Al-Marri Will Face Trial

by hilzoy

Good news:

"Federal prosecutors are preparing to charge Ali Saleh Kahlah al-Marri with providing material support to al-Qaeda terrorists in a groundbreaking move that would put the alleged sleeper agent under the jurisdiction of the U.S. court system, according to sources familiar with the issue.

Indicting Marri in a federal court marks a significant change from the policies of the Bush administration, which had argued that al-Marri should be tried in a military tribunal proceeding and that he could not use American courts to contest his legal status.

Marri is the last remaining "enemy combatant" in the United States and has spent 5 1/2 years in a military brig in South Carolina. The criminal charges, which sources said also could include conspiracy, will be among the most early and critical signals about the Obama administration's approach to handling alleged terrorism suspects."

One more person moved out of legal limbo and into our normal court system. One less person about whom people could argue that he somehow must be tried under a whole new legal system, those that have served us well for over two centuries being somehow inadequate to his case. And one less blot on our commitment to the rule of law. 

***

UPDATE: Jane Mayer reports that al-Marri has been indicted, and adds:

"An indictment would signal a major shift in legal policy from the Bush years. It would also fulfill President Obama’s campaign pledge to restore traditional American legal practices by treating terror suspects as common criminals, rather than stripping them of standard legal rights and classifying them neither as criminal defendants nor prisoners of war."

Comments

[JaO]

An interesting question, assuming the Post story to be accurate, is what DOJ will do about the Fourth Circuit precedent allowing Al Marri to be held as a military prisoner.

Will the Obama administration move to vacate the Fourth Circuit ruling? When the Bush administration, obviously afraid to test the question in the Supreme Court in the Padilla case, made a similar motion, the court did not let them do that. So the Padilla ruling stands in the lower court.

Al Marri's ACLU lawyers will argue that notwithstanding the civilian charges and civilian custody, Al Marri's case should go forward in SCOTUS.

[John Miller]

Jane's statement is important in more ways than one. First is what it means re belief and trust in our justice system.

But secondly, by treating terrorists as common criminals we are, to some extent, demystifying them. By treating them as something beyond that, some form of super criminal, we allow them to attain an image, both here and abroad, as somehow special people. People who have power over us.

Common criminals don't have that same mystique or power.

[cleek]

no no no. this changes nothing. he's still just as bad as, if not worse than, Bush.

[stonetools]

Dunno. The likelihood that the case will be dismissed because of evidentiary problems is pretty doggone good. Even if all the interrogation evidence comes in ( a near miracle if he gets the full US Constitution protections) there the difficulty of gathering and presenting evidence and witnesses from foreign countries.
If he is acquitted on a "technicality" ( which is how the public interprets cases dismissed after evidence is suppressed) then the ACLU will be happy , but most Americans won't be. Republicans will make hay on that.

[Xanthippas]

One more person moved out of legal limbo and into our normal court system. One less person about whom people could argue that he somehow must be tried under a whole new legal system, those that have served us well for over two centuries being somehow inadequate to his case. And one less blot on our commitment to the rule of law.

I agree with all that, but the ACLU is not as happy. They apparently like their odds before the Supreme Court. I think that this move might signal an unwillingness on the part of the Obama administration to assert that they have the authority to indefinitely detain terrorist suspects on U.S. soil (or it might signal that they don't like their chances) but at the same time a move like this will leave the matter in limbo, just as Padilla's transfer to the criminal justice system left the matter of indefinite detention of U.S. citizens in limbo. Maybe they won't assert the authority, but the ACLU would like for no President to be able to assert this authority. In that sense at least, it's something of an incomplete victory.

[Xanthippas]

Also it's worth noting that in Jane Mayer's recent article she points to people like Neal Katyal, an Obama appointee to DOJ and lead counsel on "Hamdan", as arguing for a national security court system. Is this move a retreat from that?

[J. Michael Neal]

I agree with all that, but the ACLU is not as happy. They apparently like their odds before the Supreme Court. I think that this move might signal an unwillingness on the part of the Obama administration to assert that they have the authority to indefinitely detain terrorist suspects on U.S. soil (or it might signal that they don't like their chances) but at the same time a move like this will leave the matter in limbo, just as Padilla's transfer to the criminal justice system left the matter of indefinite detention of U.S. citizens in limbo. Maybe they won't assert the authority, but the ACLU would like for no President to be able to assert this authority. In that sense at least, it's something of an incomplete victory.

In other words, the ACLU blasts Obama when he maintains the Bush arguments in court, and blasts him when he doesn't maintain the Bush arguments in court.

[OCSteve]

The information war is not going well.

So my wife purposely avoids politics. But her dad is sending emails about Obama every day. She at least asks me – “Is there anything to this?” I can generally say NO, it’s a BS Internet meme and tell your dad to stop spamming you.

But the meme right now is that Obama is releasing 911 terrorists into the general population…

[Ugh]

But the meme right now is that Obama is releasing 911 terrorists into the general population…

meme among who?

