The al-Marri case and beyond: what do you do with a suspected terrorist? (Part I)
Our legal system is remarkably flexible. No law, or set of laws, can foresee the future; the best the law can do is adapt to changing circumstances.
How that adaptation occurs can vary; sometimes it’s through legislation and/or acts of Congress, sometimes by executive order, sometimes through judicial decisions that overrule previous ones, and far less often through Constitutional amendment. Often it’s by a combination of approaches in which the courts are called on to interpret and rule on the acts of the other branches of government.
In the post-9/11 world one thing has been clear: the system that was in place at the time (including the much-criticized firewall) failed to function adequately to prevent the attack. Since then the efforts of the Bush administration—whether you agree or disagree with them—have focused on correcting that situation to make it more likely that we can prevent subsequent attacks.
But our criminal justice system quite clearly never envisioned anything that has the scope that modern-day terrorists, combined with modern-day Western technology—including the possibility of nuclear weapons—could wreak. Islamic totalitarian terrorists are not ordinary killers, although they sometimes appear to resemble them. But their goals include a stated desire to bring down our government and/or our economy, as well as our way of life.
Some think they are overreaching, that they have no way to accomplish their aims and that it is ludicrous to think so. Others think failing to take them seriously represents a lack of imagination on our part, and that we are far more vulnerable than we care to think.
Terrorists—even Islamic totalitarian terrorists—are not a unitary bunch. Some are state-sponsored, which would put them somewhat in the league of traditional spies. More often they are connected with trans-national worldwide organizations such as al Qaeda that have dedicated themselves (at least in their own minds) to our destruction. Terrorists can also be freelance individuals, but those fitting that description don’t seem to be very numerous, and their acts so far (except for the anomalous and non-Islamic Timothy McVeigh) seem to be of much smaller scope. The latter group of individuals, however, are the ones who most clearly fall under the aegis of our traditional criminal justice system.
The truth is that present-day Islamic jihadi terrorists occupy a gray and exceedingly non-traditional area because of their ambitions and reach, and the Bush administration’s actions in setting up Guantanamo and dealing with people such as al-Marri though the military system (he was interned in military custody in South Carolina) are attempts to tackle this new situation in a way that would protect us from future large-scale attacks that could undermine our very way of life. Because of the scope and reach of modern terrorism, the administration feels it necessary to suspend some of the protections of the traditional criminal justice system in dealing with suspected perpetrators and/or planners.
This approach is inherently problematic, and concerns about it are well-placed. The hallmark of our country is the supreme importance we place on guaranteeing individual liberties. It is often remarked that our criminal justice system is one that accepts the fact that every now and then a guilty person will go free because of restrictions placed on that system in order to preserve the rights of all.
That said, though, the military has always had its own justice system running parallel to the civilian one, with rules of evidence that don’t have quite the same built-in protections. In addition, times of war have often brought suspension of those protections—anyone who reads the criticisms of Lincoln’s actions during the Civil War knows that he suspended the writ of habeas corpus and held civilians (and in fact citizens, not just aliens like al-Marri) in military custody.
Habeas corpus is mentioned specifically in the Constitution, in Article I, Section 9 which says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” So, “public safety” has always been recognized as a reason to relax the rules.
“Rebellion” and “invasion,” like all other terms, require legal interpretation. Lincoln certainly felt the Civil War qualified, and he justified his acts with the following statement, among others:
Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?
The idea, both in the Constitution and Lincoln’s words and deeds, is that some threats are so great that we must be willing to give up a small portion of our rights temporarily in order to make sure they can endure more permanently when the threat is past. The problem now, as then, is whether the present threat is great enough to justify such an approach. The answer, of course, is an ambiguous one, often decided by one’s political leanings. The truth is that no one can say.
