Does the the president have the power to order the indefinite military detention of American born ,U.S. naturalized citizens or other legal U.S residents seized on domestic soil? Joe The Plumber terrorized the Democratic party with his economic theories. If he were have deemed to have committed an actual terrorist act on domestic soil, could he be stripped of the constitutional rights that our children hopefully read about in civics classes and we adults learn about by watching endless Law and Order re-runs? We are about to find out. The answer will have dramatic effects on the upcoming Obama Administration which no doubt views such rights differently than the Bush administration. Bush’s policy has been for all practical purposes that such people have no rights at all other than international basic human rights. The “Bushanzied” Justice Department has fought tooth and nail to keep it that way. There is no one better to attest to that than U.S citizen Ali Saleh Kahlah al-Marr.
Ali Saleh Kahlah al-Marr, a A legal resident alien and student at Bradley University arrived in the United States the day before the 2001 terrorist attack. Weeks later, he was arrested after authorities found in his home hundreds of credit card numbers belonging to others. As the investigation into him progressed, alleged ties to al Queda were uncovered. In 2003 President Bush formally declared him an “enemy combatant” under the “Authorization For Use of Military Force Act” He was transferred from civilian custody to military custody. President Bush alleges that:
“al-Marri engaged in “hostile and warlike acts” working as an “al Qaeda sleeper agent” who was planning to “hack into the computer systems of U.S. banks” for a possible follow-up to the 9/11 attacks.”
This is not the first time the Bush administration has branded someone in this country legally an enemy combatant. Louisiana-born Yaser Esam Hamdi, another former ”enemy combatant” held in this country without charges, was eventually sent home to Saudi Arabia after renouncing his right to U.S. citizenship. He was an American born, United States citizen.
This is not as clear cut as the captured Germans who landed on U.S soil by Submarine during World War II. They were immediately declared enemy combatants. They were tried in a military setting. Most were executed . This was an easy call. We had a Congressional declaration of War against Germany. Germany had one against us. The enemy was easy to spot. The eight German saboteurs (one of whom claimed U.S. citizenship) were tried by military commission for entering the United States clandestinely by submarine, shedding their military uniforms. President Franklin D. Roosevelt convened a secret military tribunal which sentenced the eight men to death. The President later commuted the death sentences of two to life in prison for helping in the capture of the others.
Today we have post 9-11 legislation that makes it relatively easy for a President to hang a combatant tag on someone, stripping that person of practically all constitutional rights. Today we have 200+ detainees at Guantanamo Bay which President-elect Obama has vowed to close. If they are moved to American soil what rights will inure to them if they are not declared enemy combatants? If they are charged with federal crimes, they will have federal rights. Secrets may be exposed. Evidence obtained by unorthodox means may be excluded. There is no easy answer. To come up with one, we have to accept that the concept of war as our parents knew it has changed. This philosophy has been the backbone of every move the Bush administration has made in this arena. In the terrorist millennium, the true “declaration of war” enemy combatant scenario has arguably become obsolete. Does this mean our Constitution has become obsolete in this area requiring the use of executive authority and knee-jerk legislation to make up for any shortcomings? I would hope not. It has withstood 220 years military conflicts and incursions. The Constitution is supposed to be bigger than any moment in time.
So what about Ali Saleh Kahlah al-Marri? Can he, a resident alien in this country legally be arrested and held indefinitely on U.S soil with only the rights of an enemy combatant? Earlier this year, the Fourth Court of Appeals ruled that additional hearings are necessary in U.S. District Court to allow al-Marri to challenge whether he was properly designated an “enemy combatant.” The Supreme Court in what is surely to be its most watched decision of this term has agreed take the al-Marri case to either restrain or leave unchecked presidential executive authority to order the indefinite military detention of U.S Citizens arrested on U.S soil. The Supreme Court will not decide whether Marri is an agent of Al Qaeda but will decide whether the Bush administration had the legal authority to bypass the nation’s civilian judicial process and to hold a person in military custody.
I am in agreement that the traditional concept of war is obsolete in today’s world. I am agreement that a person can committ an act of war without their being a declaration of war. I agree that the executive branch should be able to classify acts of war. That’s where my agreement ends. Our Constution is bigger than our passage through history. United States citizens either naturalized or U.S born have rights that can not be stripped without judicial process. If an act is comitted by as U.S. citizen that is deemd by the adminstration as “an act of war” without a Congressional declaration, such a designation must be subject to judicial scrutiny and habeus corpus. Like the death penalty, an enemy combatant designation of a U.S. citizen should carry an automatic appeal to the federal court system to review the designation. If the designation is upheld so be it. If it is not, the person must be charged in the criminal system or released pursuant to all constitutionally afforded guarantees.