I really liked that third link...I never thought I would get to see the paper Bush wipes his ass with, ...not the I ever wanted to see such a thing,  but there it is.

It's the end of the world as we know it, and I feel fine

I am sure from time to time an innocent person will be detained for a crime he or she did not commit or simply a "wrong place at the wrong time story" where somebody gets swept into the wrong net, much less an abuse of power.

Yep. And from time to time, saboteurs get through and murder innocent US citizens by the hundreds and thousands. Between the two -- your false positive and my false negative -- which is the easiest to recover a citizen's life from?  Detention, or death? Choose carefully, because reducing the likelihood of one kind of false reading ensures an increase in the likelihood of the other.

I can hardly find that to be good news. Indefinite detention in military custody without charge for somebody picked up ON US SOIL!?

"Without charge?" Do you understand anything about this case? Go back and read the opinion, paying close attention to page 6 of the majority opinion and page 82 of the dissent.

"Without charge?" Do you understand anything about this case? Go back and read the opinion, paying close attention to page 6 of the majority opinion and page 82 of the dissent.

"On the following Monday, June 23, before that hearing could be held, the Government moved ex parte to dismiss the indictment based on an order signed that morning by the President." ~Page 6/7

So, let me get this straight. A guy gets arrested and indicted on some low level white collar type felony. The president orders him transferred to military custody and the government dismisses the charges against him in civil court to transfer him against his will to a brig halfway across the country, outside the district the original case was brought in, and he has been held since for 3 years since his trial was scheduled to begin and you are saying he is being held with charges, transparency and all due process?

Yep. And from time to time, saboteurs get through and murder innocent US citizens by the hundreds and thousands. Between the two -- your false positive and my false negative -- which is the easiest to recover a citizen's life from?  Detention, or death? Choose carefully, because reducing the likelihood of one kind of false reading ensures an increase in the likelihood of the other.

IANAL, but if I recall correctly the premise of the legal system in the US is that it is better for several guilty to go free than for the innocent to suffer in prison with false convictions, hence the protections that are afforded all of the accused. Your contention risks undermining all of the legal protections in this system and quite frankly, appeals to emotion ("Think of the children and the elderly that the 'terrists want to blow up!")  in order to justify something that is un-american.

I'll take my chances living out my day to day life with my liberties intact rather than cowering in fear of a potential threat which is statistically less likely to kill any of us than dying from a hernia .

In other words, death by giant, inflamed, testicles is more likely to kill me than terrorism. Should everybody cut their genitals off?

but if I recall correctly the premise of the legal system in the US is that it is better for several guilty to go free than for the innocent to suffer in prison with false convictions

That's certainly the premise of the criminal legal system. The parallel system is military, and is premised upon making an ugly business as palatable as possible, which includes removing potential enemies from the battlefield -- thus better securing the right to life for both those enemies and our citizens, soldier or civilian.

statistically less likely to kill any of us than dying from a hernia

Right now, perhaps. Hernias, however, are not actively seeking better and more effective ways to kill you. But have it your way: hernias are also statistically more likely to kill you than someone in law enforcement. Guess we should stop investigating police abuse through independent commissions, too, yes? After all, if there's anything really wrong with any particular death, other police are sure to arrest them. Surely there's no extra-judicial conspiracy which would interfere with police prosecutions any more than there are extra-judicial reasons why a terrorist might escape punishment. Right?

That's certainly the premise of the criminal legal system. The parallel system is military, and is premised upon making an ugly business as palatable as possible, which includes removing potential enemies from the battlefield -- thus better securing the right to life for both those enemies and our citizens, soldier or civilian.

So either Peoria is a battlefield (Has Illonois threatened to flee the union? Our friends to the north getting frisky? I wasn't aware of a civil war or a Canadian Invasion), or the President can arbitrarily declare any part of the union the groundsite of hostilities.

I don't know which is more scary -- me being so drunk for the past several years (could you clue me in to when this war spread to Illinois - how long was I out?) as to not be aware of a military threat in an important state or the fact that people are cool with giving unchecked power to an executive to toss civilians into a military judicial system.

As to your second point, I believe I am much more likely to buy it from a crackhead on the corner than from these supposed "terrorist" threats. But, if I ever do pass on due to the hand of Smokey McWaterPipe I'd certainly like him to get all of the rights and protections he has coming at his trial.

That is, if the cops even can catch him because I am told there is a shortage of police officers --- I'm told they are shortstaffed right now because many officers are reservists or guardsmen and they are deployed overseas on some Middle Eastern adventure...

You cannot reasonably punish people for crimes that they haven't committed.

Nonsense. Enemy soldiers can be punished by indefinite detention in a POW camp just for walking on US soil in uniform. They do not get the same presumption of civilians have.

Also, this isn't true even in criminal trials. The operative phrase is "conspiracy to commit."

This ruling does not give more protection to spies and saboteurs than it does to uniformed enemy soldiers.

See above. If one presumes that saboteurs must be granted the same presumption of innocence that civilians get, those saboteurs very much get better treatment than uniformed enemy soldiers. In the best case (improper arrest and/or trial procedure) and second-best case (deportation) scenarios, they're free!

