity measure for telecommunications firms last year. Instead, they said, Congress was directing the attorney general to shield companies from suits that endangered national security.

    I have to get some sleep, but I've been hoping TL would address this.

    Guantanamo is American territory (none / 0) (#14)
    by Andreas on Fri Feb 27, 2009 at 02:26:39 AM EST
    "Jane Mayer seemed to contradict this claim, but perhaps she is referring to persons held overseas, such as in the American base at Bagram, Afghanistan."

    She more likely was referring to Guantanamo.

    "Capable of repetition, (none / 0) (#15)
    by scribe on Fri Feb 27, 2009 at 03:49:04 AM EST
    yet evading review".


    "Capable of repetition, (none / 0) (#16)
    by scribe on Fri Feb 27, 2009 at 03:50:36 AM EST
    yet evading review".


    Oh, and BTW:  when the government swept him into the black hole of Charleston, they dismissed the charges then pending against him with prejudice.

    So, they hae to come up with a whole new theory.

    what actual facts (none / 0) (#17)
    by cpinva on Fri Feb 27, 2009 at 04:36:16 AM EST
    It seems unlikely that President Obama will attempt to exercise such raw power,

    cause you to think this? i've seen, read or heard nothing that would make feel comfortable in expressing such (almost) certitude. to the contrary, the obama administrations recent actions, such as defending telecom immunity, require that i assume just the opposite.

    and yet,

    We know that the Bush administration position is that (from Daphne Eviatar) "the prisoners at Bagram are 'enemy combatants' seized in a war, so the United States can detain them indefinitely, without charge or access to lawyers, until hostilities end - whenever that may be."

    congress has declared no such war, and bush never asked them to. my suspicion (and it's just that,  i have no concrete evidence to support stating it as a fact) is that this was intentional; had bush asked, and congress did, he knew that all actions would definitely fall under the terms of the geneva convention, both in appearance and fact.

    this was a situation the bush admin. clearly wanted to avoid, and congress being a republican entity at the time, was happy to allow it.

    Geneva Conventions need an update (none / 0) (#18)
    by joejoejoe on Fri Feb 27, 2009 at 05:55:34 AM EST
    There should be a terrorism section added to the Geneva Conventions to clarify how to treat non-uniformed violent actors not acting on behalf of a state who are detained by a military. They are neither fish nor foul as it stands today. It doesn't make sense that a terrorist detained by the US military in Afghanistan and held in Afghanistan would have rights in US courts but as it stands that person also doesn't have the rights of a POW under Geneva. And they aren't civilians either.

    Somebody should ask the Obama administration if Bagram is in total compliance with the Geneva conventions. That's the big deal for me, not whether Bagram detainees have access to US courts. Compliance with Geneva means ICRC visits, outside communications, and a whole host of other rights and ends the black hole. It's horrific that unlawful combatants are in a black hole but I think the way out of that is to update Geneva and either declare unlawful detainees some kind of POW with all the rights that go with it or release them. I don't see how US courts have anything to do with Bagram.

    The way Obama can prevent future administrations from creating new 'enemy combatants' is to codify how what we call terrorists should be treated under Geneva. Hold a new convention, update it, and sign it before the next President is in office. That's the right thing to do.

    your post actually raises (5.00 / 1) (#19)
    by cpinva on Fri Feb 27, 2009 at 07:34:10 AM EST
    another question in search of a clear answer: define "terrorist". as it stands, pretty much anyone can be identified as a "terrorist", regardless of the act committed, or the actual reason for it.

    the kid driving down the street, whacking mail boxes with a bat, can be charged as a terrorist, just as easily as the guy setting an explosive charge in a building, though their intent is completely different. that's how broadly the statutes are drawn.

    perhaps that revision of the geneva conventions should include a universal standard definition of exactly what qualifies as an act of terrorism, vs an act of stupid, yet simple vandalism?