Garbage In, Garbage Out

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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The latest declaration from our federal courts about the rights of terror detainees will be neither the last nor the most important reminder that the Bush administration's willy-nilly approach to terrorism law has generated a doctrinal and practical mess of things over the past 5 1/2 years.

The legal chaos we now have over the rights of so-called "enemy combatants" — here at home, abroad at Guantanamo Bay, and anywhere and everywhere else they may be secreted away — is sadly and simply what you get when a government tries over many years to treat similarly situated men differently (or to treat differently situated men equally) under the color of law.

Last week it was two military judges throwing out Gitmo cases because of legitimate and eminently avoidable definitional discrepancies. On Monday, it was two federal appeals court judges declaring that resident aliens — terror suspects — still may have some right to defend themselves in our civilian courts. Next week or next month it will be another series of judges scratching their heads and rejecting a Justice Department terror-law argument, or a half-baked legislative initiative, that just doesn't add up.

Because of fortune and fate and docket sequences, Ali Saleh Kahlah al-Marri is not likely to join Yaser Esam Hamdi, Jose Padilla and Salim Ahmed Hamdan among the list of infamous "enemy combatants" who have and who (in Padilla's case) continue to have an influence on post-9/11 American law. Even if the Justice Department prevails in bringing the case before the full panel of judges of the 4th U.S. Circuit Court of Appeals, and even if the whole shebang ultimately ends up at the U.S. Supreme Court, the al-Marri case has so many legal "outs" along the way that it's hard to fathom it will ever force the justices to again cogitate over the meaning of the president's war powers.

Here are the facts behind the al-Marri ruling: After the Twin Towers fell, the guy was arrested as a material witness here in the States, where he was residing lawfully as a foreign student. He was charged with various terror-related crimes. Two years later, in June 2003, as the criminal trial is proceeding, the Bush administration pulled the rug out from under the federal prosecution and unilaterally put al-Marri on ice as a designated "enemy combatant." Why? Because the president said so, which was enough to keep al-Marri from communicating with his wife or anyone else for 16 months after he was locked in a military brig.

Finally, in September 2004, the federal government offered up a more thorough rationale for al-Marri's confinement in the form of an affidavit by a government bureaucrat familiar with al-Marri's case. The allegations contained in the affidavit are serious and quite familiar — in fact they read almost exactly like the allegations contained in the indictments of another fellow arrested here in the States and tagged as al Qaeda; a fellow by the name of Zacarias Moussauoi. Unlike Moussaoui, however, al-Marri denies he is al Qaeda. Also unlike Moussaoui, the feds are reluctant for some reason to test their claims against al-Marri in a court of law.

First, the feds argued that al-Marri was not entitled to any sort of help from the federal courts because he was properly classified as an "enemy combatant" by the president in the lawful use of his broad war powers as chief executive. Then, when the Supreme Court seemed to foreclose parts of that argument in its Hamdi, Padilla and Hamdan rulings, the feds trotted out the Military Commissions Act of 2006 as proof that Congress itself intended to block guys like al-Marri (as well as the Gitmo detainees, of course) from having access to federal courts before they were tried and condemned. On Monday, a divided 4th Circuit panel declined to buy into this argument.

Congress never intended the Military Commissions Act to preclude guys like al-Marri from reaching out to the federal courts when detained and classified as "enemy combatants" by the executive branch, two of three judges ruled. And even if it had, such an effort would have been unconstitutional. Moreover, the majority declared, President Bush's designation alone, without proof, was insufficient to justify the "combatant" tag upon al-Marri in the first place. The feds themselves say that al-Marri is more like a terrorist than a soldier, the judges noted, so they shouldn't complain when he asks to be treated like one — at least for the purpose of getting before a judge.

The ruling is 86 pages long and probably generates 86 separate ways for lawyers and politicians to "fix" it should they choose to do so. The feds can charge al-Marri and head us all out for another Padilla-like ride through the intersection of Intelligence Gathering and Law Enforcement. Or the politicians can change the Commissions Act to make it consistent with the Constitution. Or the lawyers could tweak the military rules and try to get al-Marri into no-judge-land that way. Theoretically, even, the president can "pull a Hamdi" (as we terror law geeks like to say) and simply let the guy go free. (Hamdi now apparently is living la vida loca ("the crazy life") following his famous years of confinement as the prototype "enemy combatant.")

So these nincompoops — and by nincompoops I mean all of the lawyers and judges and politicians and military officials who have generated this layered legal mess — can continue to fight it out, one case at a time, based upon the sorts of Band-Aid solutions we got from the folks who gave us the Military Commissions Act. If that happens, we'll all probably be talking together in a year or so about how the hundreds of men at Gitmo are still there, still awaiting their military trials.

