Remember the habeas-stripping measure recently approved by Congress? The president is already putting it to use.
Immigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts, the Bush administration said Monday, opening a new legal front in the fight over the rights of detainees.
In court documents filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., the Justice Department said a new anti-terrorism law being used to hold detainees in Guantanamo Bay also applies to foreigners captured and held in the United States.
Ali Saleh Kahlah Al-Marri, a citizen of Qatar, was arrested in 2001 while studying in the United States. He has been labeled an “enemy combatant,” a designation that, under a law signed last month, strips foreigners of the right to challenge their detention in federal courts.
Al-Marri, who was a legal immigrant living with his family in Peoria before being detained, is the first detainee to fall under the new federal law. Legal immigrants used to be able to contest their imprisonment in court; the administration now has the power to remove the accused from the criminal justice system and turn them over to the military. And the administration is most certainly exercising that power now.
“It’s pretty stunning that any alien living in the United States can be denied this right,” said Jonathan Hafetz, an attorney for Al-Marri. “It means any non-citizen, and there are millions of them, can be whisked off at night and be put in detention.”
The Bush administration maintains that al-Marri is an al Qaeda sleeper agent, based on evidence that only administration officials have seen. Maybe al-Marri is guilty, maybe he’s not, but we won’t know because the Bush gang won’t give him a chance to defend himself.
Indeed, Al-Marri, who vehemently denied the accusations, was set to go to trial in July 2003 — right up until he was declared an “enemy combatant.” His trial was cancelled, he was removed from the process, and was turned over the military, where he was denied the right to counsel and was held with charges against him.
Glenn Greenwald explained the broader dynamic nicely.
The denial of habeas corpus rights is the most Draconian aspect of the [Military Commissions Act], as it authorizes detention for life with no real review and no meaningful opportunity to prove one’s innocence. Sen. Chris Dodd said prior to the election that he regrets the decision not to filibuster the MCA: “I regret now that I didn’t do it . . . This is a major, major blow to who we are.” And Sen. Pat Leahy, soon-to-be Chairman of the Senate Judiciary Committee, has confirmed that he is “drafting a bill to undo portions of a recently passed law that prevent terrorism detainees from going to federal court to challenge the government’s right to hold them indefinitely.”
That has to happen. At the very least, re-establishing habeas corpus rights for detainees is an absolute imperative. We simply cannot be a country that vests in the President the power to order people imprisoned for life with no real review of the charges against them, particularly when the detainees are not detained on any battlefield, and particularly when they are detained inside the U.S.
There is no greater betrayal of the core principles of American political life than to have the federal government sweep people off the streets, throw them into a black hole with no contact with the outside world and no charges asserted of any kind, and simply keep them there for as long as the President desires — in al-Marri’s case, with respect to detention, now five years and counting.
Stay tuned.