The reason why an enemy soldier can be held in a POW camp merely for walking on US soil in uniform, is because that is how wars are conducted under the Geneva Conventions, and not because the soldier in question is being punished for a crime that he did not commit.  Being held in a POW camp is not a punishment, despite the fact that soldiers normally would prefer to avoid it.  And if a person is found guilty of conspiracy to commit a crime, that's because he actually did something, he engaged in a conspiracy, which is NOT the same thing as merely intending to commit a crime.  (Conspiracy at the very least involves talking to another person to make illegal plans.)  

Nothing that happens exclusively within your own mind is a crime, unless of course we are living in George Orwell's imaginary world of 1984, in which there are such things are "thought crimes".

And no, saboteurs are not punished by mere deportation.  Actual saboteurs are punished very severely, the US frowns on sabotage.  People can be deported on the grounds that if they were not deported they might commit an act of sabotage, which is a mere speculation, not an established fact of sabotage.  

I have now explained this to you twice, I hope it is getting clearer for you.

The reason why an enemy soldier can be held in a POW camp merely for walking on US soil in uniform, is because that is how wars are conducted under the Geneva Conventions, and not because the soldier in question is being punished for a crime that he did not commit.

The disposition of spies and saboteurs is also spelled out in the Geneva Conventions, and I assure you that civilian criminal trials is not what they are entitled to. And much like the uniformed enemy soldier need not have shot anyone on US soil to be placed in a POW camp, spies and saboteurs need not have committed any acts of spying or sabotage to be treated under the conventions.

Under your formulation, a saboteur listed in enemy intelligence can't be arrested, much less tried, until they have committed sabotage. This explaination is both absurd and wrong.

If the US had definite information that someone has entered the country for the purpose of committing sabotage (such as the case you give, of that person actually being listed in enemy intelligence), then of course that person should be arrested.  At the very least, such information (if it was reliable or confirmed) would disqualify such a person from being in the country & he or she could be prevented from entering, or could be deported if he or she had already entered.  If this person had in fact NOT committed sabotage then he or she is not guilty of sabotage.  There is no point in trying someone for sabotage if you know that they have not committed any sabotage, regardless of any lists upon which they may appear.  People cannot be made guilty of a crime just by including them on a list.  Because you know, anybody can be put on a list.  Such lists are not necessarily accurate.  Sometimes someone is on a list because they have the same name as someone else, rather than because of anything they have actually done or actually intend to do.  Sometimes people are put on a list as a deliberately malicious act by someone who wishes to cause trouble for them.  There are many possibilities which you are not considering.  However, if you personally were accused of being a saboteur, you would suddenly discover that you do want your rights to be respected, and that due process of law is actually very important after all.  

You insist upon finding people guilty of thought crimes, which is a very dangerous practice, because you don't really know what people's thoughts are, until such time as they act on the basis of those thoughts.  Absolutely anybody, yourself included, can be accused of having improper thoughts, and absolutely nobody, including you, can prove that he or she is innocent of having improper thoughts.   That does not obviate the need for due process of law.

There are many possibilities which you are not considering.

I am considering them. I am simply not considering them more important than the right to life of every US citizen. Moreover, I am not assuming that the military justice system is incapable of dealing with those same issues, as so many in this thread apparently are.

Personally, I have a tremendous loathing of terrorism and terrorists, and I do want to see all reasonable steps taken to combat terrorism; I am not in favor of letting known terrorists go free in order to safeguard some theoretical rights that someone wishes to grant them.  However, I also do not want to see people who really aren't terrorists being treated as if they were, on the principle that it is better to err on the side of suspicion, and thereby to incarcerate innocent people rather than allow some actual criminals to slip through the net.  There is an appropriate balance to be found.

My argument with you has not actually been about whether people who are suspected of being terrorists should be handled by military justice or by civilian justice.  I believe that even though there are differences between military justice and civilian justice, there are also certain basic requirements in either case, in order to achieve actual justice.  The objective of justice is not just to throw people in jail and keep them there, or to execute people in large numbers; it is to punish the guilty and to exonerate the innocent.  We cannot assume (as you suggest in an earlier comment) that someone is guilty because their name is on a list.  They MAY be guilty, but we owe it to them, and to our belief in justice, to make a greater effort to determine the facts of the matter.

The US is admittedly in a difficult position.  There are over a billion Muslims in the world and although not all of them hate the US, it seems that a large proportion of them do, and they are prepared to commit acts of violence against the US.  It is tempting to adopt a radically aggressive stance toward terrorism and to become utterly merciless toward everyone who is even suspected of being a terrorist, but ultimately that is self-defeating.  We would wind up harming as many innocent people, or more, than the terrorists do.

Can we fight terrorism with terrorism?  We can, but the outcome is very destructive.  Terrorists attack both civilian and military targets indiscriminately, they want to kill as many people as they can and they care very little who they kill.  The US could do the same.  Nuclear war against Muslim nations would beat the terrorists at their own game.  It might even be possible (with the necessary suspension of all constitutional limits on Presidential powers) to annihilate Islam throughout the world, with a death toll in the billions (many non-Muslims would also die, inevitably, because nuclear weapons are not very precise, and radioactive fallout would spread beyond the immediate target area).  At some future time, that may actually seem to be an attractive option, if things go badly enough, although that much death and destruction would be the greatest tragedy in human history, and far more innocent people would be killed than the number of actual terrorists who would be killed.  Still, if the US is desperate enough, it will take desperate measures.  Ironically, terrorists would obtain the worst possible results if they succeed in their objective of inspiring terror in those whom they are attacking.  They think that a terrified US will simply surrender, but they do not know what they are doing.  If the US is sufficiently terrified, it will do terrible things.  It is already doing terrible things, but it could get much, much worse.

