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Who Is Ali Al-Marri?:
Today's Washington Post has a fascinating report about Ali Al-Marri, the subject of the Fourth Circuit's recent decision on the government's power to detain enemy combatants.
Anderson (mail) (www):
Oh goody, Steno Sue ... pass me the salt.

That said, I'm perfectly willing to suspect that al-Marri is a Qaeda operative. That isn't the issue; the issue is whether he can be held by the Executive, on its unilateral say-so, at its pleasure, indefinitely, when he was seized on U.S. soil.

If al-Marri and Padilla don't have any rights that the government is bound to respect, then neither do you and I, folks.

Put al-Marri on trial, if he's so busted.
7.20.2007 11:03am
Justin (mail):
" What was the purpose of his computer research on hacking, and on how to buy and mix large quantities of chemicals into deadly hydrogen cyanide gas? Why did he possess more than 1,000 stolen credit card numbers? Does he have a connection to Dhiren Barot, the now-jailed British al-Qaeda leader who plotted to blow up buildings in the United States and England, and who may have inspired last month's attempted car bombings in London and Glasgow?"

These are all fascinating questions. We now know that they couldn't be answered by flagrently ignoring the Constitution, so rather than making age-old invocations about it not being a suicide pact, why don't we give due process a try, and maybe we'll get an answer.
7.20.2007 11:09am
Smiley (mail):

If al-Marri and Padilla don't have any rights that the government is bound to respect, then neither do you and I, folks.


We all know that the average "lock em up" law-and-order is absolutely 100% convinced that it will never, ever, ever, happen to them. Which is why THEIR sacred constitutional rights become technicalities or "judicial activism" when applied to an unwelcome defendant.

Thats the double standard that makes me wince - the outcry when a "favored" individual is subjected to a smidgen of the same tactics that are routinely used against less wealthy and popular indivuals. See, e.g., Duke Lacrosse defendants.

You can quote Niemoller to them all you wont. But they know it wont happen to them, so they'll support it till the cows come home. That is the authoritarian mindset.
7.20.2007 11:24am
Steve:
After they told us with confidence that Jose Padilla was a dirty bomber, and then completely failed to charge him with anything of the sort, are people truly willing to give these guys a do-over when they solemnly assure us that al-Marri has done all these awful things?

This guy wasn't picked up on a battlefield. There's no reason why the charges against him can't be proven in court just as they would be for any other wrongdoer. I don't know why we're so terrified of due process; we have a great Constitution and we shouldn't be ashamed to try people under it.
7.20.2007 11:25am
Anderson (mail) (www):
are people truly willing to give these guys a do-over when they solemnly assure us that al-Marri has done all these awful things?

Sadly, anonymous government sources are more credible than John Ashcroft, Attorney General of the United States of America.
7.20.2007 11:39am
wm13:
We all know that after Janet Reno attacked the Branch Davidians and burned up their children, the next Democratic attorney general may well do the same thing to our church and our children (a Presbyterian church in New York City). Which is why every election is literally a matter of life and death for every churchgoer in America.
7.20.2007 11:46am
Anderson (mail) (www):
Well, wm13, if your Presbyterians molest children, illegally stockpile guns, and drive off federal agents at gunpoint, then yes, your church may be in some danger.

(The ATF was entirely too cowboyish at Waco, but once the issue was engaged, Mr. Koresh had two choices: surrender to federal custody, or fight it out at the risk of his followers' lives. He chose the latter.)
7.20.2007 12:13pm
Steve:
We all know that after Janet Reno attacked the Branch Davidians and burned up their children, the next Democratic attorney general may well do the same thing to our church and our children (a Presbyterian church in New York City).

This is a truly awesome analogy, which Anderson underrates at his peril.
7.20.2007 12:40pm
chris c:
First, al Marri isn't a citizen. That's a significant dividing line b/w him and the avg Amerian citizen.

2nd, let's say the govt had taken the criminal def route. Al Marri is arrested, read his Miranda rights, and immed asks for counsel. Questioning ceases, or the govt can question him w/ the knowledge that any information gained may be suppressed at trial. The end result is that the questions detailed in the Wa Post go unanswered.

I don't know the exact path we should take in these cases, but pretending that you can treat guys like al Marri as crim defs and still get useful actionable intel is wishful thinking.
7.20.2007 1:52pm
Justin (mail):
chris c,

If your logic was correct, it would be correct for all crime, regardless of its nature. But Al-Marri wants things that the government could theoretically provide, and the criminal justice system gives the government the ability to make credibile promises about future activity, so as to provide them. Until charged, why would Al-Marri have the least bit incentive to cut a deal?
7.20.2007 2:00pm
Just an Observer:
chris c: First, al Marri isn't a citizen. That's a significant dividing line b/w him and the avg Amerian citizen.

