Friday, December 01, 2006

Yeah, but how will it play in Peoria?

An abuse of power update:

Here's the Militarism Commissioned Act at work. A non-citizen named Ali Saleh Kahlah al-Marri gets picked up in Peoria, Illinois. He's charged with credit card fraud and making false statements to the FBI. One month before his trial, the trial is suddenly postponed. Why? Since al-Marri refused to cooperate with the FBI, the administration designated him as an "enemy combatant." In other words, the administration forced him to choose between cooperating or losing his due process rights, not to mention the presumption of innocence. His new trial date is right around never.

Former AG Ashcroft talks about the case in his new book:
Ashcroft observes that under the laws of war, an enemy combatant can even be killed on the spot. The government held its fire in Peoria. But it is intent on holding al-Marri "without charge or trial until the end of the war," as Ashcroft puts it. And the government thinks it has a new tool for doing so: the Military Commissions Act of 2006.

This is the law that Congress rushed to pass in the fall to strip the Guantanamo detainees of their rights to challenge their detentions by bringing habeas corpus petitions in federal court. The MCA could have been limited to people picked up outside the United States. But its language is broader: It bars habeas claims by any noncitizen determined by the government to be an enemy combatant (or "awaiting such determination"). This, the government argues, means that it could pick up al-Marri in Peoria one day and the next day stick him in a military brig indefinitely, with no chance of redress in court.

And the end of the so-called war, of course, is sometime between now and never.

So, what's the problem? Here's the problem:
The government's handling of al-Marri is an utter departure from historical practice. Noncitizens in the United States have constitutional rights, including the right to due process if they face criminal charges. When they're convicted, they routinely file habeas petitions, as they have for centuries. The Supreme Court explained all of this in a 2001 case, INS v. St. Cyr, in which the government wanted to deport an immigrant convicted of a crime without any judicial review. The court forbade that, saying that the constitution protects the rights of "all persons in the United States."

Then again, what am I thinking? Of course you can trust the government. Just ask Brandon Mayfield. You may remember Mayfield. He is the Oregon attorney who was held for two weeks in connection with the Madrid bombing only for the government to later realize, uh, whoops, didn't quite get that one right. Abusive provisions of the USA PATRIOT Act were used to investigate Mayfield, including the expansion of the sneak-and-peek warrants, which allowed agents to bust into Mayfield's home, take things, and never tell him they were there.

This week Mayfield, his wife, and his kids got what they deserve: A $2 million apology from the government.
"You almost never see something like this," said Peter Neufeld, co-director of the Innocence Project, a legal clinic in New York City. "It's extraordinary, but the harm caused him was extraordinary. What I really think it speaks to is just how clearly the U.S. government crossed the line when it went after Mayfield."

And the best part?
The settlement includes an unusual condition that frees the government from future liability except in one important area: Mr. Mayfield is allowed to continue a lawsuit seeking to overturn parts of the Patriot Act as a violation of the Fourth Amendment protection against unreasonable search and seizure.

That's right. Go get 'em, bro.

Finally this week, the Justice Department announced that it will do some investigating into the NSA's warrantless surveillance program. The Albany Times Union is wary:
According to a Washington Post report, Mr. Fine intends to examine only how the Justice Department has used information obtained by the National Security Agency under the surveillance program, and whether department lawyers complied with its "legal requirements." But the larger issue the one that matters most is whether the program is legal at all, and Mr. Fine's investigation won't even touch on that.
If he issues a report claiming the material obtained under the program hasn't been abused, and that there are safe guards in place to protect the privacy of Americans, the White House will be able to argue that the Democrats' investigations aren't necessary.

But they are. This controversy involves nothing less than the basic constitutional liberties. No hastily arranged Justice Depart ment probe should whitewash that fact away.

Andy in H-burg

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