Meanwhile, I am not in a hurry to give away my hard-won civil liberties.  Let us fight terrorism and also extend the normal guarantees of due process of law whenever applicable.  These guarantees aren't ALWAYS applicable.  If you are in a battle and people are shooting at you, you have to shoot back, you do not stop to tell them that they are under arrest and that anything that they say may be used against them in a court of law, etc.  But if someone IS under arrest, then certain legal procedures should be followed.  That's not asking too much.  And if everything goes to hell, then I guess that in the resulting nuclear holocaust, questions of due process of law will cease to be relevant.

I think what the appeals court was rejecting was the very idea that we can be at "war" with a non-state actor, which you have to admit, was pretty ludicrous from the start.  This fight with Al-Qaeda is a conflict that was not imagined when the Geneva conventions were being formulated, and it's silly to think we can take those rules and apply them as we see fit in this case.  After all, why not declare "war" on the Colombian drug cartels, or on the American mafia and use the extra lee way we get to really put the hurt on them?   Because the protection that American citizens and residents have under the law is there for a reason.  

I don't trust the government to decide who should be taken away in the middle of the night and held indefinitely and neither should you.

This fight with Al-Qaeda is a conflict that was not imagined when the Geneva conventions were being formulated, and it's silly to think we can take those rules and apply them as we see fit in this case.

They aren't being so applied, which is why the AUMF and post-Hamdi ruling legislation (among others) were crafted in the first place. This is also why the al-Marri appeal above is so wrong -- it decides that the AUMF and post-Hamdi laws should be circumvented in favor of standard criminal trial process.

After all, why not declare "war" on the Colombian drug cartels, or on the American mafia and use the extra lee way we get to really put the hurt on them?

Because neither the cartels' nor the mafia's interests involve the destruction of the United States as an entity. Also, no legislation has been passed which allows for those groups to be treated as a strictly military concern, unlike al-Qaeda and the AUMF.

I wasn't aware that the AUMF had anything salient to say about this subject of detaining Al-Qaeda suspects in America or classifying people as enemy combatants.  I thought its contents dealt solely with the military action in Iraq.  Could you provide some more information about this?

Clearly the appeals court has decided that the "post-Hamdi" body of law doesn't exactly fit within the constitution.  Now you may not agree with that ruling, but the simple fact that they've invalidated/ignored some legislation isn't reason enough to think the case will be overturned.  That's what the courts are there for.

"Because neither the cartels' nor the mafia's interests involve the destruction of the United States as an entity. Also, no legislation has been passed which allows for those groups to be treated as a strictly military concern, unlike al-Qaeda and the AUMF."

So it is an organization's intention that determines whether or not we can declare war on it?  That's a little tricky.  Colombian cartels certainly have interests that run counter to the interests of the United States.  We've declared war on states for that before, so why not non-state actors?  

And legislation isn't a magic bullet.  Sorry to state the obvious, but just because congress has passed legislation doesn't make it right.

I still maintain that applying the rules of war to non-state actors is at best, a poor strategy, and at worst, a trampling of the Constitution and basic human rights.  The rules for military justice on the field of battle were formulated for a very specific set of circumstances (which are not met by non-state actors and terrorist cells), and using those rules to circumvent the criminal justice system is just wrong, no matter how badly we want to put these guys behind bars.

I still maintain that applying the rules of war to non-state actors is at best, a poor strategy, and at worst, a trampling of the Constitution and basic human rights.  The rules for military justice on the field of battle were formulated for a very specific set of circumstances (which are not met by non-state actors and terrorist cells), and using those rules to circumvent the criminal justice system is just wrong, no matter how badly we want to put these guys behind bars.

I agree. Perhaps the best thing to do would simply be to treat these idiots as criminals, and when caught nail their collective rear-ends to the wall while affording them all of the legal protections offered to anybody else arrested in the United States. Don't even bring up motivations, eg why they would plant a bomb or blow factories up. Simply  bring into court the evidence and treat them like a common psychopath who wants to commit mass murder. Deny them the glory of being a "soldier for the cause" and show to the international community in the process that the people convicted are truly guilty and actually deserve the punishment they were dealt in a transparent process.

Such a "criminalisation policy" was used before in the Northern Ireland troubles and allowed the captors to strip away the "terrorist/political prisoner" label from their charges and treat them like the criminals they actually were. I am sure it was quite shocking to those when they were treated like all of the other thieves and murderers.

Don't even bring up motivations, eg why they would plant a bomb or blow factories up.

And if they decide to take the stand (as is their right, by law) and grandstand, what then?

Such a "criminalisation policy" was used before in the Northern Ireland troubles and allowed the captors to strip away the "terrorist/political prisoner" label from their charges and treat them like the criminals they actually were.

The UK could do this because it has no constitution, much less constitutional protection of citizens, and had passed legislation to control prisoners so appalling that it makes the decision above look like a schoolyard slapfight.

And if they decide to take the stand (as is their right, by law) and grandstand, what then?

