Garbage In, Garbage Out

Andrew Cohen Observes A Lack Of Uniformity In How The Administration Treats Terror Suspects

(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.

[sjc_1]

Just charge them and bring evidence, what is so difficult about that? If you have a case, then make it. Don't just say "we suspect them", show evidence.

Totalitarian governments with dictators just take people and lock them up. We claim to have a higher standard. This administration violates those standards and then claims that the U.S. leads the world. In what way do we lead by being hypocrites, saying one thing and then doing another?

[tburzio]

I think we should allow everyone the equal chance to set off a nuclear weapon in the US, as long as they are careful to stay within the law.

[geshe]

This could be considered a crime on the part of Duhbya. It's basically kidnapping. He was classified as an enemy combatant for the sole purpose of detaining him indefinitely. This detention was illegal, and could be found to have caused harm. The President has committed a crime for which he should be impeached and indicted.

[bombadil4]

The problem could get worse. We already have a Supreme Court that's in Bush's pocket on many issues. Shoud Dubya get a shot at appointing another justice before his term ends, we are in deep doo-doo as far as having anything resembling a democracy in this country. Same thing if we elect another conservative Republican President. There seems to be a general assumption that the next President will be a democrat, but what if our dumbed-down electorate starts considering "who they would rather have a beer with," Hilary or Fred Thompson? It could get scary around here. Already is.

[mcvet]

On the scale of 1 to 10, 10 being the worst, the Republican Party has scored an 11 on their ability to fight and defeat Terror. You do not need anyone to tell you that. But as bad as the party has been Bush is WORSE. How many times do we need to watch these Fascist and folks the vast MAJORITY of the entire WORLD conciders them that, doing NOTHING in the war on Terror EXCEPT cave to the enemy and take away OUR rights. If I were one of the enemy I'd just be overjoyed with Bush and the Republican's. They have the very best of our kids out ont he streets of Bagday EVERYDAY. Now I ask you, combined with the WORLD View of them just how much worse could you do??? Sieg Heil Y'all.

[mcvet]

think we should allow everyone the equal chance to set off a nuclear weapon in the US, as long as they are careful to stay within the law.

Posted by tburzio at 11:34 AM : Jun 12, 2007

I have to ask ALL you Nazi's what good this does?? What we are talking about here is WALKING the walk. It's one thing to PRETEND to give RIGHTS to someone ELSE, it's quite another to do it to your NEIGHBOR and FELLOW CITIZEN!! You people aren't part of ANY solution what so ever... YOU are part of the PROBLEM!! This is a fight against the Muslim KLAN Sparky!! Anyone who knows anything about them KNOW this. Now who would know more about defeating you clowns than a "Liberal"? Sieg Heil Y'all.

[horse3farm]

How many more crimes, and lies, does this president have to commit before he can be impeached??????? He is Hitler in disguise. He is disgusting. And this country filed impeachment against a president who slept with an aid?

Stupid overly moral America....your morality is greatly misplaced.

[notblue]

"The presidents willy-nilly approach to terrorism"???????? Can anyone please explain what the Democrats and leftwingers approach to terrorism is???

[AgentGGG]

The fact is that the administration is ignorant or willfully contemptful of the rule of law, and thereby is ignorant of the fundamental pillar of our successful democracy.

The Bush team is solely interested in political expediency, embodying a take what you can get at the moment attitude, coupled with, extremely short-term non-strategic execution. They justified themselves with fantastical neo-con ideological dreams of how nations really develop and operation.

But by their incompetent and irresponsible leadership, they damage the very democratic institutions that protect us from tyranny, and diminish our personal freedom. The politics of fear against the terrorist threat enable the erosion of legal garantees that have proven themselves over hundreds of years -- habeous corpus, and protection against torture, to name a few.

If you think about the legal philosophy behind their terrorist prosecutions, you notice that it presupposes to know with certainty that the defendant is a terrorist, ergo guilty. Thus the institutions of justice become subordinated to validate the obvious guilt of the defendant, instead of being the public venue where guilt can be legally established. They are putting the cart before the horse, and we are all paying a dear price.