The writ of habeas corpus was violated again during World War II when thousands of people of what was then called “enemy ancestry” were relocated and detained simply on the basis of their racial and ethnic background (see this for a relatively concise but thorough discussion of that controversial episode in American history). The subject matter is too complex for a full discussion here, but there are many misconceptions about what actually happened. One not very well-known fact is that citizens of German and Italian ancestry were affected as well as Japanese, and that American citizens of Japanese descent were allowed to live outside of camps as long as they relocated away from designated areas on the West Coast that were considered especially vulnerable. In addition—and most relevant to the al-Marri case—a special prison camp at Tule Lake was set up for non-citizen Japanese resident aliens who were suspected of treason or special dangerousness.
We have now come to believe that these measures were overreactions, especially the relocation of citizens and non-citizens alike (based on racial classifications only) who were not even suspected of any specific criminal or treasonous intent.
World War II was a declared war, and a conventional one at that. The same was true of the Civil War. Is the current situation analogous? Can we be at war with a shadowy organization such as al Qaeda? Al Qaeda certainly thinks so; it declared war on us back during the Clinton administration, and although most people hardly noticed that fact at the time, al Qaeda most definitely made good later on their pledge. But have we declared war on it in return—and, in fact, is it possible to declare war on such an entity?
The Constitution is terse on the topic of war; it grants Congress the power to declare it without defining it. One imagines the founders thought a definition of what entities war could be declared against to be so self-evident as to be unnecessary, but they could hardly have foreseen the confusing situation we face today. The Constitution also mentions that Congress has the power “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; and the power to make rules concerning captures on land and water.” It was under these powers that Congress enacted the Military Commissions Act, for example (an act which doesn’t apply to the al-Marri case, since he was seized while legally residing in this country). And although terrorism is somewhat similar to piracy, it really is not exactly the same.
The majority of the judges in al-Marri felt that the executive branch had overreached here, and remanded al-Marri to the ordinary criminal justice system. But is that system adequate to deal with the potential al-Marris of the world, and worse? And, if not, what system would be better able to do so?
(Part II coming tomorrow.)
Referring to the Lincoln and Roosevelt legal matters, and also to Civil matters taken by Wilson and Truman, these abridgements are resolved after the emergency passes. It would be easier to undo harm by these actions than the opposite case, where we did too little.
Life is about choices.
Pushing for a suspension of habeas corpus has cost(lost?) the pro war crowd majority support for the war in Iraq and any possible attack on Iran.
Which is more important in the long run?
My Dad’s uncle was detained during WWII for belonging to a German-American beer club.
I’m not sure for how long he was held, but when I tell others outside the family that yes, Americans of other ancestry besides Japanese lost their rights and were detained — they’ve never heard it.
They always ask what he did, was this a Nazi front group, and I have to explain no, all they did was to socialize, speak the old language and drink beer. That’s it.
I fully appreciate the rights of our country, and understand the slippery slope we’re facing but point of fact – I’d wager the few picked up and held now were probably picked up on better evidence than the equavalent of belonging to my Great Uncle’s beer club.
That being said, what really bothers me that from what I understand al-Marri wasn’t even given a millitary tribunal as was done in gitmo. He’s just being held.
We as a nation have got to come up with a better way of dealing with the “enemy combatants” we capture, they’re not POW’s in the old sense but self-declared warriors … so what do we do with them?
Looking forward to your Part II.
The laws of war used to be fairly clear: soldiers fighting in civilian garb could be summarily shot. Pirates and others fighting under no national flag were enemies of all and were treated as such.
Treating captured jihadis like they were mundane criminal defendants is so freakin’ idiotic that it’s impossible for me to believe the people who advocate it are really that stupid or that crazy. The only logical conclusion is that they simply want to make sure that as many terrorists as possible go free to kill again.
It’s all quite simple: liberals want to kill you.
A question: was the War Between The States actually a declared war on the Union side? To have done so would have been to recognized the Confederacy as a sovereign nation, would it not? Of course, on the side of the Confederacy it would have been declared on that very theory.
Hi –
What makes this question particularly interesting is that al-Queda is less a terrorist group as much more a terrorist movement, i.e. the degree of control is very broad and the ties are in many cases very loose. It’s an ideology, not a clear party-like organization.