Then they get their five minutes in the sun, as is their right, by law, and get tossed in the clink the right and proper way. We then forget about them as they rot in prison. Same result, but better as you do not have to worry about the condemnation of the world for locking up a convicted terrorist. Plus the chances of an innocent person being imprisoned is little, a speedy trial helps preserve evidence and the rights and dignity of all involved are maintained.

In addition, more than one guilty as all hell crazy person originally opting to give testimony in their own defense then backed down after realizing it was futile and likely only to enrage the court further.

Here's the full text of the AUMF.

Sorry to state the obvious, but just because congress has passed legislation doesn't make it right.

There's not much to object about in the AUMF, which I'm sure you'll see when you read it.

 

Nonsense. Enemy soldiers can be punished by indefinite detention in a POW camp just for walking on US soil in uniform. They do not get the same presumption of civilians have.

Section II, Article 118 of the Geneva Convention, POWs get released at the end of conflict.

If these "saboteurs" get tossed in the clink "indefinetely" how do they get better treatment than POWs which are returned home at the end of the war?

If these "saboteurs" get tossed in the clink "indefinetely" how do they get better treatment than POWs which are returned home at the end of the war?

As I mentioned downthread in a response to zyx, "indefinitely" now means exactly the same thing as "the end of hostilities" to a German soldier captured in Africa in 1941, or a Viet Cong member captured in 1965. A war is over when one side loses. If al-Qaeda -- the guys who started all this, remember? -- decided to throw in the towel tomorrow (and took all the steps necessary to make us believe them), the detainees would be repatriated in short order.

As I mentioned downthread in a response to zyx, "indefinitely" now means exactly the same thing as "the end of hostilities" to a German soldier captured in Africa in 1941, or a Viet Cong member captured in 1965. A war is over when one side loses. If al-Qaeda -- the guys who started all this, remember? -- decided to throw in the towel tomorrow (and took all the steps necessary to make us believe them), the detainees would be repatriated in short order.

I'm just glad we decided to legally determine, through an open and transparent process, that these guys are actually members of, or affilitated with, al Qaeda before tossing them in jail "indefinetely."

There are two reasons why I think this will be overturned. One of the big reasons is the one I mentioned above: that this ruling gives actual spies and saboteurs more protection than uniformed enemy soldiers. That might not seem like a very big deal when it's just one guy, but the law won't be in place for just this one case. (Nor will it be in place only until 2009, so the common complaint of "I don't trust this administration!" is a moot point.)

The second reason is that I see the majority opinion as stepping on the toes of SCOTUS. This decision uses a procedural rationale to avoid the laws passed in the wake of the Hamdi decision, saying basically that al-Marri can't fit the criteria because he was detained too long. On a strictly letter-of-the-law reading, they have a point. But recall that Hamdi was decided in a way which obligated Congress to clear up the law; SCOTUS did not impose a judgement criteria by fiat. For an appellate court to then come out with a ruling which potentially penalizes the American public's safety because of that ruling is a slap in the face. The majority of the 6-3 Hamdi ruling was composed of the more liberal SCOTUS justices under Rehnquist, and the more recently-placed members are even less friendly to the idea of imposing judicial litmus tests than their predecessors; so, the appeal court has pretty much alienated the entire SCOTUS from the get-go.

(For those interested, Orin Kerr at the Volokh Conspiracy blog has a few different posts on the subject.)

the common complaint of "I don't trust this administration!" is a moot point

I don't trust the next administration either. It is a valid complaint.

If I don't trust Woodrow Wilson, do I have a valid complaint against paying income tax?

If I don't trust Woodrow Wilson, do I have a valid complaint against paying income tax?

Due to the 16th Amendment, you would not have a valid complaint.

Well, the AUMF builds on the Constitutional powers granted to the Executive for the purpose of national defense. So, we're back to "not a valid complaint" as I said in the first place.

Are you seriously suggesting that holding someone, without charges, indefinitely, is "force" in the context of the AUMF? If so, do you see any limit to the presidents authority or range of actions under the AUMF?

   The key premise, the key assumption, is whether or not we're "at war." Gerry sides with the argument (but don't let me put words in your mouth if I'm wrong) that al Quaida represents an enemy worth the "war" label, and that's likely the same argument the administration is trying to make. If you don't accept that premise, this is an incredible extension of Executive power, a militarizing of the civilian legal system, and a dangerous step toward fascism to boot. No wonder passions are high on both sides, eh?
    Personally, I don't see it, but that's for the courts to decide. I don't think Stevens is going to buy the argument either, which is why I questioned the assumption of an overruling in the first place. The 4th Circuit doesn't matter, IMO, only one Justice on the Supremes. So it goes . . .

Ex ignorantia ad sapientiam; e luce ad tenebras

That's it in a nutshell, uncarved.

Are you seriously suggesting that holding someone, without charges, indefinitely, is "force" in the context of the AUMF?

I am suggesting that:

A) a criminal court dismissing charges against a foreign national on procedural grounds is not the same thing as a foreign national being without charges,
B) holding someone is a better guarantee of human rights than the murder of some large number of others,*
C) "indefinitely" means exactly the same thing here as it did to German soldiers captured in 1941, and
D) detainment of enemy soldiers is a well-established use of the executive authority to wage war, as established in the Constitution.

If so, do you see any limit to the presidents authority or range of actions under the AUMF?