[cleek]

meme among who?

people who are too stupid to know that the voice coming out of the radio isn't the voice of God himself.

[OCSteve]

people who are too stupid to know that the voice coming out of the radio isn't the voice of God himself.

A bit insensitive as I said it was family, but – yeah. Rather than stupid I’d call them “low information voters”. But yeah, if I wasn’t related stupid would do.

You have to realize that us news/political geeks are not the norm. We are the outlier. Most of America gets their politics via sound bites at 6PM, or, more and more, via email and the web.

Ugh: Among low information voters. The email I read was just devastating if you did not keep up with this stuff daily. It has just enough factual content to seem legit.

[cleek]

A bit insensitive as I said it was family...

guess i didn't assume anyone you knew actually believed it. no personal insult intended - only to the GOP in general :)

on a similar note, while i was in the dentist chair today, with that little metal hook in my mouth, the dentist started telling me about the new rumor going round about Obama being born in Kenya. he knew all the little details, too! dates, timelines, etc.. i did not argue, as he, being ex-Navy, with a handful of sharp things, clearly had the upper hand.

[Nell]

OCSteve: The email I read was just devastating if you did not keep up with this stuff daily. It has just enough factual content to seem legit.

Could you do us the favor of reproducing it here, OCS? Thanks in advance.

I'd be interested to see how the e-mail managed to give the impression that "Obama is releasing 9/11 terrorists into the general population" when only one prisoner has been released to date, and that to Britain.

There is an organized smear and fear campaign going on, led by "Military Families United", as I described in the Bagram habeas thread. It includes e-mails and television ads, which list the dismissed charges against Binyam Mohamed but without bothering to mention that they were dismissed almost a year ago.

cleek: no no no. this changes nothing. he's still just as bad as, if not worse than, Bush.

We're all appreciative of your constructive, substantive contributions to the thread.

[OCSteve]

cleek: No offense taken – I knew what you meant. But really, most people do not keep up with this stuff. We are just not normal – face it. ;)

Nell: I’ll try. I told her to delete it and not reply or forward it. If it’s still in the deleted folder where I can easily retrieve it I will.

[Nell]

J. Michael Neal: In other words, the ACLU blasts Obama when he maintains the Bush arguments in court, and blasts him when he doesn't maintain the Bush arguments in court.

This is the ACLU's statement, which I would not characterize as "blasting" Obama:

"...the decision to charge al-Marri is an important step in restoring the rule of law and is what should have happened seven years ago when he was first arrested. But it is vital that the Supreme Court case go forward because it must be made clear once and for all that indefinite military detention of persons arrested in the U.S. is illegal and that this will never happen again."

I share the desire to get a clear Supreme Court ruling that neither legal residents nor U.S. citizens may be arrested and held indefinitely on a president's say-so, and will not feel that the rule of law has been completely restored until we have one.

Given his indictment, al-Marri will immediately be moved to a civilian prison in Illinois and have access to family and his lawyer(s), yes?

Late in the Bagram thread, I reported this appalling news about al-Marri's brother Jarallah:

British immigration are holding and planning to deport former GTMO prisoner Jarallah al-Marri, brother of Ali. ... [He] had just last month traveled to and within the UK as part of a public and publicized speaking tour organized by Cageprisoners, replacing Sami el-Hajj (whom the UK govt denied a visa). He made plans to return this week in order to talk with lawyers and human rights activists about Ali's case, and to possibly meet Binyam Mohamed, with whom he had been held for years at Guantanamo.

The excuse of British immigration authorities for holding and deporting him this time? He didn't mention on his visa form that he had been imprisoned at Guantanamo.

Contact info for calls to demand al-Marri be released and allowed to continue his planned visit is here.

Given today's developments, it's even more urgent that Jarallah be freed to continue his visit and meet with lawyers.

[hilzoy]

I think it's crucial to bear in mind what OCSteve said: not everyone is a political junkie. Nor should they have to be: in a sane world, you'd be able to have a basically accurate, if not very detailed, view of things without being one. Personally, I think of every little lie that someone who should know better produces as a tax on all of our time.

But OCS's relatives are absolutely a foretaste of what happens if, say, Obama releases the Uighurs.

I think that the case can go forward even once al-Marri is in the normal legal system, but it's not guaranteed to. On the other hand, I would not have wanted him to stay in limbo, as opposed to being either convicted or acquitted as the evidence warrants, just so that it could.

[Gary Farber]

"But the meme right now is that Obama is releasing 911 terrorists into the general population…"

I think we've gone round innumerable times now that there's always going to be a lunatic fringe making up crap about Obama and Democrats: so what? Do you have any proposals to change this? If not, well, that's just the way it is: there are a lot of loony people out there. I'm sorry your father-in-law is one of them. But I don't know what you want anyone, anyone at all, to do about that.