That means that you could theoretically have al-Queda operating in the US right now and only realize and recognize the connections ex post facto, and never before the facts, as you can’t read the mind of someone who has decided to do an act of terror before he does it.
But how do you deal with an ideology that uses terror as a part of its ideology? There is only one way: to undermine from within, exposing its tenets as falsehoods and destroying it internally. This is, ultimately, what was done with communism, but that took 50 years to do so.
There’s a Woody Allen joke there somewhere, Opie.
We’d tell the Chinese that communism has been internally destroyed, but America’s economy would collapse without the billions of dollars they lend us every month.
Alphie, it’s the National Communists’ economy of China that would collapse without selling us the $billions of junk (see Jib Jab’s Big Box Mart) — if the US currency dropped faster, it would increase our exports and significantly reduce all imports (except oil). (Increasing demand for illegals)…
Neo, please consider trying to put in probabilities for the future: 1 in 10, 1 in 100, 1 in 1000.
The main way a criminal is caught is because of “so many” similar crimes. We don’t want to try to catch surviving terrorists AFTER they’ve murdered many innocents.
I think most AQ folk in America have something around a 1 in 50 to 1 in 200 chance of succeeding in killing a lot of folk without dying themselves (maybe 1 in 2 chance of successful suicide-murder). Neither the courts, nor the newspapers, nor even such great thinker writers as yourself seems willing to accept the need for quantifying the uncertainty.
Nor is there enough talk about what 1 in 5, 1 in 10, or 1 in 100 means. I note that drunk driving laws are essentially pre-emptive — most drunk drivers don’t hurt anybody while they’re driving drunk and get home safely. Yet the increase in probability of accident justifies quite steep penalities for those caught driving drunk (and worse penalties for drunks who actually do kill, usually). What is that increase? From 1 in 1 mil. to 1 in 1000? (I know that nobody knows precisely, but large number frequencies and estimates might be made).
In the same way, belonging to a terrorist group, not just a fallafel eating club, increases the risk to everybody else “hugely”.
The Civil War was NOT a declared war. Lincoln’s view was that he was dealing with a case of internal rebellion, not a war with an external enemy.
Hence, laws enacted by Congress or Executive Orders were also binding on the Southern rebels. Therefore, the Emancipation Proclamation was binding on the rebellious states.
Habeas Corpus was suspended for rebellion, not for war.
John wrote:
“But how do you deal with an ideology that uses terror as a part of its ideology? There is only one way: to undermine from within, exposing its tenets as falsehoods and destroying it internally.”
Not sure what your take on the Iraq invasion is, but I’m wondering how exactly that might fit in here…
Unknown –
Nice try, it doesn’t fit at all: you’re part of the problem, not the solution. You seem to think with your comment that we’re the problem: the US doesn’t use terror as part of its ideology.
Don’t forget, you need both counterattack and defense. Without counterattack, your defenses will eventually be overwhelmed; without defense, you’ll lose before your counterattack is successful.
This may be the part of the calculus that keeps getting lost in the political debate.
Neo, I can’t for the life of me understand why you think the ordinary legal system is incapable of handling terrorism suspects. Certainly that system won’t allow them to be tortured, which I suppose is disturbing to some. Otherwise, it allows the government to present evidence as to why they believe someone is a terrorist, and it allows the suspect to present evidence that he is not, and then a judge or jury decides whom to believe.
The prevailing system did not prevent the 9/11 attacks. The prevailing system also doesn’t completely prevent homicides, burglaries, rapes, or drunk driving. That doesn’t mean that we let the police start rounding up whomever they please and throwing them into indefinite detention. Our society demands that we function in a certain way, regardless of whether a different system might make us safer. In this society, we choose liberty and the rights guaranteed by our constitution.
Don’t you think they ought to be able to prove he did something wrong before they lock him up and throw away the key?
