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Crossing the Rubicon, Revisited

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In July 2003, I wrote an article entitled “Crossing the Rubicon,” which addressed what the federal government was doing to a man named Ali Saleh Kahlah al-Marri, a citizen of Qatar who was residing in the United States. Two years later, in March 2005, I published a follow-up article on the al-Marri case: “Ali Saleh Kahlah al-Marri: Charge Him or Release Him.”

The al-Marri case is significant for two reasons. One, it involves the unilateral assumption by the president and the military of one of the most ominous political powers ever exercised — the power to arrest and indefinitely incarcerate without trial any person on suspicion of being a terrorist. Two, such power now extends not only to foreigners but also to Americans. That’s what the Jose Padilla case was all about, which my articles also addressed.

Five years later, al-Marri is petitioning the U.S. Supreme Court to hear his case. It is in the interests of every American that the Court not only hear the case but also rule in favor of al-Marri. Failure to do so will result in presidential and military power that would be the envy of the most powerful dictatorships in history — the direct power to round up citizens and incarcerate them for as long as the government wants, without the benefit of a trial.

Al-Marri’s case began with a federal indictment, which has been the long-established method of handling terrorism and other criminal offenses. On the eve of trial, the government asked the judge to dismiss the charges on the ground that the government was now treating al-Marri as an “enemy combatant” in the war on terrorism. The judge granted the motion and al-Marri was whisked away to a military dungeon in South Carolina, the same facility in which Padilla was incarcerated and tortured. That’s where al-Marri has sat for the past five years.

The government initially took the position that its designation of al-Marri and Padilla as enemy combatants could not be reviewed by the federal courts. The courts rejected that notion, holding that al-Marri and Padilla could not be denied the right of habeas corpus, the centuries-old remedy enabling prisoners to challenge their detention.

However, even though the two men were entitled to habeas corpus, the Fourth Circuit Court of Appeals, arguably the most conservative federal appellate court in the country, upheld the concept of “enemy combatant” in the Padilla case. That meant that as long as the government provided some evidence to sustain its finding of “enemy combatant,” the president and the Pentagon now wielded the omnipotent power to arrest and incarcerate any American.

Once the government secured its favorable appellate court ruling, the government swiftly switched Padilla from the status of an “enemy combatant” to criminal court defendant, securing a federal grand jury indictment against him. The reason the government did that was to ensure that the U.S. Supreme Court would not have the opportunity to overturn the Fourth Circuit’s ruling. Since Padilla’s appellate court case was now moot, given that he was no longer an “enemy combatant,” the Supreme Court declined to hear his case. That left the Fourth Circuit’s ruling intact, exactly what the government wanted. In the “right” emergency, the military could begin rounding up people as “enemy combatants” and cite the Fourth Circuit’s decision in support of the round-ups.

When al-Marri’s case reached the Fourth Circuit, the court once again sustained the “enemy combatant” power. It is that decision that al-Marri is now appealing to the U.S. Supreme Court. While the government might try the same legal trickery it employed in the Padilla case, it might find it a bit more difficult to simply convert al-Marri from an “enemy combatant” to a federal criminal defendant. The reason? Recall that al-Marri began his long journey as a criminal defendant. When the federal judge granted the government’s motion to dismiss those charges, he did so “with prejudice,” which means that those particular charges are barred from ever being brought against al-Marri again. (While an article in Sunday’s Washington Post cited legal experts as saying that the government could transfer al-Marri back to federal court jurisdiction, the article failed to address the problem of the “with prejudice” dismissal of the original criminal charges against al-Marri.)

Here at The Future of Freedom Foundation, we have long argued against the assumption and exercise of the “enemy combatant” power, even with the right of habeas corpus. We have pointed out that those who were arguing that President Bush could be trusted with such power were misguided and short-sighted. We have said that such dictatorial power is irreconcilable with the principles of a free society. We have emphasized that the issue wasn’t whether Bush should be trusted with such power but rather whether one’s worst enemy should be trusted with such power.

But conservatives never thought the day would arrive when they would lose power to a Democratic president. Bush would be in power for 8 years, followed by a succession of Republican presidents, they felt, especially since Americans were unlikely to change parties in the midst of perpetual “war.”

Then, conservatives’ worst fear materialized — the election of a Democrat and, even worse from their perspective, one, they said, whose middle name was Hussein, whose father was a Muslim, who had ties to terrorists, and who associated with an extremist Christian preacher. He’s the man who now wields the omnipotent powers that, thanks to conservatives, were traded to the president and the military for the aura of “safety” from “the terrorists.”

Will Obama reverse the Bush administration’s position on the “enemy combatant” power? Will he ask the Supreme Court to hear the al-Marri case and rule in al-Marri’s favor ? Don’t count on it. As Stephen A. Saltzburg, a George Washington University law professor, put it, Obama’s advisers may persuade him “that we have to worry about another attack, and in case of an attack we need this power.”

Will conservatives reverse their support of the “enemy combatant” power now that Obama will be wielding it? For that matter, will liberals who previously opposed such power reverse their position now that their man is wielding the power? One thing is certain: libertarians will remain consistent in their opposition against dictatorial power regardless of which political party is in power.

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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.