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Civil Liberties: Constitutional Roadblock

In a "major setback" to President Bush's terrorism detention policies, the Fourth Circuit Court in Richmond, VA, yesterday ruled that "the President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention."

June 12, 2007 by Faiz Shakir, Nico Pitney, Amanda Terkel, Satyam Khanna, and Matt Corley
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CIVIL LIBERTIES

Constitutional Roadblock

In a “major setback” to President Bush’s terrorism detention policies, the Fourth Circuit Court in Richmond, VA, yesterday ruled that “the President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.” In a 2-1 decision, the court declared that Ali Saleh Kahlah al-Marri, a Qatari national who is the last person on the American mainland known to be held as an enemy combatant, must be released from military detention. The ruling barred military detention of any civilian captured inside the United States, though the decision is limited to those who are in the country legally and have established connections here. The al-Marri ruling is only the latest in a series of blows to the Bush administration’s detainee policy. In 2006, the Supreme Court ruled that the original military commissions set up by the administration “were unauthorized by federal statute and violated international law.” Last week, two separate military judges ruled that the revised military commissions set up by the administration currently have no jurisdiction over any of the detainees at Guantanamo Bay because “there was a flaw in the procedure the military has used to file such charges against Guantanamo detainees.” On Sunday, Gen. Colin Powell, Bush’s first Secretary of State, publicly called for the closing of Guantanamo Bay and an end to the military commission system associated with it. As the New York Times writes today, this “ruling is another strong argument for bringing Mr. Bush’s detention camps under the rule of law,” which would entail repealing the Military Commissions Act of 2006, “closing Guantanamo Bay and…allowing the courts to sort out the prisoners…by the rules of justice that have guided this nation for more than 200 years.”

A CIVILIAN DETAINED: In 2001, Al-Marri was legally residing in the United States as a student at Bradley University when he was arrested soon after Sept. 11 for credit card fraud and lying to federal agents. He was also considered an alleged material witness in the 9/11 attacks. “On June 23, 2003, just weeks before Mr. al-Marri’s planned trial in the federal court, President Bush declared him an ‘enemy combatant’ in the ‘war on terror’ and ordered him transferred to military custody.” He was then “held incommunicado” at the Naval Consolidated Brig in Charlestown, SC, “for 17 months while being interrogated under allegedly coercive and abusive conditions.” In 2004, al-Marri’s counsel filed a petition for a writ of habeas corpus, challenging his detention and beginning a process which eventually led to yesterday’s decision. Writing for the majority, Judge Diana Gribbon Motz, wrote that al-Marri’s original transfer to military custody was “puzzling at best,” as the government offered no explanation for abandoning al-Marri’s prosecution other than their assertion that he “possesses information of high intelligence value” through an alleged relationship with al-Qaeda. The court concluded, however, that “even assuming the truth of the government’s allegations…the President’s constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri,” a citizen of a country in good standing with the U.S. who is in the country legally, “without criminal process any more than they permit the President to order the military to seize and detain without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing.”

NOT AN ENEMY ‘COMBATANT’: The Court’s decision is very specific in its ruling that the president’s word alone is not sufficient to legally declare someone an “enemy combatant.” Stating that while they “do not question the president’s war-time authority over enemy combatants,” the majority asserted that “absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the president with the power to exercise military authority over civilians within the United States.” In calling al-Marri an “enemy combatant,” the government never established that he “(1) is a citizen, or affiliate of the armed forces, of any nation at war with the United States; (2) was seized on or near a battlefield on which the armed forces of the United States or its allies were engaged in combat; (3) was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or (4) directly participated in any hostilities against United States or allied armed forces.” Under the court’s interpretation of precedent, a mere relationship to al-Qaeda is not enough to be classified an “enemy combatant” warranting indefinite military detention. Furthermore, the actual process for removing habeas status from someone declared an “enemy combatant,” as laid out in the Military Commissions Act of 2006, requires a two-step process. First, “there must be an initial decision to detain; then, there must be a subsequent official decision by the government that the initial decision was ‘proper.’ The government never took the second step throughout al-Marri’s entire detention, the Court determined.