Or these leading lights can concentrate their pretty little minds upon solving once and for all the problem of the detainees — by creating a comprehensive series of rules that are fair and uniform and that are not cobbled together in back-room deals on Capitol Hill. We need a scheme here that rationally differentiates (or doesn't) between the Moussaouis and the al-Marris and the Padillas and the Hamdis and the Hamdens and the Mohammeds of the world. That would be the right thing to do. But you and al-Marri both shouldn't hold your breath waiting for it to happen. Neither will our federal judges.


By Andrew Cohen

[sclaires]

It appears that whenever GW Bush wants to have people think he is doing the right thing, it comes down to him saying one thing and doing something entirely different. I am surprised that he hasn't named his dog as an enemy combatant simply because he might have a microchip to help locate him if he becomes lost (which I doubt but you never know). He could claim that the vet is in cohouts with this terrorist cell or that terrorist cell or another terrorist cell because of the microchip.

No, GW Bush doesn't know his head from a hole in the ground and will claim anything as long as it benefits him in one way or the other (money wise?). And, Chaney is doing the same thing and especially when it comes to making money. Both of them need to be impeached but the problem most likely is that they have something on the members of Congress which keeps them from starting the impeachment proceedings.

We need to get out of this war in Iraq and Afghanistan and let the people fight the way they have been doing for thousands of years. The USA is NOT the world's policeman and should stay out of the affairs of other countries.

[jeanneke-2009]

mcdazz--- It's a head-scratcher isn't it.
This administration has done more than enough to be impeached, I just don't understand why the legislators are so willing to put their political careers on the line for these criminals.

[infidel_us]

HA! I saw the headline and thought it was a story about the DNC or ALBore's global warming rigmarole.

Imagine my disappointment when I saw it was more libs whining about the lack of terrorists rights.

[knyghtwolf]

The statement with your logic veteran71 is true and that you have nailed it completely as to what the bush administration's REAL agenda is and NO ONE will do a thing because most people are naive enough to believe that it could NEVER, EVER HAPPEN HERE. And that's is exactly what little george is banking on. When we see groups of Americans on the streets getting executed as summarily "terrorist suspects", perhaps those sitting around about a block away watching it on the CBS "breaking news" while it happens will keep thinking that it would never happen to them right up to the moment when that kicked down door and bullets ripping through them will finally wake them up & show them what kind of administration they supported and died for.

brianbwb wrote:

"If Bin Laden really wanted to hurt Bush, all he'd need do would be to announce that he was working for Bush."

I'm starting to wonder if GW Bush is working for Bin Laden.

Think about it.

We know Bin Ladens family has business dealings with the Bush family Klan, and we're all still scratching our heads as to why GW Bush didn't go all out to get Bin Laden when we nearly had him.

And then, GW Bush turns around and invades Iraq - a country completely unrelated to terrorism (at least not to the American people).

And to top it off - GW Bush has told America and the World that he doesn't care where Bin Laden is - AND he's not a priority.

Nearly 6 years after 9/11 and Bin Laden is still roaming free, GW Bush has successfully managed to destroy freedom around the world, and the SOB has made a profit for his family, his friends and himself.

And all while Americans die in a country completely unrelated to 9/11.

nestorius wrote:

"should have put a bullet in his ear.. end of terrorist end of problem..."

The same could apply to you - then we'd have one less idiot.

[brianbwb-2009]

Something to ponder;

If Bin Laden really wanted to hurt Bush, all he'd need do would be to announce that he was working for Bush. Even if it weren't true the disarray caused while investigating such a charge would serve him very well, but until now, he only surfaces, with uncanny timing, every time Bush wants to scare people into going along with his illegal agenda.

And if it were true, he could topple George overnight...

[brianbwb-2009]

to donnie900,

You ask, "What the heck ya fighting for?"

Nothing. This is the point, after you discount all the Bush lies as to why we invaded these countries, you are left with no reason, but people like yourself, rather than admit supporting the real idiot, begin to make up your own.

9/11? who was the real mastermind? Why did Bush pull the funding for the investigation just when they were beginning to follow the money? Al Qaeda? Created, armed and trained by the CIA for proxy against Russia during Afghanistan's breakaway. Bin Laden? Son of the Bin Laden family, one of the wealthiest families in Saudi Arabia, and partners with the Bush family in several ventures under the Carlysle group.

That is what US soldiers are dying for son, no reason.

[nearl4511]

Ignorance. Ignorance. Ignorance.

Not the article. It is on the money.

Ignorant are the bloodthirsty Bushies that cannot see that in order to try these terrorism suspects or "combatants", a cohesive process that is applied evenly on basis of some agreed upon rules.

This stupid process keeps being reinvented evey year.

AND no putting a bullet in the ear of any and every suspect does not even simulate a system of justice. It simulates fascism.

[melcarnahan]

Bush's incompetence knows no bounds. His contempt for the law shows what kind of a criminal Bush really is.