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.
December 11th, 2008 at 4:25 am
Fear generally causes people to act like savages. Over the past few years the American public has sacrificed their civil liberties because of fear, lack of involvement in the process, and because they were blissfully unaware of what has been happening –other than what the media elected to convey.
I'm reminded at this time Richard Nixon's understanding that the Executive Branch was "above the law" if the President deemed it necessary. It is evident to me that the present administration is emulating this understanding, rather than demonstrating wisdom or adherence to the constitution. Perhaps prior to running for the offices of President/VP, the individuals and their principals need to be educated in constitutional basics so that the types of infringements you've commented upon don't occur. Great post!
December 11th, 2008 at 4:43 am
The important issues in this article are ones that I have pondered and written about in my recently published book, "Hung Jury," which is available online at http://www.EssentialArt.org. Our Constitution is indeed bigger than our passage through history just as the God we mention is more vast than one person's ability to explain. The concept of war has also changed only as much as the concept of community. My parents and I grew up in a time when we knew everyone on our street, by name, and interacted with them regularly at church, schools, community events…etc. We wonder why so many "terrorist" acts can happen by people in our community after these acts occur. Ask yourself, when was the last time you walked out your door and said hello to your neighbors or invited them to lunch or dinner to get to know them? Kind words and actions can do a lot to diffuse terroist mentality. If not, their terrorist plans might otherwise be sidetracked by the knowledge that their actions are being watched – not by our high tech military but by neighbors who care. This idea does not promote the other extremist concept of the nosy neighbor.
December 11th, 2008 at 5:02 am
Good article Brian. Dealing with enemy combatants is a tough subject, especially when they are US citizens. The only disagreement I have is that there are clearly times when National Security interests require secrecy and there must be a mechanism to remove such cases from the 'normal' flow of judicial process. I do not pretend to have a total solution on how to accomplish this.
Blessings,
Dr.B
December 11th, 2008 at 6:56 am
Brian,
This is a good article. It's an issue that more Americans need to wake up and take a look at. I fear that the governments definition of a "terrorist" is widening to include individuals that should, in no way, be treated like "terrorists". Thanks for bringing this information to light!
Bradley,
@OutsideMyBrain
December 11th, 2008 at 9:09 am
I won my bet – within one comment of the top someone would claim we've lost significant civil liberties under Bushitlermchimpywhatever. Bah.
More seriously, I would take a 1/300,000,000 chance in being labeled an enemy combatant if the level of certainty required stolen credit cards and multiple links to, say, Al Queda. Certainly thems better odds than the Nisei had in WWII under St. FDR.
-OT
December 12th, 2008 at 2:29 am
So an enemy combatant of the US can only be from outside the US? Thank goodness Brian for the clarity, I was starting to worry. I'll just send your other poster Michelle over to my neighbor with the bomb making materials and the al-Qaeda bumper sticker to give them a big hug. That should fix it right?
December 12th, 2008 at 3:01 am
Sure I did Bro. Perhaps I was being a tad too pithy. My apologies. There is often a shortage of contrary opinions here in Cuban-ville and my point is that an enemy of the state is just that, an enemy. I take what is clearly the less popular view of acting with more caution and restricting one (or 100) person's rights than to be less cautious and give everyone the same rights regardles of their behavior. The latter only insures thst eventually none of us will have rights. Thanks for keeping it real Brian. Some days I don't even need coffee to get going when I read your site.
December 12th, 2008 at 6:56 am
Ali Saleh Kahlah al-Marri was NOT a naturalized US citizen. He was a Qatari citizen in the US on a student visa.
December 12th, 2008 at 2:42 pm
Michael-Did you read the post? I never said that. I clearly stated that an American citizen CAN commit an act of war against the U.S. What I also said that is being a U.S citizen carries with it the constitutional right of judicial review of that determination before your rights are stripped.
December 29th, 2008 at 9:38 pm
I notice that in the first paragraph, you state that Ali Saleh Kahlah al-Marr is a US Citizen, whereas in the second, you casually (?) use the term “legal resident alien”. I don’t know the difference with respect to what rights (constitutional) are conferred on an individual fortunate enough to have a status of US Citizen vis-à-vis a “legal resident alien”. From my limited research, I have determined they are not necessarily entitled to the same bucket of rights. However, I would guess, you are calling Mr. al-Marr a US Citizen, to make a point in that according to our laws, despite the fact that Mr. al-Marr is a citizen of Qatar, as a “legal resident alien” of the US, he has the same habeas corpus rights as a US Citizen? It’s my understanding that the Bill of Rights guarantees procedural protection to all people, foreigners as well, if they are accused of a crime by the Feds (and there is the rub).
I assume, if Mr. al-Marr was neither a US citizen nor a legal resident alien, and he was simply a Guantanamo detainee apprehended on the battlefield, this conversation would be secondary to the usual Dallas cocktail quip, “How ‘bout them Cowboys?!”
I can understand how someone can be troubled by the fact that according to the Authorization for Use of Military Force Act, determining whether a suspected terrorist is a criminal defendant or an “enemy combatant” is totally subjective and is made on an ad hoc, case-by-case basis by the Pentagon and the president. The Bush administration claims that because the nation is “at war,” there should be no federal court interference with their determination. This gets back to your observation that things (wars) are not as clear cut as they once were. Regarding what rights terrorist have with respect to the Geneva Convention, it seems clear cut to me. (Page down to the end of my post for more on this**)
Some have argued that the type of governmental power exercised this case is there will be a back door to military control of our nation. I side with Bobby Chesney, a national security law specialist at Wake Forest University, who says critics overstate the risk because anyone held can file a court challenge (as is being done here – try doing that in Qatar). “The claim isn’t that the president can detain whoever he wants, it’s the claim that he can detain al-Qaeda members,” Chesney said. “This notion that the president is asserting some royal prerogative is silly.” Chesney’s point underscores that Mr. al-Marr wasn’t singing in the Bradley Boys Choir or a practicing plumber like our buddy Joe; he was indicted on federal terrorism charges first in New York, then in Illinois before being whisked away by Federal authorities to a military brig in South Carolina.
