The Supreme Court and Mr. Al-Marri, It Could Be Worse.

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By now you probably know that the Supreme Court has dismissed the case of Mr. Al-Marri, which is a bad thing of course. Mr. Al-Marri was arrested on charges of credit card fraud by the FBI in December of 2001. He was in this country with his wife and five children to attend college in Peoria, IL. So far nothing really that out of the ordinary, but in June of 2003, 18 months later on the eve of a hearing to suppress illegally sized evidence in his criminal trail, he was declared an “enemy combatant” by the criminal President  Bush.

He was then taken not to Guantanamo Bay like most so-called enemy combatants, but to a military brig in South Carolina. There he sat for nearly six years without any further charges against him. He filed suit to in Al-Marri v. Spagone to under the theory that a legal US resident could not  be held indefinitely by the government without charges. The 4th Circuit Court of Appeals found that based on the facts of this case, the President could indeed name anyone, citizen or not, as an “enemy combatant” and then hold him or her without charge for as long as the President felt.  

This strikes right at our Habeas Corpus rights as citizens. It is terrifying, in conjunction with the Office of Legal Council memos penned by John Yoo (soon to be disbarred, if there is any justice) the level of power that the criminal Bush administration felt free to use for the nebulous goal of national security. The ACLU, who had brought the original case appealed to the Unites States Supreme Court.

As many of us know, it has been in the Supreme Court that many of the criminal Bush administrations most egregious assertions of Presidential power have died. On Friday February 27th Mr. Al-Marri was finally charged with two counts of giving aid to a terrorist group, namely Al-Qaeda. This changed the playing field significantly. Now that he was charged and transferred to a civil authority, it made the urgency that prompted the Supreme Court to hear this case disappear.

There is a concept called “standing” that is used to determine if a case is valid to be heard in any court. The basic idea is that if you are not being hurt by something, then you can not sue to have it stopped. This has been effectively used to severely limit the number of cases that courts can hear for all types of abuses in the last 20 years.  The Supreme Court in particular uses it on a regular basis. In recent years they used it throw out a challenge to “Under God” in the pledge of allegiance, as the father that filed the suit was not the custodial parent and so was declared not the have standing for the suit.

Now that Mr. Al-Marri was no longer being held as an uncharged enemy combatant his standing on this issue evaporated. In fact today the Obama Administration argued successfully that there was no need to move forward with this case, as the remedy that would be sought was already in place. The main argument for going forward with this case, as the ACLU argued was that without a decision from the Supreme Court limiting the ability of the Executive Branch to declare residents or citizens enemy combatants, this could very well happen again, any time there was an Administration that had the will to do so.

The Justices did not find this argument persuasive enough and so they dismissed the case. This is defeat for the rule of law, mostly. The Justices took the rare step to invalidate the 4th Circuits ruling in this matter. This is important as a Circuit Courts ruling is often relied upon by other Courts as precedent and direction. It is not as final as a Supreme Court ruling but it does carry a lot of weight with other Federal Courts. By invalidating that ruling the Supreme Court Justices have said that they would have likely to have ruled against the government in this matter and have given guidance in the form of a warning to both lower courts and the current Executive Branch.

Ideally this will lead to some action in Congress that will define and limit the Presidents ability to decide that he does not like someone’s face and through them into a military prison without charge or recourse for as long as he likes. It is not a great day for the Rule of Law, as the best thing that could have happened was the Supreme Court actually heard and ruled on this issue, but it is not a bad day either.

The lesson here is not to get complacent about this issue. We need the Congress and our President to put structures in place so that when we do have the misfortune to elect malignant idiots in the future, they are not able to do the things the criminal Bush and his henchmen have done in the last eight years.

You have the floor.