The limits I see are those clearly established in the AUMF: force is only authorized against those persons or groups responsible for the 9/11 attacks, and their adherents. Do you think it's really so hard to not have contact with al-Qaeda?

* Considering our death penalty debates, why am I having to make this argument here? Surely you can't believe that, of all the world's governments and political groups, only the US government has no right to execute the innocent?

A) a criminal court dismissing charges against a foreign national on procedural grounds is not the same thing as a foreign national being without charges

I'm not sure what you're trying to point out. No one has disputed that al Marri is being held without charges.

B) holding someone is a better guarantee of human rights than the murder of some large number of others

Better safe than sorry? That is an absurd argument in the context of the US Constitution.

C) "indefinitely" means exactly the same thing here as it did to German soldiers captured in 1941, and
D) detainment of enemy soldiers is a well-established use of the executive authority to wage war, as established in the Constitution

You are claiming that al Marri is an enemy soldier? That is quite the opposite of what the president is claiming: the very term "enemy combatant" was invented to differentiate captured terrorist suspects from the "well-established" laws that govern ordinary war.

Anyway, you have avoided answering my question, so I'll ask it again: Are you seriously suggesting that holding someone, without charges, indefinitely, is "force" in the context of the AUMF? Is "force" whatever the president says it is, or are there limits to the range of acts that the president may take against suspected members of al Qaeda?

Surely you can't believe that, of all the world's governments and political groups, only the US government has no right to execute the innocent?

The US government has no right to execute the innocent. I have no idea why you are bringing that point up - would you care to explain?

No one has disputed that al Marri is being held without charges.

zyx, it's disputed right in the dissent to the opinion above; al-Marri is being held because documents uncovered by the government explicitly tie him to al-Qaeda, and two previous arrests (dismissed due to lack of standing) show his behavior to be in complete accord with the training he's had with al-Qaeda. The charge is "being an al-Qaeda operative," which invokes the AUMF.

You are claiming that al Marri is an enemy soldier?

I'm claiming that al-Marri is the non-state functional equivalent of a spy or saboteur, which falls under military authority.

Anyway, you have avoided answering my question

I'm not avoiding it, I'm telling you that it's a nonsense question, for all the reasons above. You might as well be asking "how far is green?" What I am suggesting is that holding someone identified by al-Qaeda documents as an agent, who in addition has acted both against US law and in a manner consistent with being an al-Qaeda agent, until such time as al-Qaeda and the US have ceased hostilities is, in fact, "force" under the AUMF.

it's disputed right in the dissent to the opinion above...The charge is "being an al-Qaeda operative," which invokes the AUMF

The dissent says no such thing: you made that up.

I'm claiming that al-Marri is the non-state functional equivalent of a spy or saboteur, which falls under military authority

I agree with that. The most closely analogous case was decided in Ex Parte Quirin, where the US Supreme Court said that under the Articles of War the president had the authority to order military tribunals for spies or saboteurs captured on US soil. But there is a fundamental difference between how saboteurs were handled then and how the Bush Administration has handled al Marri: Spies in World War II were charged with crimes, put on trial, and allowed to argue their case. Ex Parte Quirin said, in part,

(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted

Al Marri is being held without charge, and there are apparently no plans on the part of the Bush Administration to put him on trial, whether before a military tribunal or a civilian court.

What I am suggesting is that holding someone identified by al-Qaeda documents as an agent, who in addition has acted both against US law and in a manner consistent with being an al-Qaeda agent, until such time as al-Qaeda and the US have ceased hostilities is, in fact, "force" under the AUMF

What I am saying is that "force" does not, and cannot, mean that the president may take any action he wishes. The president is still constrained by the Constitution and the laws of the United States. You have said that al Marri "has acted both against US law and in a manner consistent with being an al-Qaeda agent," and the evidence as we know it supports that. Why, then, should al Marri not be treated as someone who has broken the law? Why not charge him, whether before a properly constituted tribunal or in civilian court? Our system of laws says that the president has to do one or the other - the president may not arbitrarily change the law and call that change the "use of force."

The dissent says no such thing: you made that up.

It does, and I didn't. The dissent explicitly notes the government declaration filed by Joint Intelligence Task Force for Combating Terrorism Director Jeffrey Rapp, on page 82. I even excerpted that very quote in this response to Thalia here. That specific declaration was used to invoke the AUMF, and it was good enough for the lower court to decide in the government's favor.

Why, then, should al Marri not be treated as someone who has broken the law? Why not charge him, whether before a properly constituted tribunal or in civilian court?

He was charged -- twice, on a total of eight different counts. But, ha-ha! Those cases were dismissed for lack of standing ("Lack of venue" was the specific ground quoted in both cases. If I understand this correctly, this is due to some transactions of the crimes taking place outside the US. But, IANAL.) Al-Marri can't be charged again for those same crimes, as that would be double jeopardy. So, the alternatives available to the government were detain him, or let him go and wait for him to commit more crimes. I think they made the right choice.

I also think that this isn't the gross overreach of authority you and others seems to. A debatable choice, sure -- and the courts are debating it (as are we). The president isn't changing the laws at whim. The executive branch was legally granted authority, and it's exploring the limits of that authority. The questions which have arisen are largely due to the unconcern we as a nation have paid to this set of issues over the years.