This kind of power in the hands of the government is anathema to everything America stands for. We are planting the seeds of totalitarianism.
I would rather live in a nation open to terrorist aggression than in a filthy neocon Reich. Safety is not preferable to tyranny.
Reddog-
I recall the saying: “Fascism is always descending on the US and landing in Europe”
There are two processes by which one can be detained. One is criminal; the other is military. The question is, how does one determine which category a suspect fits into before they are tried? If criminal, the rules are very clearly laid out. The weakness is on the military side. What kind of hearings are what type of defendants entitled to? How quickly must this hearing occur? What are the rules of evidence and dsiclosure?
The back end of the process seems to be pretty well defined, and that KSM, for example, got a fair hearing from his military court. However, the front end-figuring out which system a suspect belongs in, and how we ensure that he does not get stuck in limbo without any hearings-is what really needs to be better defined.
Apple,
Why are you so certain that the Military Commissions Act doesn’t apply? If the case goes up the Supreme Court might say it does.
What was the basis of Al-Marri’s detention in the first place? It had to be a lot more than just rumor and hearsay. When the government gets solid intelligence on a suspected terrorist (a member of an Al Queda cell or such) it’s a lot to ask that they wait for commission of a crime. The crime is, or should be membership in such an entity.
I await Part II
reddog:
You are correct, safety is NOT preferable to tyranny. This is exactly why terrorists such as al-Marri need to be dealt with decisively. If they are treated too leniently and allowed to remain free, we will end up not just not being safe–we will end up being tyrannized. Al Queda and other Islamo-fascist groups aren’t just trying to make a point here. They’re not punk kids seeking attention, even if it’s bad attention, to stroke their egos for a few years before entering society as productive adults. They are trying to annihilate not just a few prissy conservatives but the entire Western world and everything it stands for–liberal democracy, freedom, human rights and equality. The danger comes, not from within, but without. That ought to be quite clear in this situation.
Second, I take issue with your use of the phrase “filthy neocon Reich.” The German word “Reich” does in fact simply mean reign or kingdom and can be used freely auf Deutsch to refer to anything except Germany herself. But in English, it has clear connotations that connect it to Hitler’s Third Reich and thus Nazisismus, fascism, and WWII–and of course, these are exactly the connotations you intended. Never mind that that parallel is far to stark to be reasonably drawn–it seems to be difficult to dissuade the American Left from their BusHitler rhetoric. You may insult and insinuate as much as you please.
But if you ask a German about being terrorized by the state, about the recall of basic human rights, about stark terror perpetrated by the state in the name of supporting the government, you will not be regaled with stories of Nazi times. No, “Ostalgia” aside, the government the Germans still most closely associate with the sort of state-run terror of which you wish to accuse the neocons are not the Nazis but the Communist government of East Germany. You want to complain about the Patriot Act? Go to Berlin and look at the Stasi Akkords, room after room filled with files on each and every perfectly normal East Germany citizen, from politicians to schoolchildren. You want to complain about the laws governing determination of enemy combatant status? How about using children to rat out their parents for crimes such as receiving Western radio signals, crimes punishable by indefinite internment? You want to complain about fair treatment of known terrorists? How about the practice of taking seat covers or socks worn by a person–any old person will do, suspect or no–and bottling the scent so that, if ever there were some suspicion of anti-Communist activity by that person, the article of clothing could be given to hounds which would hunt the person down through the streets by smell? Don’t compare us to the Nazis, reddog dear. The Communists were far worse, not just in East Germany but all over the world, and their reign–their “Reich,” if you will, as you are so attached to that word–lasted for far longer and in fact still grips some nations today.
Your name suggests that you won’t take so kindly to this suggestion. But if you’re going to make us the bad guys, at least make us the really bad guys. Give us some credit, here.
Hi there…I found your site via Yahoo! when i was searching for south carolina court, and this post regarding The al-Marri case and beyond: what do you do with a suspected terrorist? (Part I) really sounds very interesting to me.. Thanks.