Tuesday, May 16, 2006

Bottom of the Fifth

I'll be the first one to tell you that - law school degree aside - the intricacies of the legal system frighten and confuse me.

That said, I thought this was worth a read. I'm sure there are all sorts of reasons why our individual rights don't apply to this particular young man, in the strict legal sense. But either way, it doesn't seem right to me.

A federal magistrate judge yesterday recommended rejecting a petition by the sole remaining enemy combatant being held on U.S. soil, finding that Ali Saleh Kahlah al-Marri had not offered persuasive evidence rebutting the government's allegations against him.

Al-Masri, a Qatari national and college student in Peoria Il., is the only "enemy combatant" still being held indefinitely in on us soil( the Military Brig where they are also holding Padilla). But don't feel too bad for him. That whole being held in defiance of the law and due process?

Apparently, according to the Magistrate, that is his fault for being unable to disprove the FBI's allegations against him: (allegations mind you, there are NO charges pending against Al-Marri ) Magistrate Judge Robert C. Carr of the U.S. District Court of South Carolina upbraided Marri for declining to address detailed allegations contained in a declassified government report outlining his alleged links to al-Qaeda.

"The petitioner's refusal . . . is either a sophomoric approach to a serious issue, or worse, an attempt to subvert the judicial process and flout due process," Carr wrote. "The petitioner has squandered his opportunity to be heard by purposely not participating in a meaningful way."

Consider the incredible insult this case represents to everything we know about fairness and due process. The government, first investigates and arrests Al-Masri and charges him with several crimes. So far So good, everything working as it should.

However, right before Al-Masri has his constitutionally guaranteed trial to force the government to prove their case, the government instead drops all charges against him, dismissing them forever. Rather than being then allowed to go free, however, the nightmare begins instead. Al-Masri finds himself being arrested and taken to a military prison in South Carolina, charged with precisely nothing, all on the strength of the fact that George W. Bush signed a Paper declaring him a bad guy. The government essentially substitutes a signature on a sheet of paper for 200 years of legal tradition.

What bothers me about this enough to post it are those last two sentences. This Presidency has been run more like a monarchy than anything else, and this seems like a particularly egregious example of that.

Yes, I know, Al-Masri (Al-Marri? The author has it both ways above) is a Qatari national, and that's why this happened. He's not a U.S. Citizen, so the same protections aren't afforded to him.

....Only, weren't we saying the same thing about NSA spying and record-keeping last fall?

On Mother's Day my parents asked me about Codemorse's visit from the USWW House of Representatives the other week, and while we joked about this little nothing of a site being spied on, the jokes were tinged with an uncomfortably serious edge. I'm not nearly hubristic enough to believe that the government has any interest in me, but that doesn't mean that they aren't interested in US (pun intended).

It's possible that this Al-Masri guy is a real dangerous guy. But innocent? Til proven guilty? Anyone remember that?


At 12:23 PM, Blogger Scott Roche said...


ey I realize this may be under your legal eagle radar, but do you have any opinion on the Duke rape case? Fox News' legal talking heads were raking the DA over the coals last night. (I only watch it because my wife wants to.)

At 1:18 PM, Blogger Jabawacefti said...

I think we may have waded into this before, but for the purposes of clarily, we should at least acknowledge (as you have) the difference between what is "legal" and what is "right."

I think that's a major flaw in the objections to the President and his policies, that everything he does is "illegal." Not every wrong decision is "illegal." And it allows the President's supporters to refute the arguments and objections by pointing out that the actions are "legal."

If someone thinks the President's decisions regarding "unlawful enemy combatants" are wrong, that's fine. But it's a mistake to conflate it with Constitutional protections that are simply inapplicable in these instances.

To summarize: Wrong does not necessarily equal illegal.

At 1:39 PM, Blogger codemorse said...


We're in total agreement vs. "legal" and "right." But haven't we, in a very real sense, reached a point with this administration where what is legal depends upon what they say is legal?


I haven't been following it, frankly. Why were they raking him (that sounds....dirty)?

From what I understand, she was an "exotic dancer," or possibly an "escort," depending on who you talk to. She was, depending on who you talk to, already bruised when she got to the party, or bruised at the party.

In other words: he said/she said. Which, unfortunately, is waht most rape cases devolve into.

At 4:42 PM, Blogger Jabawacefti said...

To answer your question: In some sense, yes. That's the way the Constitution was set up.

There are spheres of authority in the Constitution. The President is given almost plenary authority in certain areas (most notably in foreign affairs and war). See U.S. Const. Art. II ("[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States"). In carrying out those responsibilities, in essence, yes, some of what is "legal" depends on what the administration says is legal.

That's the way the Constitution was set up. And it's important to set it up this way because we cannot run foreign policy or wars by committee. But see U.S. Const. Art. II ("[h]e shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court."). Efficiency demands that authority be narrowly circumscribed to a single leader.

If it appears surprising to us, that is in part because most of our time is not spent during times of war. And because this "war" has the characteristics of some, but not all, wars that we are otherwise familiar with.


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