Al Qaeda's American Harbor
A bad decision likely to be overturned.
Thursday, June 14, 2007 12:01 a.m. EDT
On Monday, the Fourth Circuit Court of Appeals ruled that al Qaeda agent Ali Saleh Kahlah al-Marri can't be detained as an enemy combatant. The press corps is reporting--no, shouting, cheering, doing somersaults--that this is further proof that Bush Administration detainee policies are doomed to legal oblivion.
Well, here's a wager: This decision is the outlier and will be overturned on appeal, while most of the Administration's legal antiterror architecture will survive past January 20, 2009. Any takers?
There's no doubt that the 2-1 Fourth Circuit ruling in Al-Marri v. Wright is remarkable and dangerous in its sweeping judicial claims. Judges Diane Motz and Roger Gregory, both Bill Clinton nominees, ruled that a person like al-Marri does not qualify as an enemy combatant, because the U.S. cannot be "at war" with a private group like al Qaeda.
For the "enemy combatant" moniker to apply, the court said, a terrorist must have set foot in the soil "alongside" the forces of an enemy state--i.e., Iraq or Afghanistan. This is odd in itself, since by definition al Qaeda is a transnational organization. In some respects this makes it more of a security threat because there is no government the U.S. can hold responsible for its actions.
By such fancy footwork, the judges also get around the fact that their decision contradicts existing precedent in both their own circuit and the Supreme Court. In Hamdi v. Rumsfeld, the Supreme Court ruled that an American captured on a battlefield in Afghanistan could be designated an enemy combatant. Ditto Fourth Circuit precedent, which strengthened Hamdi with its ruling in the case of Jose Padilla, the U.S. citizen who was arrested at O'Hare airport with plans to detonate a dirty bomb.
Judges Motz and Gregory duck these precedents by ruling that al-Marri belongs in a different category, having never taken up arms on a foreign battlefield. He was merely trying to kill us here at home. Al-Marri came to the U.S. on a student visa as part of an al Qaeda "sleeper cell," looking for new opportunities to disrupt the U.S. financial system after September 11. Working for 9/11 honcho Khalid Sheikh Mohammed, he posed as a student at Bradley University while plotting. He was arrested for credit card fraud, and as his case worked through the court system, evidence of his al Qaeda affiliation built and he was transferred to a military brig in South Carolina.
There are few defined battlefields in the war on terror. So for new homegrown terrorist recruits, the Fourth Circuit decision is great news: If you join al Qaeda today, and get your training outside a wartime-environment, any violent acts you commit against the U.S. cannot qualify you as an enemy combatant or subject you to the system of military interrogation. You will instead be prosecuted in the U.S. criminal justice system, which would make any al Qaeda operative's day.
A case against a terrorist suspect would require a level of transparency that could compromise intelligence gathering and possibly the nation's security. Through the discovery process, the terrorist "defendant" would be privy to the sources that compromised him--sources that would thereby be made obsolete. And don't forget the domestic criminal rules of evidence. You think a lot of cases are dismissed on "technicalities" now?
This is the reason the Bush Administration decided on a separate legal process for handling terror cases--a process that has been substantially upheld by the courts. While the Supreme Court has put some limits on executive decision-making, it has upheld the President's right to designate "enemy combatants" and upheld the legality of Guantanamo and of military commissions. The next President may decide to close Guantanamo as a global PR gesture, but we doubt he or she will turn al Qaeda over to the civilian courts. And don't expect Hillary Clinton to make it a major campaign plank.
This assumes, to be sure, that this decision is overturned on appeal, either by the entire Fourth Circuit or by the Supreme Court. By the way, under the Military Commissions Act, cases of this nature are supposed to go to the D.C. Circuit Court of Appeals, and then on appeal to the Supreme Court. The Fourth Circuit panel's justification for taking the case was tortured enough to underscore that the judges knew better. Let's hope they're overturned and that their ruling becomes an unfortunate historical footnote.
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