Wednesday, February 18, 2009

"Terrorist" Detention, USA: The Hard Cases - Jane Mayer in The New Yorker

Detailing Obama's 'Hard Cases' Listen Now to Terry Gross interview with Jane Mayer from February 18, 2009:
here

An excerpt from The New Yorker February 23, 2009 issue:

...Jonathan Hafetz, a lawyer with the American Civil Liberties Union, who has taken the lead role in Marri’s legal defense, says that the Bush Administration’s decision to leave him in sustained isolation was akin to stranding him on a desert island. “It’s a Robinson Crusoe-like situation,” he told me. In 2005, Hafetz challenged the constitutionality of Marri’s imprisonment. A lower court affirmed the government’s right to detain him indefinitely. After several appeals, the case is scheduled to be heard by the Supreme Court in April. Hafetz calls the Marri case a pivotal test of “the most far-reaching use of detention powers” ever asserted by an American President.

The Court’s calendar requires the Obama Administration to file a reply to the challenge by March 23rd. Unless some kind of diversionary action is taken—such as sending Marri home to Qatar, or working out a plea agreement—the Court’s schedule will likely force the Obama Administration to offer quick answers to a host of complicated questions about its approach to fighting terrorism.

John Bellinger III, who served as the counsel to the State Department under President Bush, says of officials in the Obama Administration, “They will have to either put up or shut up. Do they maintain the Bush Administration position, and keep holding Marri as an enemy combatant? They have to come up with a legal theory.”

(Among) the issues to be decided, Hafetz says, (are) “the question(s) of who is a soldier, and who is a civilian. Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the President?” Hafetz wants the Supreme Court to rule that indefinite executive detention is illegal, and he hopes that Obama will withdraw Bush’s executive order labelling Marri an enemy combatant, and issue a new one classifying him as a civilian. This shift would allow Marri either to be charged with crimes or to be released.

The Obama Administration’s strategy in the Marri case will almost certainly establish legal principles that will have ramifications for future cases, as well as for the two hundred and forty or so similarly designated “unlawful enemy combatants” held in the military prison at Guantánamo Bay, Cuba. During the Bush years, the designation encompassed not just members of Al Qaeda and the Taliban but also anyone who associated with them, supported them, or supported organizations associated with them, even if unwittingly. In 2004, a Bush Administration lawyer told a judge that, in theory, an enemy combatant could even be “a little old lady in Switzerland” whose charitable donations had been channelled, without her awareness, to Al Qaeda front groups.

If the Marri case reaches the Supreme Court, it will test the limits of such theories. The case is therefore being closely watched by civil libertarians on both the left and the right. The Center for Constitutional Rights, a liberal advocacy organization, and the Cato and Rutherford Institutes, which lean to the right, are among the many legal groups that have signed eighteen amicus briefs on Marri’s behalf. Individual lawyers who have taken up his cause include Nicholas Katzenbach, the Attorney General in the Johnson Administration, and William Sessions, who was appointed director of the F.B.I. by President Reagan. The editorial page of the Times has written repeatedly about the case, demanding that the Fourth Circuit Court of Appeals’ affirmation of Marri’s military detention be reversed: “People accused of bad deeds should be tried in court—not in sham proceedings. They should be put in jail—not secret detention.”

No matter how Obama responds to the case, his decision is likely to arouse controversy. Hafetz says, “If President Obama is serious about restoring the rule of law in America, they can’t defend what’s been done to Marri. They would be completely buying into the Bush Administration’s war on terror.” This view is widely held by Obama’s political base. Yet the political risks of change are obvious...

Read all seven pages:

here

Also see Brennan Center for Justice
here

3 comments:

CN said...

Current News find all these items below at http://www.bordc.org (scroll down) or go directly to http://www.bordc.org/news/ and sign up for free daily emails...

2/18, Del Quentin Wilber, Washington Post, Court Reverses Ruling Bringing 17 Detainees to U.S.