The dissent explicitly notes the government declaration filed by Joint Intelligence Task Force for Combating Terrorism Director Jeffrey Rapp, on page 82. I even excerpted that very quote in this response to Thalia here. That specific declaration was used to invoke the AUMF, and it was good enough for the lower court to decide in the government's favor

That declaration is not a criminal charge. Above you claimed that "being an al-Qaeda operative" is a criminal charge, but it is not, and the dissent doesn't say it is.

He was charged -- twice, on a total of eight different counts. But, ha-ha! Those cases were dismissed for lack of standing ("Lack of venue" was the specific ground quoted in both cases. If I understand this correctly, this is due to some transactions of the crimes taking place outside the US. But, IANAL.) Al-Marri can't be charged again for those same crimes, as that would be double jeopardy

Dismissal of charges is not an acquittal; double jeopardy would not apply. And since those charges were dismissed, that goes to prove my point that he is being held without charges.

So, the alternatives available to the government were detain him, or let him go and wait for him to commit more crimes

AL Marri could have been held, legally, as a material witness, but there was no other legal means for the government to keep him imprisoned. I know that you think the government made the right decision, but at least have the intellectual honesty to admit that they were acting illegally and unconstitutionally. Read the text of the AUMF. It clearly is about the use of military force, not expanded police powers for the executive. There are other laws under which al Marri could have been charged if he had attended an al Qaeda training camp, which is what has been claimed.

That declaration is not a criminal charge.

I agree. It is not a criminal charge. It is, however, still a charge -- a formal assertion of offenses by al-Marri against the United States suitable for military jurisdiction.

Dismissal of charges is not an acquittal; double jeopardy would not apply.

Fair enough. I misunderstood that part of the law.

Read the text of the AUMF. It clearly is about the use of military force, not expanded police powers for the executive.

The military acts under the direction of the executive office -- the president is, after all, the Commander in Chief of the armed forces. And detaining combatants is an appropriate use of military force, and always has been.

I know that you think the government made the right decision, but at least have the intellectual honesty to admit that they were acting illegally and unconstitutionally.

I would if I believed that, but I don't. I recognize that al-Marri is getting the worst of all possible worlds: long detention, then (most likely) a military tribunal. I'm OK with that because al-Marri is the worst of all possible worlds: a member of a non-state enemy group sworn to work in secret to destroy the United States and its citizens. There is nothing that can convince me the intent of the Constitution is to protect the right to destroy the country -- "not a suicide pact," and so on. Any reading of constitutional rights which has the functional effect of protecting the right of destruction is absurd.

It is not a criminal charge. It is, however, still a charge -- a formal assertion of offenses by al-Marri against the United States suitable for military jurisdiction

You are wrong for three reasons:

First, and most obviously, an assertion of jurisdiction is not a criminal charge.

Second, the military has not charged al Marri with anything and seemed to have no plans to do so at the time this case was argued. From the decision,

In the four years since the President ordered al-Marri detained as an enemy combatant, the Government has completed CSRTs for each of the more than five hundred detainees held at Guantanamo Bay. Yet it was not until November 13, 2006, the very day the Government filed its motion to dismiss the case at hand, that the Government even suggested that al-Marri might be given a CSRT. At that time the Government proffered a memorandum from Deputy Secretary of Defense Gordon England directing that al-Marri be provided a CSRT "upon dismissal" of this case. This memorandum is too little too late

Third, and finally, nether the Military Commissions Act (MCA) nor the Detainee Treatment Act (DTA) apply to aliens captured on US soil,

Congress sought to eliminate the statutory grant of habeas jurisdiction for those aliens captured and held outside the United States who could not lay claim to constitutional protections, but to preserve the rights of aliens like al-Marri, lawfully residing within the country with substantial, voluntary connections to the
United States, for whom Congress recognized that the Constitution protected the writ of habeas corpus

...detaining combatants is an appropriate use of military force, and always has been

Determining what is "an appropriate use of military force" is not entirely under the purview of the executive. Congress can place limits on the extent of permissible force and on what range of actions properly constitute powers delegated to the military. In this case the limits are set forth in the MCA, DTA, and other laws such as the Patriot Act and earlier laws that deal with terrorism. You are suggesting that the president has unfettered authority, whether at home or abroad, as long as he claims that his actions are connected to the entities and events mentioned in the AUMF. That is not a reasonable interpretation of the words or history or context of the AUMF.

Any reading of constitutional rights which has the functional effect of protecting the right of destruction is absurd

I suggest you read the court's decision. It has no such functional effect since they plainly say that the only change to al Marri's status that they are ordering is the end to military detention and that "The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act." Any of those choices would prevent al Marri from participating in the destruction of the United States.

In this case the limits are set forth in the MCA, DTA, and other laws such as the Patriot Act and earlier laws that deal with terrorism. You are suggesting that the president has unfettered authority, whether at home or abroad, as long as he claims that his actions are connected to the entities and events mentioned in the AUMF.

Nope. I'm suggesting that the AUMF grants authority to the president over the disposition of al-Marri, in accordance with the MCA, DTA, and so on.

I suggest you read the court's decision.

The court's decision was that the MCA and DTA didn't apply, which leads me to conclude the decision will be overturned. Or, possibly, that either one or both of the MCA and DTA will be ordered legislatively revised so that al-Marri's case can be considered. Either way, I don't expect this decision to stand.

