Written by ACRU
The facts for this article, but not all of the legal conclusions, come from an article in the Los Angeles Times on 5 December, 2008. It concerns an apparent representative of Al Qaeda in the US, who is also a legal resident in the US. On 5 December, the Supreme Court agreed to hear his case.
The ACLU is heavily involved in the case, since it represents the individual in question, Ali Saleh Kahlah Marri. The ACLU, and the Times article, both pose the question as to whether the President of the United States can "order the military to arrest and hold a civilian based on suspected terrorist ties."
The article says that this is what President Bush did by defining Marri as an "enemy combatant." This is the first of many errors in the article. Marri was called an "illegal enemy combatant." However, the Geneva Conventions, like the Hague Conventions before them, defined illegal combatants as those who were not in organized units, did not wear uniforms, did not carry weapons openly, and hid among the civilian populations.
Illegal enemy combatants were excluded from the protections of those Conventions, and under the Law of War could be summarily tried before military tribunals, and executed. Witness the trials and executions of the American Colonel Nathan Hale by the British, and of the British Major John Andre by the Americans during the Revolutionary War.
Now, this is not a trivial distinction. "Enemy combatants" are ordinary soldiers in the enemyÃ¢s army. They are held for the duration, and released when the war is over. None are charged with crimes (excepting war crimes themselves). None are entitled to lawyers, nor subject to civil or criminal trials, like the captured German soldiers held in Arkansas during WW II.
The overwhelming error in the article, and in the ACLU's position, is the failure to recognize the Quirin case from 1942. In it, a unanimous Supreme Court ruled that it was proper, under the Law of War, for the US to arrest, try by military tribunal, and if convicted, to execute, illegal enemy combatants.
Eight German saboteurs had entered the US in civilian clothes with money, maps, and plans to blow up various war-related facilities. All eight were tried and convicted in military tribunals. Six were sentenced to death. One was apparently an American citizen, born in Chicago. The Court unanimously held that their trials and convictions were proper. That, under the Law of War, they were not entitled to the protections of the Bill of Rights, nor trial in courts under Article III of the Constitution.
As recently as the Hamdan case a few years ago, the Supreme Court still recognizes the Quirin case as good law. And, so it should. Our nation is at war, and the Constitution is not a suicide pact. The Court cannot rule in favor of Marri unless it is willing to reverse the Quirin case from WW II.
Apparently, Marri was operating in the US with information on cyanide and other poisons, and was in the pay of Al Qaeda. It is nearly impossible to draw a factual distinction between him and the German saboteurs who were tried and executed under the Quirin decision.
The reporter, and other reporters and editors around the country who prepare stories on the Marri case in the Supreme Court may be ignorant of the Quirin case from WW II. But a competent lawyer, if they consulted one, could fill them in.
Source of this story on the Net:
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