Except that the courts have held that he, as a legal resident alien, does have due process rights. See Footnote 4 of the Fourth Circuit opinion:

Hence, the case at hand involves -- and we limit our analysis to -- persons seized and detained within the United States who have constitutional rights under the Due Process Clause.


So the Fourth Circuit opinion applies to me, a citizen, as much as it applies to al-Marri.

The government asserts that citizens can be held within this country as "enemy combatants" with no more rights that than al-Marri, and actually with fewer procedural rights that Guantanamo detainees get in military CSRT hearings.
7.20.2007 2:05pm
chris c:
Justin, the threat posed by int'l terror is several degrees greater than the threat posed by your average criminal. granted there is vastly more crime than terrorism - but the conseqs of failing to prevent terrorism is vastly greater.

Also, we've accepted in law and otherwise that the focus of the criminal justice system will be on prosecution and punishment, more than prevention. I don't think we've reached any such consensus when it comes to terrorism. Many people - including me - view it as something more than just crime. and the aim should be equal parts prevention and disabling, not prosecution and punishment.

As for what the govt can get from al Marri - my point is that if he is covered by Miranda he can invoke the right to counsel and shut off further questioning. If Mirand does not apply though he may be questioned without fear that his statements may later be barred at trial. and just as importantly by detaining him they remove him from the field. if he were treated as a crim def this also would be more difficult.

As for why he might talk in these circs - perhaps he wouldn't. it seems many of the Gitmo people have, fwiw. but regardless, I'd like the govt to have the chance to see without worrying that in so doing it may jeopardize later conviction.
7.20.2007 2:20pm
Justin (mail):
The distinctions that you are making seem to be policy decisions that are based on certain degrees in dimensions that the Constitution has already definitively answered and ruled out of bounds to modify.

In any event, they don't get to your original point - we've managed fine to get people to talk in other settings using Constitutional means, and extra-Constitutional means have proven to be quite fruitless. You say that "many of the people at Gitmo" have spoken, but there's no indication that anybody at Gitmo has yielded particularly useful information, and every terrorist "plot" that has been prevented was the result of Constitutional police and investigatory practices.
7.20.2007 2:24pm
Steve:
Al Marri is arrested, read his Miranda rights, and immed asks for counsel. Questioning ceases, or the govt can question him w/ the knowledge that any information gained may be suppressed at trial.

I have no problem with the idea of questioning him without counsel and suppressing the information gained at a criminal trial. If we're certain enough that he's a bad guy to subject him to all this, we shouldn't be counting on the admissibility of a confession to prove his guilt.

If you've got the goods on him anyway, there's no tension between treating him as a criminal defendant and an intelligence source at the same time. The only problem would be that, if you want to torture him for intel, obviously you wouldn't want to let him into open court after that.
7.20.2007 2:42pm
Colin (mail):
the threat posed by int'l terror is several degrees greater than the threat posed by your average criminal.

"Several degrees?" Several degrees of what? How many degrees? Your subjective opinion of the dangers of international terrorism (which kills far fewer people every year than violent crime or drunk driving) does not persuade me that due process is unreasonable here.

Many people - including me - view it as something more than just crime.

Many people - including me - aren't as frightened of terrorism as you seem to be. Why does your fear of terrorists trump our fear of the consequences of abandoning the liberty values underlying the constitutional protections afforded to citizens, even criminal ones? Rights aren't valuable because we extend them to citizens; we extend them to citizens they're valuable and good. I don't want to see that value judgment unwound on the basis of simple fear.

my point is that if he is covered by Miranda he can invoke the right to counsel and shut off further questioning. If Mirand does not apply though he may be questioned without fear that his statements may later be barred at trial.

It's not Miranda that would cut off questioning, it's his (putative) right to counsel.
7.20.2007 2:47pm
chris c:
Justin, neither of us knows exactly what we've gotten from Gitmo questioning. G Tenet claims it's been substantial and very useful. I know he is not an unimpeachable source, but he would know better than you or me.

I also do not think the Const dictates your preferred approach to this issue. We dealt much differently with German saboteurs in WWII, for instance.

Steve, a mtn to suppress would seek to suppress more than just a confession - it would seek to suppress any fruits of that confession, such as incriminating emails or substances.
7.20.2007 2:52pm
Steve:
Steve, a mtn to suppress would seek to suppress more than just a confession - it would seek to suppress any fruits of that confession, such as incriminating emails or substances.