2/18, Associated Press, AG Holder headed to Guantanamo Bay to see facility

2/18, Richard Norton-Taylor and Ian Cobain, Guardian (UK), MI5 fed questions to CIA for interrogation

2/18, Carol Rosenberg, Miami Herald, White House lawyer visiting Guantánamo prison camps

2/18, BBC News, Sweden accepts ex-Guantanamo man

2/17, George Frey, Associated Press, US Army Sergeant will testify in Iraq slay trial

2/17, Andrew Morgan, Jurist, Canada court rejects Guantanamo detainees' bid to access intelligence records

2/17, Safiya Boucaud, Jurist, Italy official says country will not accept Guantanamo detainees

2/17, Gabor Rona, Jurist, Obama Administration must define 'enemy combatant' consistent with traditional laws of war

2/17, Charlie Savage, New York Times, Obama's War on Terror May Resemble Bush's in Some Areas

2/17, Marc Santora, New York Times, Iraq Says It Is Interrogating 4 Men Returned by U.S. From Guantánamo Prison

http://www.bordc.org

CN said...

Rights Groups Release Documents Obtained in FOIA Case Relating to Secret Detention, Extraordinary Rendition, and Torture Program

New Evidence of DOD Cooperation with CIA Ghost Detention Program

http://www.ccrjustice.org/newsroom/press-releases/rights-groups-release-documents-obtained-foia-case-relating-secret-detention

keep watching ccrjustice.org

CN said...

Hello, I'm figuring if you got this far down in reading you may appreciate this information:

To schedule an interview with Aziz Huq or Emily Berman, counsel for Mr. al-Marri, please contact them directly at 212-992-8632 and 212-992-8659, or via email at aziz.huq@nyu.edu and emily.berman@nyu.edu, respectively. Jonathan Hafetz has moved to ACLU's National Security Project. To schedule an interview with him, please contact Mr. Hafetz at either 212-284-7321 (work) or 917-355-6896 (cell).

Also, Jane Mayer, in the Terry Gross interview yesterday, gave a clear astounding list of what the Obama admin. has deleted from the Bush admin...despite Bush folk predicting things would be exactly the same with terrorist torture policy...

However, as you well know, there are grave concerns about the time-table for the well-being of so many detainees...who are dying, who's lives are ruined...who for all intents & purposes STILL face hidden or real extra-judicial execution by federal gov if not by suicide and slow deaths by fasting...

And who's to report & know about all the deaths via renditions, missing persons, etc.

Keep watching Marjorie Cohn on renditions... and maybe there will be more actions suggested soon by Amnesty, CCR, Reprieve, Bill of Rights Defense Committee, Caged Prisoners and others?

Thanks for helping with your own expertise - however you are able or inclined...

++++++

Ali Saleh Kahlah al-Marri

– Ongoing

The Brennan Center for Justice is representing Ali Saleh Kahlah al-Marri in two cases involving the U.S. government. Al-Marri v. Spagone (formerly Al-Marri v. Pucciarelli), a habeas corpus action, challenges the Executive's claim to unchecked authority to indefinitely detain a legal resident in the United States without any charge of wrongdoing. In Al-Marri v. Gates, the Brennan Center is contesting Mr. al-Marri's treatment and conditions of confinement since he was declared an "enemy combatant" in 2003.

Al-Marri v. Spagone case documents | Al-Marri v. Gates case section

Supreme Court Amici Briefs | Al-Marri in the News
Al-Marri v. Spagone

In Brief – Mr. al-Marri, a citizen of Qatar and legal U.S. resident, was arrested in Peoria, Illinois, in 2001 as a material witness in the FBI's investigation of 9/11. In 2002, he was charged with credit card fraud and other criminal offenses. Shortly before his criminal trial commenced in June 2003, President Bush declared him an "enemy combatant" and moved him to a Navy Brig in South Carolina, where the government has subjected him to torture and other cruel treatment. Over five years later, Mr. al-Marri still remains in solitary confinement without charge.

Question Presented – Does the Executive have legal authority to detain a legal resident arrested in the United States without charge by declaring him an "enemy combatant"? This case challenges the President’s assertion of unchecked executive detention power over all individuals in the United States.

Procedural History – Counsel for Mr. al-Marri filed for certiorari review in the Supreme Court of the United States following the Forth Circuit Court en banc decision on July 15, 2008. The U.S. Supreme Court granted Mr. al-Marri certiorari review on December 5, 2008. The Petitioner's brief was filed on January 21, 2009. The Government has requested and been granted a 30-day extension in responding to the Petitioner. The Government's reply brief will be due on March 23, 2009. On January 22, 2009, Preisdent Obama issued an executive memorandum to review the status of Mr. al-Marri's detention.