Court of Appeals: Due process = Presumption of innocence

The Court of Appeals in Virginia handed down another devastating rebuke of the Bush administration's lawless treatment of terrorism-suspects. It's not too grandiose to say that this ruling also demonstrates why due process is inextricably linked to the presumption of innocence.

Here's a spare narrative of the events: In December 2001 federal agents arrested Ali Saleh Kahlah al-Marri, a citizen of Qatar who was enrolled as a graduate student in Illinois, and eventually began to prosecute him for bank/credit card fraud. It alleged he was an agent of Al Qaeda. At long last, on Friday, June 20, 2003 the court scheduled a hearing on pre-trial motions.

Then on Monday, June 23, 2003 Bush abruptly declared al-Marri to be an "enemy combatant" and ordered him to be transferred to a Navy brig in South Carolina. Prosecutors asked the Illinois court to dismiss the indictment, which it did with prejudice (meaning the government could not refile the charges). Al-Marri was spirited off to Charleston, where he was held incommunicado for 16 months and, he says, interrogated abusively, threatened, and tortured via sensory deprivation. The administration has continued to insist that al-Marri is a member of Al Qaeda.

In the ruling today, the Court directed that the Pentagon must either prosecute al-Marri for a crime, deport him, imprison him as a material witness, or release him "within a reasonable period of time". "But military detention of al-Marri must cease."

As the Court observed, President Bush had abused his authority as Commander in Chief of the armed forces to deprive suspects of their civil rights by transferring them illegitimately into military custody.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”

The core issue was why the government had begun al-Marri's prosecution only to transfer him without explanation to a Navy brig and interrogate him in secret, while denying him access to civil courts and charging him with nothing. The administration has never explained that sudden reversal. Al-Marri asserts that the government feared to proceed with the trial.

Marty Lederman highlights this section from today's ruling:

The Government’s treatment of others [in the criminal justice system] renders its decision to halt al-Marri’s criminal prosecution -- on the eve of a pre-trial hearing on a suppression motion -- puzzling at best. Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that "indefinite detention for the purpose of interrogation is not authorized." 542 U.S. at 521. We note, however, that not only has the Government offered no other explanation for abandoning al-Marri’s prosecution, it has even propounded an affidavit in support of al-Marri’s continued military detention stating that he "possesses information of high intelligence value." See Rapp Declaration. Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an "enemy combatant" only after he became a "hard case" by "reject[ing] numerous offers to improve his lot by . . . providing information." John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006).

In other words, the administration decided that the man's habeas corpus rights meant nothing when balanced against the desirability of interrogating him at leisure and in any fashion it wished.

Lederman also notes that the timing of the transfer was suspicious in another way as well. On April 4, 2003 the Defense Department Working Group report on detainee interrogations was issued, asserting preposterously that the Commander in Chief could cite "necessity" and "self defense" as grounds for ordering illegal and abusive interrogations. This was the work mostly of several nuts who then infested the Office of Legal Counsel; it was based upon the infamous Bybee memo of August 1, 2002. The Working Group report was rushed out in order to thwart the attempts by military lawyers to put a stop to the illegal abuse of prisoners at Guantanamo. As far as Rumsfeld was concerned, from April 4, 2003 it was full steam ahead with nearly every conceivable form of abusive interrogation.

And it was in June 2003 that the civil trial of al-Marri was abruptly abandoned, and he was transferred to the Charleston naval brig.

As the Court of Appeals stressed, the purpose of military detention is "to prevent the captured individual from serving the enemy." There was no justification for handing al-Marri over to the military because he was already under arrest and awaiting trial.

The obvious purpose for declaring al-Marri an "enemy combatant", whatever that is (the term was invented by the Bush administration to cloak an abundance of abuses), and throwing him into a military brig incommunicado, was to abuse and degrade him until he "confessed" whatever the government wanted him to confess to.

That's the way things used to be done in the former Soviet Union. In the US, however, we cherish the presumption of innocence and other liberties that go hand in hand with it—the right not to incriminate oneself and, above all, due process. Today's ruling struck a blow for them.

crossposted from Unbossed