Like I said, if we don't already have the goods on the guy, we shouldn't be subjecting him to all sorts of extraconstitutional procedures.

If we suspect, but aren't really sure, that he's involved in some kind of terrorist plot, then we ought to investigate it until we find proof. I could accept, for example, detaining the guy for a little longer than you might be able to detain a traditional criminal suspect, but I can't accept that you're entitled to indefinitely detain someone if you can't even prove their guilt.
7.20.2007 3:03pm
chris c:
Steve, if you're willing to hold him a little longer, you're willing to treat him differently than your avg crim def. Also, waiting as you suggest can be perilous - read the 9/11 report re the baby steps pre 9/11 with Moussaoui.

Colin, I'm not 'scared' of terrorism, but I do think it's a serious threat to the country and want to be sure the govt has the means to effectively forestall it - not just to prosecute it after the fact.
7.20.2007 3:20pm
A.S.:
Well, wm13, if your Presbyterians molest children, illegally stockpile guns, and drive off federal agents at gunpoint, then yes, your church may be in some danger.

Hmmm. So then, in response to your claim that "If al-Marri and Padilla don't have any rights that the government is bound to respect, then neither do you and I", I'd say: "you and I" only are in "some danger" of losing our rights if we (a) are non-citizens of Saudi origin, (b) conducted computer research on hacking, and on how to buy and mix large quantities of chemicals into deadly hydrogen cyanide gas, (c) possess more than 1,000 stolen credit card numbers, (d) have a connection to a British al-Qaeda leader, (e) were handled by Khalid Sheikh Mohammed and had continuing ties to him, (f) were named in Khalid Sheikh Mohammed's papers as being part of a second wave of attackers, (g) received al Qaeda training in Afghanistan, such as instruction in the use of poisons and toxins, (h) opened sham businesses and bank accounts, (i) get thousands of dollars from the al Qaeda paymaster, (j) are involved with a mosque linked to people promoting violent jihad, and (k) have a brother who is an enemy combatant who also met with Khalid Sheik Mohammed.

You know what, if "you and I" are in "some danger" of losing our rights under those circumstances, I don't see a big problem.
7.20.2007 3:32pm
Anderson (mail) (www):
A.S., that is why I believe in the rule of law, and you don't.

There are many fine countries where your legal philosophy is regularly put into practice. Perhaps you reside in one? North Korea? China?
7.20.2007 3:39pm
Steve:
Steve, if you're willing to hold him a little longer, you're willing to treat him differently than your avg crim def. Also, waiting as you suggest can be perilous - read the 9/11 report re the baby steps pre 9/11 with Moussaoui.

Yes, I'm willing to treat him differently from the average suspect, or more to the point, if the government treats him slightly worse I'm not going to be up in arms about it. I thought I was being reasonable by making that statement; you seem to think it's a gotcha where now I can't complain about anything that gets done to him. To be clear, no, I'm not willing to throw him in a hole indefinitely if we can't even prove he did anything. That's not America.

I don't accept that we have to live in a world where every suspected terrorist has to be thrown in a hole because you never know, if we give them due process the result might be 9/11. There has to be a better way than existing under a perpetual state of emergency.
7.20.2007 3:45pm
chris c:
Steve - I wasn't trying to play gotcha, sorry if it came across that way. and I agree with you that there is a better way than what we've tried thus far.

my point throughout has been simply that treating al Marri and other AQ suspects as crim defs across the board imposes some substantial costs, and that I don't think those costs are constitutionally required or otherwise make sense. But I don't want to torture, or toss anyone in a dark hole forever without a fair determination of guilt.
7.20.2007 4:02pm
David M. Nieporent (www):
This guy wasn't picked up on a battlefield. There's no reason why the charges against him can't be proven in court just as they would be for any other wrongdoer. I don't know why we're so terrified of due process; we have a great Constitution and we shouldn't be ashamed to try people under it.
Look, if you want to argue that the Constitution requires a certain level of protections for him, and if we can't meet that level, we have to let him go free, that's one thing.

But to claim that there's no reason why the charges can't be proven in court the same way they would for ordinary criminals simply evinces a complete lack of understanding of intelligence work.
7.21.2007 2:14am
Andrew J. Lazarus (mail):
<blockquote>But to claim that there's no reason why the charges can't be proven in court the same way they would for ordinary criminals simply evinces a complete lack of understanding of intelligence work.</blockquote>The content of at least some charges are available for all to see in the original newspaper article. We just aren't willing to let Al-Marri rebut them (if he can). To claim we can have justice while allowing indefinite incommunicado detention at government whim evinces a complete lack of understanding that <i>James Bond is fiction.</i>
7.21.2007 11:35pm