Obama and the Rule of Law

As Barack Obama enters office, he will be faced with one of many problems created by the Bush administration, the case of Al-Marri v. Pucciarelli, No. 08-368 that will go before the US Supreme Court. The case involves a Qatari man who was captured while in the US legally and has been held indefinitely without charges as an “enemy combatant.” The case will challenge Obama to state his position with respect to the operation of the rule of law in the United States and the primacy of the US Constitution. Under a rule of law, a person has the right to know what crimes he is being charged with, the right to see and confront evidence against him and the right to defense in a speedy trial. None of these Constitutional protections have been afforded Al-Marri.

Bush administration officials claim that the man is “too dangerous” to be allowed free as he might provide aid to Al Qaida or other terrorist groups. Yet these vague assertions are not backed up by any coherent supporting facts. They amount to a standard that if a president declares someone dangerous, that person is stripped of all due process rights. The US judiciary has forced the Bush administration to defend its position by requiring the hearing on the Al-Marri case. Now Obama will be obliged to submit a brief stating his position on the matter. Looking for clues as to Obama’s approach, the New York Times cited the following in an article:

A year ago, Mr. Obama answered a detailed questionnaire concerning his views on presidential power from The Boston Globe. “I reject the Bush administration’s claim,” Mr. Obama said, “that the president has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.”

However, this response partially sidesteps the core issue. Bush’s claim to authority is that he has the power as President that exceeds the US Constitution in times of war. This raises an old legal conceptual question whether an office can exceed the authority of the law or body that creates it. Traditional restraint and a desire to avoid the excesses of King George III that led to the American Revolution have caused the judiciary to reject such arguments of an “Imperial Presidency” in favor of protecting the balance of powers that is built into the fundament of US government and embodied in the Constitution.

Some of the legal issues have been obscured by racist antipathy because the detainee is Muslim. However, the strength of a legal system is not in its ability to deal justly with the popular cases, but rather with those that present unpopular contestants or issues. Much of the Bush argument is based upon fear mongering and deliberately fomented hatred of Arabs and Muslims precipitated by his own political agenda. Part of the Bush administration argument must rest upon the assertion that Al-Marri is not entitled to protection under the Constitution. However, many cases have established and upheld the principle that the Constitution speaks to the limits of authority of the government and the means that it may use to enforce laws. There is no clear legal answer why the detainee cannot be tried under traditional principles of jurisprudence and due process that this country has stood for in the past. If he has committed acts of terrorism or tangible support to terrorist organizations, let that be proven in court.

This, however, brings us to the tangled web of the Bush administration fiasco, again as cited in the New York Time article:

Another alternative for the new administration is to prosecute Mr. Marri as a criminal. But it is not clear that there is admissible evidence against him.

The basic problem is that the supposed evidence upon which the Bush administration would rely to imprison Al-Marri is based upon torture. This presents several major problems for Bush. First, to be required to present such evidence would expose the Bush administration to potential war crimes prosecution. Second, the evidence would be inadmissible as such evidence is deemed inherently unreliable. Third, to maintain prosecution on a theory that the government cannot charge the defendant and cannot prove the basis for his detention would stand basic principles of law and criminal jurisprudence on end. It is simply irrational. Beyond that, to continue to indefinitely detain a man without charges simply to avoid embarrassment to the Bush administration relating to its use of internationally outlawed interrogation practices would undermine basic principles of justice and human rights.

What makes very little sense from an objective standpoint is why the case even need reach the Supreme Court. There is no one man who is so dangerous that he cannot be subjected to the rule of law. If, as happens routinely, Al-Marri were acquitted because of illegal interrogation or police abuse, he would be one of the most scrutinized men on earth. It is doubtful he could ever present any real threat approximating the imaginary one concocted by the Bush administration. If the threat were genuine, the Bush administration would not be so reluctant to put it forward for judicial scrutiny. The case is about power and prerogatives, and about whether the President is subject to the Constitution. Even the purported “war” that the Bush administration uses to support its exercise of presumed war powers is a fabrication. So the Bush administration argument is a legal house of cards.

Hopefully, Obama will exercise his rigorous legal training and sense of integrity to submit a brief that disavows the expansive claims of the Bush administration. In doing so, he will make great strides toward bringing the country back onto the course of a “rule of law.” To fail to do so simply suggests that we can expect more of the same politically corrupted jurisprudence and sophistry that we have experienced under the Bush regime.