Terror Case Shows Bush, Libertarian Rift

[boutons_]

December 12, 2006
Terror Case Shows Bush, Libertarian Rift

By THE ASSOCIATED PRESS
Filed at 8:14 p.m. ET

WASHINGTON (AP) -- Prominent conservative lawyers joined liberal colleagues Tuesday in opposing Bush administration anti-terror tactics, arguing that an immigrant held as an enemy combatant has a right to seek his freedom in court.

The legal brief, filed in the case of suspected al-Qaida sleeper agent Ali Saleh Kahlah al-Marri, argues that a new military commissions law is uncons utional.

The argument has been made in this and other detainee cases, but Tuesday's brief is notable for the bedfellows created by the politics of anti-terrorism. Staunchly Democratic law school deans Harold Koh of Yale and Laurence Tribe of Harvard were joined by lawyers such as Steven Calabresi, who served in the Reagan and first Bush administrations and helped found the conservative Federalist Society.

''It shows the phrases 'conservative' and 'libertarian' have less overlap than ever before,'' said Richard A. Epstein, a University of Chicago law professor and Federalist Society member who signed the brief. ''This administration has lost all libertarians on all counts.''

Of the 29 professors signing the brief, David L. Shapiro, a deputy solicitor general during the first Bush administration, joined Calabresi and Epstein as the most prominent names with conservative ties. Others were outspoken Democrats and some weren't politically active.

In June, the Supreme Court said the Bush administration's handling of detainees violated U.S. and international law. Bush then pressed for, and got, a new law that he said would help the government prosecute terrorists.

The Military Commissions Act allows the military to hold detainees indefinitely and strips them of the right to challenge their imprisonment in U.S. courts. The Justice Department did not immediately have a comment Tuesday night but has defended the law as a cons utional and necessary tool to combat terrorism.

Like the warrantless wiretapping program and the Patriot Act, the law has divided conservatives. Some say the president must have the power to act in times of war and that detaining enemy combatants is the only way to ensure they won't return to the battlefield. Supporters of the law say the detainees are more like prisoners of war than criminal defendants.

Civil rights groups and conservatives with a libertarian viewpoint see the law as a government infringement on personal freedom.

''This involves the executive branch changing the rules to avoid challenges to its own authority,'' Koh said Tuesday. ''Serious legal scholars, regardless of political bent, find what the government did inconsistent with any reasonable visions of the rule of law.''

Epstein, who said he regards Koh as ''mad on many issues,'' said the al-Marri case is ''beyond the pale.''

''They figured out every cons utional protection you'd want and they removed them,'' Epstein said.

Al-Marri is the only enemy combatant known to be held in the United States, where immigrants normally have the right to use U.S. courts to question the legality of their detention.

Al-Marri was arrested in 2001 while studying in the United States. He had faced criminal charges until authorities designated him an enemy combatant and ordered him held at a naval base in South Carolina.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., is considering al-Marri's case. Clinton administration Attorney General Janet Reno warned the government's argument in the case could set a dangerous precedent.

Jonathan Hafetz, an attorney with the Brennan Center for Justice who is handling the al-Marri case, said it brings up issues about what the framers of the Cons ution intended -- something libertarians and judicial conservatives often look to.

The al-Marri case, along with two cases before a federal appeals court in Washington, are likely bound for the Supreme Court, where its fate could be decided by whether the court's conservative justices prove to be libertarians on this issue.

[George Gervin's Afro]

QUOTE]The Military Commissions Act allows the military to hold detainees indefinitely and strips them of the right to challenge their imprisonment in U.S. courts.[/QUOTE]

This is what concerns me the most about Bush's detainee policies. IF someone is innocent they would never be able to challenge their conviction or imprisonment. I heard a great example of how something like this could happen. If a trusted US source in Iraq had a vendetta againt another family or person(s) they could simply say "that guy is al-qaeda".. game over and that person is in prison for life with no avenue to prove he is innocent. Scary stuff..



Ray, Yoni please refrain from responding that I want terrorists to have cons utional rights, etc... I never said that but I do think these people should have some type of recourse. I have no problem locking up bad guys forever because if/when they get out it is highly certain that they will harm Americans or their allies..

[xrayzebra]

^^I didn't know that. I thought hate was a crime.