A RETURN TO THE FEDERAL SYSTEM: As Powell said during his appearance on NBC’s Meet The Press recently, abandoning the administration’s misguided military detainee system does not mean the United States would “let any of those people go” who are suspected of terrorism. Rather, they would “simply” be moved to the United States and put “into our federal legal system.” The Fourth Circuit Court, which is generally considered one of the most conservative appellate courts, reaches a similar conclusion in determining that while al-Marri is accused of “grave crimes,” the prosecution of his case could and should be handled in the established criminal justice system. As Ken Gude, the Center for American Progress’s Associate Director for International Rights and Responsibility, has argued, the administration should “close the prison at Guantanamo, and shift detainee operations to Ft. Leavenworth, KS.” This move would allow the creation of a constitutional legal system for detainees that would provide for the conviction of terrorists. As it stands now, the lawless environment at Guantanamo and the questionable legal status of the current military commission system have dangerously tarnished the reputation of the United States abroad. These recent rulings against Bush’s detainee policy underscore that the administration’s extra-legal system has failed, and we should act expeditiously to move to a more just, constitutionally sound one.

UNDER THE RADAR

CONGRESS — CONSERVATIVES BLOCK NO-CONFIDENCE RESOLUTION ON GONZALES: The Senate voted yesterday on a no-confidence resolution for Attorney General Alberto Gonzales. At 53-38, the non-binding resolution fell seven votes short of passage. While the resolution was voted down largely on party lines, seven Republicans, disheartened with Gonzales’s management of the Department of Justice, voted for resolution. Sen. Joe Lieberman (I-CT) voted against the resolution, charging that Gonzales should “look into his heart and soul” for advice on resigning. “My vote against going ahead with more debate on this no confidence resolution is not an expression of confidence in Attorney General Gonzales. It is an expression of opposition to spending any more time on a resolution that will accomplish nothing, instead of going ahead with the next item of business, which is energy legislation,” said Lieberman. While some conservatives considered the resolution a “historical black mark,” Sen. Trent Lott (R-MS) tried to downplay its importance, stating, “Is this what the business of the Senate is really about? A nonbinding resolution proving what? Nothing.” Today, the White House also went on the offensive against critics of Gonzales. Writing an op-ed in USA Today, White House spokesperson Tony Snow vigorously defended Gonzales: “Gonzales doesn’t deserve this. He is a man of great dedication and integrity. … Real work beckons. Senators should resume debating immigration reform and energy legislation without further delay.” Despite the defeat, discontent with Gonzales is bipartisan. “There is no confidence in the attorney general on this side of the aisle,” said Sen. Arlen Specter (R-PA).

ETHICS — BUSH ADVISED TO DISCIPLINE DOAN ‘TO THE FULLEST EXTENT’: In a June 8 letter to President Bush, Special Counsel Scott Bloch recommended that the President discipline General Services Administration (GSA) chief Lurita Doan “to the fullest extent for her serious violation of the Hatch Act” and her refusal to cooperate “fully and honestly” in the course of his investigation. The Office of Special Counsel (OSC) investigation concluded that Doan had violated the Hatch Act — which prohibits the use of government resources for political activity — at a Jan. 26 luncheon “featuring a PowerPoint presentation about the November elections by the White House’s deputy director of political affairs.” OSC investigators found that following the presentation, Doan had “asked what could be done to ‘help our candidates,'” and several GSA appointees “responded with ideas of how the [GSA] could use its facilities to benefit the Republican Party.” Doan has denied any wrongdoing and told Congress under oath that she remembered little about the meeting, except that “there were cookies on the table.” Her lawyer said that the OSC had based its investigation on “tenuous inferences and careless leaps of logic” and argued that their conclusions were “far off the mark.” Bloch, however, said that Doan “has shown little ability to appreciate how her actions have affected the public trust or others in the administration who are watching.” “The White House declined to comment about who is reviewing the report or when the president will make a decision,” calling the matter an “internal deliberation.”

IRAQ — FAILED U.S. ESCALATION FORCES UNITED NATIONS TO SCALE BACK ASSISTANCE: 
A report released yesterday by U.N. Secretary General Ban Ki Moon evaluating events in Iraq over the last three months said that since “civilian casualties continue to mount” and “insurgent attacks persist,” the United Nations might be forced “to wind down operations due to unacceptable security risks.” Ban wrote that the United Nations must build an expensive “hardened integrated compound” within the already heavily fortified U.S.-controlled Green Zone for the U.N. mission to “operate effectively in the future.” The report comes at a time when Baghdad’s morgues are “overflowing with bodies,” and only 36 percent of Iraqis say their country is heading in the right direction — the lowest figure ever recorded in the survey — down from 70 percent in May 2003. Meanwhile, the top U.S. commander for the Middle East, Adm. William J. Fallon, told Prime Minister Nouri al-Maliki on Sunday that “the Iraqi government needs to make tangible political progress by next month to counter the growing tide of opposition to the war in Congress” — precisely the strategy for motivating the Iraqi government that President Bush previously dismissed as hampering U.S. military commanders by setting a “deadline for surrender.” The shift reflects the failure of Bush’s escalation policy , as “now that the troops are in place, the Iraqis [still] have little to show by way of political progress.” Even “our military commanders,” whose objectives Bush claims to be protecting, acknowledge that the “surge” cannot resolve Iraq’s civil war.

