January 9, 2009 9:59AM

The Measure of Our Own Liberties

As you may have heard, the Supreme Court recently granted certiorari to Ali Saleh Mohamed Kahlah al-Marri. The unclassified version of the evidence against him is available in the Rapp Declaration. It reads like a movie plot; I recommend it to you.  


After the 9/11 attacks, the FBI arrested al-Marri, an exchange student at Bradley University in Peoria, Illinois. The government indicted him for using false identification, bank fraud, giving false statements to the FBI, and possession of counterfeit credit card numbers. The government alleges that al-Marri met with Osama Bin Laden, was working with senior Al Qaeda organizers, has a more-than-casual interest in poisons, and was told by his handlers to be in America before September 11th or to forget about executing his mission here. 

Before al-Marri began trial, the government removed him to military custody and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed upon his release). He has since remained in a naval brig in South Carolina. He holds the distinction of being the only domestically detained enemy combatant in U.S. custody.  

The Fourth Circuit heard his habeas claim, releasing a fractured opinion. The panel found, 5-4 on each issue, that (1) the government can detain al-Marri as an enemy combatant; and that (2) al-Marri is owed more process to contest his status as an enemy combatant. 

Wrong on the Law

What happens to al-Marri is important because, according to Bush administration attorneys, the treatment he gets is what any American citizen would get if detained by the government as an enemy combatant. Congress did not give the president domestic carte blanche in the Authorization for Use of Military Force (AUMF) passed after 9/11. Detention of al-Marri as an enemy combatant is directly contrary to Senate rejection of proposed domestic military powers and Patriot Act provisions providing for temporary detention of "terrorist aliens." 

The Supreme Court should reject this watering down of our essential civil liberties. Judge Motz of the Fourth Circuit does the math for us at page 45 of the Fourth Circuit's opinion. Four justices (Stevens, Souter, Breyer, and Ginsburg) found in Rumsfeld v. Padilla that the AUMF "does not authorize . . . the protracted, incommunicado detention of American citizens arrested in the United States." Justice Scalia filed a dissenting opinion in Hamdi v. Rumsfeld, holding that absent a suspension of the writ of habeas corpus, citizens cannot be held domestically as enemy combatants and must be tried in civilian courts. 

Wrong on Policy

The course we have taken with al-Marri is as wrong on policy as it is on the law. Rather than give suspected Al Qaeda operatives the opportunity to play the martyr and wage propaganda warfare against us, we should be putting them in their proper place. Nobody's heard from or cared about would-be shoe bomber Richard Reid since his conviction. He received the life sentence he deserved and we all went on with our lives. As Judge William Young said at Reid's sentencing, "we all know that the way we treat you, Mr. Reid, is the measure of our own liberties."

The future of counterterrorism policy will be discussed at Cato's upcoming conference, Shaping the Obama Administration's Counterterrorism Strategy. Click here for more information.