Reduced to it's essense, the opinion states that the MCA can't apply because  A) the declaration by Rapp I've noted above only counts as an intent by the government to determine al-Marri's standing (pages 16-20), and B) the government does not intend to determine al-Marri's standing (pages 20-26). In other words, it's nonsense. If the court wants to conclude that there must be a set length of time to determine an enemy combatant's status and that it must apply equally to cases where the US controls the ground and where it doesn't, fine -- but those calls must be addressed legislatively, not judicially.

Any of those choices would prevent al Marri from participating in the destruction of the United States.

Rebuttals of those choices in order: unless charges were dismissed for lack of standing, yet again; deportation wouldn't prevent a damn thing; only until the mandated limit for holding witnesses; only until the mandated limit to holds under the Patriot Act. All of those are almost assuredly less than "until the end of the conflict with al-Qaeda" and would be a equivalent of granting legal protections to a saboteur -- exactly the functional protection I'm complaining about.

the opinion states that the MCA can't apply because  A) the declaration by Rapp I've noted above only counts as an intent by the government to determine al-Marri's standing (pages 16-20), and B) the government does not intend to determine al-Marri's standing (pages 20-26)

And C) Because the MCA and DTA were not intended by Congress to apply to anyone captured in the US, as I noted in my comment above. (They also quoted an Alberto Gonzales statement before Congress that supports their interpretation of Congressional intent and the scope of the DTA and MCA.)

If the court wants to conclude that there must be a set length of time to determine an enemy combatant's status and that it must apply equally to cases where the US controls the ground and where it doesn't, fine -- but those calls must be addressed legislatively, not judicially

It wasn't the length of time that was the problem, but the complete inaction on the part of the government to take the steps required under the DTA and MCA.

All of those are almost assuredly less than "until the end of the conflict with al-Qaeda" and would be a equivalent of granting legal protections to a saboteur -- exactly the functional protection I'm complaining about

You are ignoring the fact that there are already laws against terrorism, and that if al Marri truly did what is alleged in the presidential determination (that he "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism") then he can be charged criminally.

And C) Because the MCA and DTA were not intended by Congress to apply to anyone captured in the US, as I noted in my comment above.

I'm pretty sure the authors of the Commerce Clause never intended it to support gun-free school zones. If Congress wants the MCA and DTA to exclude enemies operating on US soil, they can amend the laws to make that explicit. (Or try to -- it would really be amusing to watch a Democrat-controlled Congress attempt to pass legislation which protects enemies within the US. Talk about feeding red meat to the opposition.)

It wasn't the length of time that was the problem, but the complete inaction on the part of the government to take the steps required under the DTA and MCA.

There's no way the court can rule that without creating law. Since the opinion neither castigates the government for it's role in holding men captured in Afghanistan for a theoretical 5-1/2 year maximum (at the time of the ruling) nor specifies when the final CSRT for those same took place, it can only engage in a process knows as "Making Shit Up" to find fault with al-Marri's 4-year detention. Furthermore, the opinion recognizes that the government held a hearing in accordance with CSRT protocol, then said the letter of the law wasn't good enough. I'll state that last again: the court ruled that following the letter of the law is not sufficient. Why that little bit of prestidigitation doesn't worry you, I don't know.

if al Marri truly did what is alleged in the presidential determination (that he "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism") then he can be charged criminally.

And if, as I suspect, this ruling is overturned, he can be charged militarily as well. Maybe it's me, but I don't see an overabundance of ways to stop terrorism as a problem, per se.

If Congress wants the MCA and DTA to exclude enemies operating on US soil, they can amend the laws to make that explicit

The DTA specifically mentions, "Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq." I have also cited excerpts from the court's opinion that show they examined the legislative history of the MCA and even that the attorney general testified before Congress that the MCA would not statutorily remove Habeas Corpus from anyone on US soil.

There is no need for Congress to amend these laws: the court read them correctly.

...the opinion recognizes that the government held a hearing in accordance with CSRT protocol...

I guess I missed that part. What I read (also cited above) was,

...it was not until November 13, 2006, the very day the Government filed its motion to dismiss the case at hand, that the Government even suggested that al-Marri might be given a CSRT. At that time the Government proffered a memorandum from Deputy Secretary of Defense Gordon England directing that al-Marri be provided a CSRT "upon dismissal" of this case

In other words, the government never had any intention of holding a CSRT for al Marri. Or maybe they just forgot. Either way, you cannot say they were adhering to the letter of the law.

Maybe it's me, but I don't see an overabundance of ways to stop terrorism as a problem, per se

Why not charge al Marri under existing laws?

Either way, you cannot say they were adhering to the letter of the law.

Enh, debatable. If I write articles and give speeches about how I'm not going to pay income tax, but still manage to get a 1040 form in the mail at 11:59pm on the last filing date, it still counts. Do I think the government was ass-covering? Sure. Do I think that makes it illegal? No.

Why not charge al Marri under existing laws?

That way had already failed twice.

He was charged -- twice, on a total of eight different counts. But, ha-ha! Those cases were dismissed for lack of standing ("Lack of venue" was the specific ground quoted in both cases. If I understand this correctly, this is due to some transactions of the crimes taking place outside the US. But, IANAL.) Al-Marri can't be charged again for those same crimes, as that would be double jeopardy. So, the alternatives available to the government were detain him, or let him go and wait for him to commit more crimes. I think they made the right choice.