THINK FAST

“When the FBI asked Congress this spring to provide $3.6 million in the war spending bill for its Gulfstream V jet, it said the money was needed to ensure that the aircraft, packed with state-of-the-art security and communications gear, could continue to fly counterterrorism agents on ‘crucial missions’ into Iraq.” Instead, it is “now routinely used to ferry FBI Director Robert S. Mueller III to speeches, public appearances and field office visits.”

Male U.S. veterans are twice as likely to die by suicide than people with no military service, and are more likely to kill themselves with a gun than others who commit suicide, researchers said on Monday.”

“For the first time in five years, President Bush will attend the Senate Republicans’ weekly policy lunch today as he pushes to revive his moribund overhaul of the nation’s immigration laws.” But several Republican senators “issued a terse warning yesterday: Don’t expect much.”

“The nation’s growing cadre of home healthcare workers are not entitled to minimum wages or overtime pay under federal law, even if they work for private employers, the Supreme Court ruled today.”

“The first priority for the next president of the World Bank is to smooth ruffled feathers among the staff after the turbulent exit of Paul Wolfowitz, according to the leading contender to replace him.” Robert Zoellick acknowledged the staff has been “bruised and somewhat frustrated and there will be a need to calm the waters.”

A new U.N. report concludes that “civilian casualties continue to mount”” in Iraq, despite the Bush administration’s escalation. Violence has now spread beyond Baghdad, “to other parts of the country,” and the Baghdad morgue is overflowing with corpses.

“The humanitarian situation in Afghanistan has worsened in the last year and civilians are bearing the brunt of suicide attacks and aerial bombing raids, the International Committee of the Red Cross said on Tuesday.”

280: Number of colleges and universities that “have agreed to raise awareness about global warming and limit their institutions’ emissions in moving toward ‘climate neutrality.'”

And finally: Frustrated that he “risked being late for a TV interview on Saturday” because streets around the Italian Senate were blocked for President Bush’s visit, Italian Sen. Gustavo Selva called an ambulance to rush him to the studio. As he later boasted on television, Selva “dialed 118 for an ambulance asking to be rushed to his heart specialist — giving the TV studio’s address.” Selva may now face criminal charges for his stunt.

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GOOD NEWS

In a unanimous ruling yesterday, the Supreme Court went against the Bush administration and strengthened the landmark anti-pollution Superfund program, “enabling companies to recover costs when they voluntarily clean up hazardous material.”

STATE WATCH

GEORGIA: State Supreme Court rejects challenge to voter ID law.

VIRGINIA: In the wake of the Virginia Tech tragedy, a state investigation slams Virginia’s mental health system.

MISSOURI: “Insurance premiums that businesses must pay to care for injured workers have dropped.”

BLOG WATCH

THINK PROGRESS: Former Arkansas Gov. Mike Huckabee (R-AR): “Most” prisoners in the U.S. “would love” to be in Guantanamo.

BOX TURTLE BULLETIN: Surgeon General nominee Dr. James Holsinger peddles junk science.

TAPPED: For policy at the Justice Department, a degree from Pat Robertson’s Regent University is fine by President Bush, but when it comes to his own legal protection, Bush relies on graduates of elite Ivy League schools and West Point.

THE NOTION: In Iraq, U.S. troop deaths per month, American fatalities from homemade bombs, monthly insurgent attacks against coalition troops and civilians, and Iraqi deaths are at an all-time high.

DAILY GRILL

“I think we have to be prepared to take aggressive military action against the Iranians to stop them from killing Americans in Iraq.”
— Sen. Joseph Lieberman (I-CT), 6/10/07

VERSUS

“So, I know Joe feels strongly about that part of the world. I do too. But the invasion of [Iran] is only going to destabilize that part of the world more.”
— Senate Majority Leader Harry Reid (D-NV), 6/11/07

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