The Bush administration has been fighting for the power to lock people up indefinitely simply on the nod of the president. The assurance that harsh treatment is reserved only for “terrorists” is meaningless when the process for determining who is a terrorist depends on the sole discretion of the executive. Strong constitutional procedures must be enforced through all three branches of government or basic human rights can not prevail.
Unfortunately, basic human rights deniers scored a disturbing victory on July 18, when a federal appeals court ruled that Ali al-Marri would likely continue his seven and a half year wait without ever having had the chance to defend himself. Now that the designation “enemy combatant,” applies to someone held inside the United States who was denied basic human rights, and that treatment is now unchallenged by US courts, the chilling implication is that the ruling may not only apply to foreign nationals, but to US citizens as well.
Judge Diana Gribbon Motz wrote, “Our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone in this country — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world.”
Ali Saleh Kahlah al-Marri, a citizen of Qatar was legally residing in the United States as a student at Bradley University. He was initially arrested in December 2001 in his home in Peoria, Illinois for allegedly opening bank accounts with inadequate or forged identity documents. A year and a half following his arrest, yet just one month before his scheduled hearing, all charges were dropped. But before al-Marri was set free -- in fact later that same day -- President Bush classified al-Marri as an unlawful enemy combatant.
That was June 23, 2003. He was then transferred under the exclusive control of the United States military to the Naval Consolidated Brig in Charleston, South Carolina for detention and questioning. Thus, right before his trial -- based on the unilateral order of the President -- Bush removed al-Marri from the jurisdiction of a court that may honor the US Constitution -- and placed him under the jurisdiction of the 4th Circuit Court of Appeals which just so happens to be friendly to the executive branch.
Thus, on US mainland soil, al-Marri was kept in solitary confinement, denied all contact with the outside world, denied council, not charged with any crime, and given no opportunity to prove his innocence.
Congress endorsed this action by passing the Military Commissions Act of 2006 which among many other things, gave the power over an unlawful enemy combatant's life or death to “no fewer than three officers.”
One month after the legislation passed, the US Department of Justice asserted that al-Marri should be tried in a military tribunal as an enemy combatant rather than in a civilian court stating, “The Military Commissions Act of 2006, which took effect on October 17, 2006, removes federal court jurisdiction over pending and future habeas corpus actions ...[that are] determined by the United States to be enemy combatants, such as al- Marri...”
“All laws which are repugnant to the Constitution are null and void”
Marbury vs. Madison
Unfortunately, the United States Central District Court of Illinois “regretfully” agreed with the Justice Department and denied their court's jurisdiction over al-Marri, though he was arrested while in that district and living with his wife and five children.
“An unconstitutional act is not law...it is...inoperative as though it had never been passed.”
Norton vs. Shelby County
So while al-Marri languished in a North Carolina brig out of the US Central District Court of Illinois' jurisdiction, United States Court of Appeals (also in Illinois) ruled it did have the authority to remove President Bush as a defendant in al-Marri's case. The irony is that the court essentially gave the Commander-in-Chief immunity from any complaints of al-Marri's treatment which Bush ultimately signed and authorized. The Court then defended its decision with the most outrageous statement, “Suits contesting actions of the executive branch should be brought against the President's subordinates.”
The First Amendment to the Constitution specifically prohibits Congress from abridging "the right of the people ... to petition the Government for redress of grievances." Yet Congress passed the law which enabled the executive to deny al-Marri the basic Writ of Habeas Corpus among other gross human right abuses and then the judicial branch not only abrogated their authority to ensure basic human rights to al-Marri, but forgave Bush's involvement in al-Marri's abuse.
As the branches of our own government unite to choke our Constitution's ability to provide our basic human rights, we the people continue to deny that the war on our rights is raging.If a president ever wants to round up Americans on vague charges and detain them indefinitely, the al-Marri ruling gives Bush a "two thumbs up, way up!" signal with absolutely no accountability. The rest of us would be wise to hear this as the very loud tocsin of human rights that it is.
“...The CIA used an alternative set of procedures [which] were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. I cannot describe the specific methods used...But I can say ...they were safe.
President George W. Bush, September 6, 2006