Speaking of Joe the Plumber, no one seems too concerned – not the legal community, not the media, not any human rights groups – that his civil liberties have been violated. According to Ohio Inspector General, Tom Charles, Helen Jones-Kelley, Director of Ohio Department of Job and Family Services (probably another bloated government agency) committed an “improper” and “wrongful act” by allowing underlings to search state databases for dirt on Joe Wurzelbacher. http://blog.cleveland.com/openers/2008/11/search_of_joe_the_plumbers_rec.html. As an aside, his report also stated that Jones-Kelley, who gave $2500 to the Obama campaign, sent four emails through her state account in which she provided lists of names of potential contributors to the Obama campaign. Where’s the
left-wing outrage? From what I remember, Joe’s offense was to have the gall, as an ordinary US Citizen, to ask a few probing, yet embarrassing questions of a presidential candidate. I suppose Joe should be thankful in that in Qatar, a monarchy, they don’t have elections (or unions).
This lack of support for Joe from the legal community is particularly disheartening in light of a recent Wall Street Journal article by William McGurn, Gitmo Lawyers Are the Latest in Radical Chic. http://online.wsj.com/article_email/SB122939103167209233-lMyQjAxMDI4MjI5NjMyOTYxWj.html
”Within the ranks of our leading law schools, law firms, and legal centers, it would be hard to find a cause more popular than the detainees of Guantanamo Bay. Every lawyer wants his own detainee or detainee group. The result is that dozens of the world’s most dangerous men now have their own legal dream team.”
It’s particularly sickening that the media and legal community focuses on these detainees’ alleged rights, or our supposed mistreatment, while completely overlooking and ignoring who these people are, what they think, and their atrocities and crimes (Whoops, there I go again, alleged crimes). These terrorists, given their crimes and cause, are treated quite well in Gitmo. True, they don’t get to watch Hanoi Jane’s latest workout video, but they do get “three hots and a cot”. But focusing on America’s imperfections (as opposed to our virtues and successes) is typical of the left who believes, despite manifest evidence to the contrary, that America is an inherently unjust country, somebody somewhere is being oppressed. This may open your eyes, or maybe at least one eye – http://www.insidegitmo.com/ – a website that is a companion resource for a new book by Lieutenant Colonel Gordon Cucullu, Inside Gitmo: The True Story Behind the Myths of Guantanamo Bay.
**
“No terrorist group is a party to the Geneva Conventions. They have not signed, much less ratified, those treaties. Moreover, it is evident that Hamas, Hezbollah, and members of the global Al-Qaeda network spurn both the spirit and the letter of international treaties designed to ameliorate the cruelty of war. Bloody attacks in New York, Jerusalem, Bali, Madrid, and Beslan are testament to the fact that these groups seek to kill civilians rather than to take captives. And when Islamist terrorists do seize hostages, brutality rather than protection appears to be the rule.
Iraqi insurgents beheaded 26-year-old American businessman Nicholas Berg and shot 20-year-old Keith Matthew Maupin shortly after the June 28, 2004 transfer of sovereignty. On July 22, Iraqi police found the beheaded corpse of a Bulgarian hostage. The Arabic satellite television network Al-Jazeera had confirmed on July 13 that it had a tape showing his execution. Iraqi captors have also executed Pakistanis, a Turk, and a South Korean, among others. Such mistreatment of prisoners is not a new phenomenon among terrorist groups. In the 1980s, Hezbollah captured a number of Westerners in Lebanon, among them priests, journalists, professors, a librarian, and even the president of the American University of Beirut. Hezbollah tortured and hanged U.S. Marine lieutenant colonel William Higgins. Iraqi insurgents who decapitate civilian hostages have no more international legal claim to protection than did Hezbollah kidnappers.
By violating every tenet of international law regarding treatment of prisoners, terrorist groups forfeit any entitlement to protection under the Geneva Conventions. U.S. forces would be within their legal rights to treat captured Al-Qaeda members as they did Nazi saboteurs during World War II—trial by military commission and execution by firing squad.”
Source: http://www.meforum.org/article/651
February 3rd, 2009 at 11:15 pm
You are correct, he is a resident alien, I thought I had changed that in editing. My apologies.
February 3rd, 2009 at 11:15 pm
No need to apologize. It doesn't change the analysis. For purposes of constitutional protections to due process, resident aliens and citizens both enjoy rights to habeas corpus, competent counsel of their choice, freedom of unreasonable search and siezure, etc.
You are right on the money, my man.
February 3rd, 2009 at 11:15 pm
Setting aside the fact that Ali Saleh Kahlah al-Marri is NOT a naturalized US citizen and the debate as to whether or not resident aliens enjoy the same rights to due process as citizens…
I have always been perplexed by Americans' that are unwilling to recognize the constitutionally guaranteed rights of criminals. Either the rights are unalienable or they aren't. You can't pick an dchoose which rights are to be recognized and which ones ought to be faithfully observed. To do so would make you a hypocrite.
Also, I wonder what some of the people that have commented above fear? What is it about due process that terrifies the right? How can the same people allegedly stand for the constitution and at the same time insist that it should be selectively applied? Would anyone really be a supporter of law and order but at the same time argue that guaranteedprotections and rights should be carved out because of the nature of the crimes committed?