If Barack Obama’s handling of the Ali al-Marri case was supposed to show his credentials as a major change-agent as president, he has flunked the test. Except for some procedural differences, his handling of the al-Marri case is really no different, in principle, than how Bush handled the Jose Padilla case.
First of all, recall the power that Bush claimed after the 9/11 attacks: the power to seize anyone on American soil, either American or foreigner, and treat him as an “enemy combatant” in the “war on terrorism.” That meant permanent incarceration in a military facility, torture and sex abuse, sensory deprivation, and isolation. No trial by jury. No due process of law.
Such power was assumed without even the semblance of a constitutional amendment. How did Bush pull it off? Simply by declaring war on the federal crime of terrorism. With that mere declaration, Bush claimed that he and the Pentagon now wielded the power to treat every suspected terrorist on American soil as an enemy combatant or as a criminal defendant, at their option.
The Pentagon imprisoned Padilla in a military dungeon in South Carolina. Why South Carolina? Most likely because that state is located within the jurisdiction of the Fourth Circuit Court of Appeals, which is reputed to be the most conservative federal appellate circuit in the country. In legal circles, it’s called “forum-shopping” — seeking out the court where you stand the best chance of securing a favorable ruling. When Padilla’s habeas corpus petition was ultimately considered by the Fourth Circuit, no one was surprised when that conservative court upheld the enemy-combatant doctrine.
Many people, however, had high hopes that the Supreme Court would overrule the Fourth Circuit and firmly and definitively establish that in the United States such dictatorial power is not permitted under our constitutional form of government.
Before the Supreme Court could rule on the case, however, Bush’s Justice Department engaged in some clever legal maneuvering. After claiming for years that Padilla was a dangerous enemy combatant, not a criminal defendant, Bush’s people shifted direction and converted Padilla to criminal-defendant status. Why did they do that? Because they knew, even if many Americans didn’t, that the issue was never about Padilla. It was about the American people. Bush and his people wanted the power to do to the American people what they did to Padilla. And they were willing to risk an acquittal of Padilla in federal district court to achieve that.
You see, as soon as they converted Padilla to criminal-defendant status, they motioned the Supreme Court to dismiss Padilla’s appeal, on the ground that the appeal was now moot, given that Padilla was no longer an enemy combatant. That clever piece of legal maneuvering, thus, left the Fourth Circuit’s decision intact. Bush and his people had what they wanted: a federal appellate court decision upholding the omnipotent power of the president and his military to seize anyone arrested on American soil as a suspected terrorist and treat him as an enemy combatant in the “war on terrorism.” It was a revolutionary transformation in the relationship between power and liberty, between the military and the civilian. It effectively constituted a nullification of the Bill of Rights in cases involving the federal crime of terrorism.
The government, however, still had to deal with Ali al-Marri. Although he was a foreigner, the issue in his case was the same as that in Padilla: Does the U.S. government now really have the power to seize anyone it wants here in the United States, accuse him of terrorism, and then subject him to enemy combatant treatment?
Well, guess where they incarcerated al-Marri after they converted him from criminal defendant to enemy combatant. You got it — South Carolina, which falls within the jurisdiction of that conservative Fourth Circuit Court of Appeals. When al-Marri’s case reached the full panel of the Fourth Circuit, no one was surprised when it ruled the same way it had in Padilla. It again upheld the enemy-combatant doctrine.
By the time Barack Obama, who portrayed himself as an agent of change during his campaign, became president, the al-Marri case was reaching the U.S. Supreme Court. Obama and his Justice Department decided to do exactly the same thing that the Bush people had done — convert al-Marri from enemy-combatant status to criminal-defendant status. Following Bush, they also motioned for the Supreme Court to dismiss al-Marri’s appeal.
Of course, Obama and his people were trying to leave the impression that their motive was different from that of Bush. They were trying to lead people into believing that their action was motivated by a good-faith belief that Bush had gone astray in applying the enemy-combatant doctrine to Americans and others accused of terrorism and arrested on American soil. They were trying to convey the impression that they felt that accused terrorists belonged in American courts, not as enemy warriors in U.S. military prison camps.
To buttress those impressions, they even went so far as to ask the Supreme Court to vacate the Fourth Circuit’s decision in al-Marri, a request that the Supreme Court granted. That meant that the Fourth Circuit’s decision in al-Marri upholding the enemy-combatant doctrine was now a nullity, having no force or effect.
So, all is okay, right? Barack Obama, change-agent par excellent, has restored the principles of due process, trial by jury, and the Bill of Rights to our land, at least with respect to the federal crime of terrorism, right?
Actually, no. In fact, nothing has changed at all, at least not insofar as the American people and a free society are concerned. Sure, al-Marri, like Padilla, is getting his day in court. But Bush and Obama and the Pentagon got what they wanted — the power to do to Americans what they have done to Padilla and al-Marri.
You see, what the Obama people understand, even if many Americans do not, is that even though the al-Marri decision got vacated, the Padilla decision upholding the enemy-combatant doctrine remains in full force and effect.
Did change-agent Obama denounce and renounce the enemy-combatant doctrine and the Fourth Circuit’s decision in Padilla? On the contrary, his Justice Department, like that of his predecessor Bush, expressly reserved the power. Here’s what the New York Times reported:
“While the government did not defend its power to detain Mr. Marri at present, it left open the possibility that he or others might be subject to military detention as enemy combatants in the future. ‘Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure,’ the Justice Department told the court in a brief filed Wednesday.”
Given that position, the Supreme Court obviously had no business granting the government’s motion to dismiss on the grounds of mootness, especially when Obama and his people are reserving the power to reconvert al-Marri to enemy-combatant status immediately after the Supreme Court’s order of dismissal becomes final or even if he is acquitted by a jury of his peers in federal district court. In such case, because of the Supreme Court’s cowardly refusal to hear al-Marri’s appeal, al-Marri would have to start all over again by filing a new petition for habeas corpus and wait about 5 years before reaching the Supreme Court, when the government could do the same thing again.
Throughout his campaign, Barack Obama repeatedly sold himself as America’s premier agent of change. Given his embrace of the most dictatorial power of all — the power to seize people and incarcerate and punish them without trial or due process — it’s not difficult to see, even at this early stage of his presidency, that Obama’s campaign pledge was empty and hollow.