[marcodele]

The Democrats are not in charge of the war on terror.

Junior, the reformed alcoholic coke sniffer is.

[clestes-2009]

Bush has made a mess of everything he has touched. There is NOT ONE single issue he has brought up that has not been a complete failure or a out and out disaster.

Why should "enemy combatents" be any different.

The has been charged, he should have his day in court. Either prove he a terrorist or release him.

What, I ask someone, is the point of locking up a bunch of people (enemy combatents) and deprive them of their rights, so they just stay behind bars at the expense of us tax payers??

It costs tens of thousands of dollars for every single person behind bars. We have no idea what, if anything, these people have done, but we are suppose to support them for how long???? The rest of their lives????? Where is the sense in that????

Only dubya could make a mess out of charging and convicting terror suspects. He is incapable of doing ANYTHING right.

We will be cleaning up after dubya for years to come. Straightening out confused laws, re-establishing ties with allies, trying to bring Iraq to a point where some of the soldiers can come home. I say some, because I doubt that we will withdraw complete, although I think we should.

The Bush presidency has been a disaster.

[soldat44]

"The presidents willy-nilly approach to terrorism"???????? Can anyone please explain what the Democrats and leftwingers approach to terrorism is???
Posted by notblue at 01:12 PM : Jun 12, 2007

They haven't been the ones in charge the last 6 years, have they?

[perception5]

FYI............as I doubt if America's corrupt liberal MSM wolfpack press is going to give this info much "press":

From the LATimes today:

WASHINGTON Fueled by disappointment at the pace of change since Democrats assumed the majority on Capitol Hill, public approval of Congress has fallen to its lowest level in more than a decade, according to a new Los Angeles Times/Bloomberg poll.

Just 27% of Americans now approve of the way Congress is doing its job, the poll found, down from 36% in January, when Democrats assumed control of the House and the Senate.

And 63% of Americans say that the new Democratic Congress is governing in a "business as usual" manner, rather than working to bring the fundamental change that party leaders promised after November's midterm election."

.......the "key" word being decade....................come on 2008

[quatermass2]

"........America's corrupt liberal MSM wolfpack press"
Posted by perception5 at 01:49 PM : Jun 12, 2007

Poor perception indeed. It's a well-known fact that "reality" has a "liberal bias", and doesn't conform to wingnuts' quasi-fascist demands. What's the matter - Faux News and AM screech radio not winning the "war on terror" for you?

The issue at hand is the most fundamental legal right we have: habeus corpus. When a "President" thinks he has the power to throw an American citizen in a military prison with no legal recourse, he stops being "President" and becomes dictator. There's no arguement.

[mcvet]

.......the "key" word being decade....................come on 2008

Posted by perception5 at 01:49 PM : Jun 12, 2007


SO in the mind of a Fascist the people will turn back to the Garbage Dump that GAVE us all the problems to begin with? ROFLMAO Now THATS a laugh! The PEOPLE KNOW you clown that the party holding up the CHANGE they want is NOT the Democrat Party... NO! It's the party of the Fascist, the Repigs!! Sieg Heil Y'all. ROFLMAO

[mcvet]

"The presidents willy-nilly approach to terrorism"???????? Can anyone please explain what the Democrats and leftwingers approach to terrorism is???
Posted by notblue at 01:12 PM : Jun 12, 2007
+ report abuse

Now YOU were obviously on the WRONG side of the 60's and YOU ask a stupid question like that? ROFLMAO Sparky the Record is oh so clear and "Liberal's" have so much better a record of fighting Terrorist. Hell the biggest Terrorist in the HISTORY of man kind was defeated by a "Liberal" over the objections of "con's". Maybe YOU should attend a night class in American History. LMAO By all means stay away from those Nazi Youth Camps or Skin Head Rally's, they are rotting your brain. Sieg Heil Y'all.

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

[donnie900]

I highly recommend that you loud mouth blue suits start acting like americans, and stop acting like a buncha self righteous unconstitutional freaks.

What the heck ya fighting for? Ya idiots?

[melcarnahan]

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

[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.

[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.

[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...

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 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.

[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.

[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.

[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.

[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.