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Just Say "No" to Indefinite Detention

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February 18, 2009

This week’s New Yorker features a story by the incomparable Jane Mayer about the ACLU’s case on behalf of Ali al-Marri, which will be heard by the Supreme Court in April, barring any Obama administration actions like dropping the “enemy combatant” classification and reclassifying, charging him as a civilian, and renouncing the asserted executive detention power.

Mayer writes of the al-Marri case to frame the larger puzzle the Obama administration now faces: how to handle the detainees left to him by President Bush, and how those actions will (or will not) square with our current president’s declarations against indefinite detention:

The Obama Administration’s strategy in the Marri case will almost certainly establish legal principles that will have ramifications for future cases, as well as for the two hundred and forty or so similarly designated “unlawful enemy combatants” held in the military prison at Guantánamo Bay, Cuba. During the Bush years, the designation encompassed not just members of Al Qaeda and the Taliban but also anyone who associated with them, supported them, or supported organizations associated with them, even if unwittingly. In 2004, a Bush Administration lawyer told a judge that, in theory, an enemy combatant could even be “a little old lady in Switzerland” whose charitable donations had been channelled, without her awareness, to Al Qaeda front groups.

Mayer discusses the specter of the creation of a national security court to deal with the remaining Gitmo detainees and al-Marri. We’re against it, but don’t just take our word for it — Mayer gives voice to some excellent rebuttals to the need for such a court:

James Benjamin, a former federal prosecutor in the Southern District of New York…co-wrote a review of the Marri case, characterizing the switch to military detention as counterproductive. “Definitely, the criminal-justice system can handle someone like Marri,” he told me. “They caught him under the criminal-justice system. And, based on what we know, they were poised to convict him.” What happened to Marri before he was moved “proves the system was up to it.”

Marty Lederman, a former Georgetown Law professor, whom Obama has appointed to be a deputy in the Justice Department’s Office of Legal Counsel, argues that the Bush Administration’s claims to be acting out of necessity were “nonsense.” In an essay published before he joined the Administration, Lederman wrote, “Even if everything the government alleges about al-Marri’s ties to al Qaeda are true,” he was not a danger “because he was already incapacitated—imprisoned—within the criminal-justice system, where his trial was pending.”

Lederman’s piece can be found in its entirety here. You can also read 18 friend-of-the-court briefs filed on behalf of al-Marri that argue in favor of the ACLU’s position here.

When President Obama issued the executive order (PDF) asking the Supreme Court to grant the government a 30-day extension to file its brief in the al-Marri case, we took it as a good sign that the new administration is thoroughly reviewing the previous administration’s claim that a U.S. resident can be detained indefinitely without trial. We hope President Obama disagrees with that assertion, and returns al-Marri’s case back to a federal court, which is where it started, and where it belongs if the government is going to continue to detain him.

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