The Justice Department is at it again, seeking to turn the case of foreign student arrested in the U.S. on terrorism-related charges into another test case of Congress’ power to strip federal courts of the authority to hear habeas challenges.
Mischief such as this will have a whole lot more bearing on the future conduct of the War on Terror — and the future of America and its core values such as habeas corpus — than the news du jour.
Meanwhile, here’s what’s going on with the case of Al-Marri v. Wright in the Fourth Circuit Court:
Lawyers for Ali Saleh Kahlah al-Marri, a citizen of Qatar who was arrested almost five years ago at his home in Peoria, Illinois, while he was a student at Bradley University, have urged the Fourth Circuit Court to deny the president the authority to detain him as an “enemy combatant.” Relying on the Civil War era case of Ex parte Milligan, the lawyers argued that “the Constitution prohibits the military imprisonment of civilians arrested in the U.S. and outside an active battlefield.”
Lyle Denniston notes at SCOTUSBlog that the case:
“[H]as the potential for confining the President’s detention authority to the situation that was explicitly before the Court in 2004 in Hamdi v. Rumsfeld, one of the Court’s first rulings on war-on-terrorism issues. The Court there ruled that the President had the power to detain combatants ‘in the narrow circumstances alleged in this case’ — that is, an overseas capture in a field of combat of forces hostile to the U.S.
“But, the Justice Department . . . argued that the Fourth Circuit no longer has any authority to decide Al-Marri’s case, because it is a habeas challenge and Congress in the new Military Commissions Act of 2006 stripped the federal courts of all authority to rule on detainees’ habeas cases. The case thus should be dismissed, the government argued in the filing.”
Former U.S. Attorney General Janet Reno, a former deputy U.S. solicitor general and six former U.S. attorneys, among others, have joined the Al-Marri case in urging the Fourth Circuit to bar the federal government from detaining without charges any terrorism suspect not captured on a foreign battlfield.
Their amicus brief argues that:
“[T]he existing criminal justice system is more than up to the task of prosecuting and bringing to just those who plan or attempt acts within the United States — without sacrificing any of the rights and protections that have been the hallmarks of the American legal system for more than 200 years.”
WHY ARLEN LEFT THE RESERVATION
Meanwhile, Jeffrey Toobin has an excellent piece at The New Yorker on how Senator Arlen “Mr. Civil Liberties� Specter helped hasten the demise of habeas corpus.
Has there been any so-called moderate Republican who has been a bigger disappointment than Specter during The Decider’s rein of terror?