In the annals of the law, the miscreants Miranda and Escobedo, whose cases asserted commonly abused constitutional rights, may always be more famous than Hamdi and al-Marri, who could for all we know be equally bad eggs or worse. But Hamdi and al-Marri may have saved the country from far worse consequences.
Miranda and Escobedo asserted rights that had not been enforced — legal counsel and protection from self-incrimination — but Hamdi and al-Marri reinforced rights that people for 200 years never dreamed would be breached.
That was before George W. Bush and Dick Cheney, who insisted that the president has the unfettered power to have the military grab anyone he wants, including citizens and others living legally in America, on the flimsiest or even nonexistent evidence and hold them without charges, trial or basic protections for the rest of their lives or for as long as he says the country is at war with someone.
But the Fourth U.S. Circuit Court of Appeals at Richmond said Monday in the case of Ali al-Marri that Bush could not do it under the Constitution and that if the courts sanctioned it the foundations of the republic would be shaken.
The judges said al-Marri might be a dastardly criminal who should be prosecuted and imprisoned but that the government had to honor the constitutional way of doing it. He had to be tried in U.S. courts.
Al-Marri was a Qatar citizen who was in the United States with his wife and children going to graduate school at Peoria when he was picked up as a material witness in the 9/11 investigation and charged with having counterfeit credit-card numbers and making false statements. When he sought to dismiss evidence against him on the ground that it was obtained by torturing an informant President Bush signed an order four years ago designating al-Marri an enemy combatant and moved him to a Navy brig in South Carolina, where he has been held since without charges. For 16 months he was allowed no contact with his wife or children or a lawyer.
The Virginia court will be criticized for overstating the danger of asserting military authority over American citizens and lawful residents or the president’s claim of “inherent power” to bypass all constitutional protections in wartime, but its words are as convincing as they are chilling:
“For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws ‘to go unexecuted, and the government itself to go to pieces.’ We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”
The al-Marri decision might not stand at the Supreme Court, thanks to Bush. He has appointed two loyal Bushies to replace William Rehnquist and Sandra Day O’Connor, the conservatives who had ruled in the Hamdi case in 2004 that the executive branch did not have the power to hold an American citizen indefinitely without due process and that he had to be given a judicial review. Instead of trying Hamdi, whom it alleged was a terrorist, the government sent him to Saudi Arabia.
The decision does not apply directly to the hundreds of people swept up in Afghanistan by bounty hunters and tribesmen and U.S. troops and lodged at the prison at Guantanamo, which was set up to avoid the protections of U.S. law and the Geneva Conventions. But the principles may apply to the large number who were not captured on battlefields and were not enemy fighters, many of whom the government now acknowledges were more or less innocently caught in the net but whom it still holds. The Senate Judiciary Committee Monday produced a bill to restore habeas corpus and the right to trial to Guantanamo prisoners, which Congress took away last year at Bush’s request.
Finally speaking out after years of silence, Colin Powell said Sunday he would close the Guantanamo prison that afternoon and try them all under U.S. or military law as the Bill of Rights requires because the depredations there had soiled the nation’s image as a protector of human rights and formed dangerous precedents for the abuse of American liberties.
But there was one notable defender of all of it: our own Mike Huckabee, who got face time on CNN to praise Guantanamo, where he had once been given a hasty Potemkin viewing by the Bush administration. Contrary to what FBI agents found, Huckabee saw happy prisoners enjoying “every consideration” and conditions far more humane than Arkansas prisons. Like most of the other presidential aspirants of his party, our man thinks the Bill of Rights is only for carefree times.