U.S. Constitutional Law resurfaces on the American agenda

The current U.S. administration received another legal blow recently, this time by a three-judge panel  of the U.S. Court of Appeals for the Fourth Circuit, in the case of Ali al-Marri, a Qatar citizen legally in the United States, who the U.S. president “decided†was an “enemy combatant.†Bush ordered him transferred for incarceration in a Navy brig in South Carolina, where he has been held for the last four years, without charges, without family contact, without legal counsel, and without access to witnesses or evidence, for or against him.

In a stinging rebuke to the U.S. president’s self-declared “unitary†executive powers, the court ruled that indefinite military detention of a person lawfully in the country violates the U.S. Constitution. Said the court: “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them “enemy combatants,’ would have disastrous consequences for the Constitution — and the country.â€

The court ordered the issuance of a writ of habeas corpus to release the appellant from military custody. What now are the options? The government could transfer al-Marri to civilian authorities to face criminal charges (if any), initiate deportation proceedings against him, hold him as a material witness in connection with a grand jury proceeding, or detain him under the so-called Patriot Act (itself containing questionably unconstitutional provisions).

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The White House, of course, will do none of the above, if they can get away with it. They have ordered the Justice Department, under a pliant, vulnerable attorney general, to appeal the case to the full Fourth Circuit Court, and then to the U.S. Supreme Court, as part of the president’s avowed commitment to protect Americans from alleged “sleeper†suspects and “unlawful enemy combatants†like this (although al-Mari has not in fact been accused of engaging in combat or with any enemy forces). Four years of rough imprisonment have produced no evidence against him or anyone else.

A disturbing feature of this case and a number of similar ones is that the courts tend to be divided down ideological political lines. The sole dissent in al-Marri was a Bush appointee. This is a reminder how significant is the judicial appointment and confirmation process, and how stacking the deck with political ideologues can warp the outcomes of “justice†in this country. This is exactly what the administration is counting on in appealing this case further.

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OK, let’s clear the decks. Let’s get back to basics. What does the U.S. Constitution actually say about situations like this? The Constitution asserts: “No person ... shall be deprived of ... liberty ... without due process of law.†No person presumably means no person, as Sen. Robert Byrd is forever pointing out. So, what is the “due process†which no person is to be denied?

The Constitution itself defines this as including the right “to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have assistance of counsel for his defense,†as well as “the right to a speedy and public trial, by an impartial jury.â€

The Bush administration operates under the bizarre notion that as long as criminal charges are not actually brought against a prisoner, none of the above constitutional rights and safeguards apply to any person the president “decides†to call an “enemy combatant.†Evidence of such status, that might stand up in court, is evidently irrelevant.

How far does the slippery slope slip? After all, isn’t any opponent of the regime an “enemy of the crown� If you read Franz Kafka’s “Amerika†in your local library, might you be a suspected “enemy� Might most librarians be “enemy combatants�

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Dear reader, do not despair. Help is on the way. For one, the patriotic American Center for Constitutional Rights (see ccr-ny.org) is actively pursuing four main lines of counterattack in order to: (1) restore habeas corpus and shut down Guantanamo, (2) end torture and hold torturers accountable, (3) ban extraordinary rendition, and (4) stop lawless government spying in the United States. You may be pleased to note that the CCR is currently litigating cases against Donald Rumsfeld, Alberto Gonzales, John Ashcroft, George Tenet and several private military firms for their involvement in systematic torture.

Legislative help is on the way — to rewrite the Constitutional interpretation to conform with what the U.S. Constitution actually says. Connecticut is a leader in this effort. Senator Christopher Dodd has introduced a comprehensive bill, “Restoring the Constitution Act of 2007,†backed in the House by U.S. Representative Chris Murphy of our Fifth District. The bill would overturn a number of what are probably unconstitutional provisions of the so-called Patriot Act, the Detainee Treatment Act and the Military Commissions Act.  

However, the proposed legislation is so complex, running to thousands of words in length, that it is unlikely that a harried Congress could pass the full bill this year. Nevertheless, one aspect of the bill is considered so important, namely the restoration of habeas corpus, that it is being tacked onto the current defense appropriation bill and is receiving support from both sides of the aisle. The combined bill risks presidential veto.

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The full Dodd-Murphy bill, if adopted in 2008, will make three things abundantly clear:

 (1) The U.S. president does not have the “unitary†dictatorial powers he claims, or is claimed for him,

(2) the Constitutional ban on “cruel and unusual punishment†means what it says and applies to ALL persons, regardless of nationality or physical location,  and

(3) the time has come to restore control of American government and life to the American people, under the rule of law — that is, the law set forth in the Constitution of the United States of America.

Sharon resident Anthony Piel is a former director and legal counsel of the World Health Organization.