Or they could have taken a third way in the first place. Perhaps just kept him under surveillance from the start until they were sure they had evidence on an actual, prosecutable crime instead of going off half-assed unprepared and arresting him for something that they were unable to convict him of in court. Then, when they actually had evidence of "terrorism" (if there ever was any) they could try him in public and we wouldn't be having this conversation right now.

I shudder to think what would happen if every criminal defendant was rounded up and tossed in the brig simply because the investigating law enforcement types screwed up the investigation.

Perhaps just kept him under surveillance from the start until they were sure they had evidence on an actual, prosecutable crime instead of going off half-assed unprepared and arresting him for something that they were unable to convict him of in court.

That's not a third way, that's the first way. That is "let him go." You seem to presume that surveillance would be any less subject to constitutional guarantees. So what happens if (when) al-Marri starts filing suits to prevent "government harassment"? Under your view, he still needs to be considered innocent, yes?

HOW do you know this person is an "actual spy or saboteur"?  Last I checked, the U.S. government has not made any attempt to demonstrate this.  Am I missing a conviction in a court that demonstrates such a status?  Just because the Administration says someone is a spy or saboteur does not make them one.  THAT is what the right to a trial is supposed to provide, identification of the "actual" spies and saboteurs v. those that are merely accused.

The reason why soldiers in uniform can be held as POWs, and that is not indefinite I might add, is because they are clearly identified as soldiers.  You don't accidentally get into uniform & shoot at U.S. military targets.  In contrast, you can be accused of being a terrorist for no real reason.  THAT is why there is a Constitutional requirement that the government demonstrate in front of a neutral party (court) that the accusation is accurate.

Thalia

HOW do you know this person is an "actual spy or saboteur"?  Last I checked, the U.S. government has not made any attempt to demonstrate this.

Then you clearly haven't checked the opinion. From pages 6 and 7:

In February 2002, al-Marri was charged in the Southern District of New York with the possession of unauthorized or counterfeit credit-card numbers with the intent to defraud. A year later, in January 2003, he was charged in a second, six-count indictment, with two counts of making a false statement to the FBI, three counts of making a false statement on a bank application, and one count of using another person's identification for the purpose of influencing the action of a federally insured financial institution. Al-Marri pleaded not guilty to all of these charges. In May 2003, a federal district court in New York dismissed the charges against al-Marri for lack of venue.
[...]
In the order, President George W. Bush stated that he "DETERMINE[D] for the United States of America that" al-Marri: (1) is an enemy combatant; (2) is closely associated with al Qaeda; (3) "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism;" (4) "possesses intelligence . . . that . . . would aid U.S. efforts to prevent attacks by al Qaeda;" and (5) "represents a continuing, present, and grave danger to the national security of the United States." The President determined that al-Marri's detention by the military was "necessary to prevent him from aiding al Qaeda" and thus ordered the Attorney General to surrender al-Marri to the Secretary of Defense, and the Secretary of Defense to "detain him as an enemy combatant."

And from pages 82-83:

Like Padilla, al-Marri, an identified al Qaeda associate, was dispatched to the United States by the September mastermind as a "sleeper agent" and to explore computer hacking methods to disrupt the United States' financial system. Moreover, al-Marri volunteered for a martyr mission on behalf of al Qaeda, received funding from a known terrorist financier, and communicated with known terrorists by phone and e-mail. Decl. of Jeffrey N. Rapp, Director, Joint Intelligence Task Force for Combating Terrorism, ¶ 7, Sept. 9, 2004. It is also interesting to note that al-Marri arrived in the United States on September 10, 2001.

2Al-Marri not only failed to offer any evidence on his behalf, he refused to even participate in the initial evidentiary process. Al-Marri, 443 F. Supp. 2d at 785.

In February 2002, al-Marri was charged in the Southern District of New York with the possession of unauthorized or counterfeit credit-card numbers with the intent to defraud. A year later, in January 2003, he was charged in a second, six-count indictment, with two counts of making a false statement to the FBI, three counts of making a false statement on a bank application, and one count of using another person's identification for the purpose of influencing the action of a federally insured financial institution. Al-Marri pleaded not guilty to all of these charges. In May 2003, a federal district court in New York dismissed the charges against al-Marri for lack of venue.

I bet thousands a year get charged with white collar crimes like this.

In the order, President George W. Bush stated that he "DETERMINE[D] for the United States of America that" al-Marri: (1) is an enemy combatant; (2) is closely associated with al Qaeda; (3) "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism;" (4) "possesses intelligence . . . that . . . would aid U.S. efforts to prevent attacks by al Qaeda;" and (5) "represents a continuing, present, and grave danger to the national security of the United States." The President determined that al-Marri's detention by the military was "necessary to prevent him from aiding al Qaeda" and thus ordered the Attorney General to surrender al-Marri to the Secretary of Defense, and the Secretary of Defense to "detain him as an enemy combatant."

It's a good thing we can take the word of the president at face value to be equal to that or higher than the weight of a judge and jury convicting a person. Or not.

Like Padilla, al-Marri, an identified al Qaeda associate, was dispatched to the United States by the September mastermind as a "sleeper agent" and to explore computer hacking methods to disrupt the United States' financial system. Moreover, al-Marri volunteered for a martyr mission