Certainly Obama can't govern on the basis that there are lunatics out there, and he should change policy to fit their lunacy, when there always will be such lunatics making up crap, no matter what he does.

And there are lots of things he just shouldn't do, like, say, lock people up indefinitely on his own say-so, no matter how many loony people think he should.

[Nell]

But OCS's relatives are absolutely a foretaste of what happens if, say, Obama releases the Uighurs.

Obama has not only expended no effort or political capital in getting out ahead of this kind of fear and ignorance, but has actively fed into it:

Obama's interview with Matt Lauer just before the Super Bowl was his first sit-down on U.S. television since the inauguration; it had, intentionally, an enormous audience. There is no way, then, to paint this from Obama as anything but a deliberate effort to feed the paranoia that has made release of the Uighurs into the U.S. difficult. Remember as you read that there are only about 250 prisoners total at Guantanamo: "we’ve got a couple of hundred [!!} of hardcore militants [!!] that, unfortunately, because of some problems that we had [!!]previously in gathering evidence, we may not be able to try in ordinary courts –- but we don’t want to release [!!]."

...he [said] something to one of the biggest TV audiences of the year that could have been said by Dick Cheney with a one-word change ('terrorist' for 'militant').

[J. Michael Neal]

I share the desire to get a clear Supreme Court ruling that neither legal residents nor U.S. citizens may be arrested and held indefinitely on a president's say-so, and will not feel that the rule of law has been completely restored until we have one.

That's great, but, if the Obama administration simply withdraws Bush's arguments, and doesn't make others of its own, you will never get a court decision. Courts will only rule if there is a real dispute. Had the administration stood up and said that they don't believe that there is a good argument for the state secrets privilege, that ends the case, or at least the part of it that deals with the appropriateness of the privilege. It's over.

If you want there to be a ruling on the privilege, or habeas at Bagram, then you have to be in favor of the Obama administration choosing not to withdraw Bush's arguments. You can't have both, so pick one.

[Nell]

I'm not sure who you're arguing with here, J. Michael. Neither I nor the ACLU has objected to al-Marri's being indicted.

Neither I nor the ACLU hold the position hypothesized (not attributed to anyone) by Hilzoy:

I would not have wanted him to stay in limbo, as opposed to being either convicted or acquitted as the evidence warrants, just so that it could.

The Obama DoJ has three weeks in which to file in the Supreme Court al-Marri case. I can well imagine their making a case that still leaves something to dispute.

The ACLU is asking, basically, that they not seek dismissal of the case as moot.

[Nell]

J. Michael Neal: If you want there to be a ruling on the privilege ... then you have to be in favor of the Obama administration choosing not to withdraw Bush's arguments.

The privilege case is completely different, for many reasons. One major difference is that there was and is every expectation that the court will rule in the government's favor, as they have in every other case in which state secrets privilege has been asserted.

Whatever the true motivations of the Obama DoJ in maintaining the Bush administration position in Mohamed v. Jeppesen Dataplan, doing so in the hope that they would be over-ruled was not one of them. The defensive and contradictory justifications put out by an unnamed source at the Justice Department through the stenographic medium of Marc Ambinder made that much clear.

Second, there was a perfectly reasonable alternative to the broad assertion of privilege: allowing the case to go forward and asserting the secrets privilege on particular pieces of the evidence.

Your point in the al-Marri case is stronger; if what's desired is a clear ruling against the previous administration's assertion of dictatorial powers, then there is a case to be made that Obama & Holder should just let the Bush DoJ's arguments stand -- with the understanding by the ACLU and me and the rest of the usual suspects that they're doing so with the expectation of a definitive, positive outcome.

Granted, that's high-stakes poker, given the Court we have. I'd prefer to leave the question unresolved than to have the Court rule badly, protecting as much executive power as possible because the Obama actions wrt al-Marri have shown that they don't actually believe in the "full monty" of arbitrary, indefinite detention.

[Nell]

@OCSteve: Thanks very much.

[Catsy]

I don't think it can be understated how hugely significant this is.

By taking someone who was in the very kind of legal limbo we're trying to eradicate and moving them into the scope and influence of the normal criminal justice system, Obama has committed himself to the outcome of that justice system. He has made a decision that will irrevocably show whether or not he meant what he said about restoring the Constitution and respect for human rights.

If it was his intention to maintain the Bush viewpoint on the president's inherent "right" to hold people outside the Constitution, he would never have placed al-Marri in a position where there's a nontrivial chance Obama would have to defy a court in order to continue to detain him.

Defying a court outcome would completely destroy Obama, and anyone should know it, most of all Obama himself. Republicans and Democrats both would crucify him, and the media would have a collective orgasm at Monica 2.0 as Obama gets impeached.

Even if you think that Obama doesn't mean what he says and evaluates things in cold pragmatic terms like the foregoing, it aingonnahappen.

[Gary Farber]

Speaking of legal limbo, Leon Panetta said today:

[...] He told the reporters: “If we stand by our ideals, if we stand by the beliefs that we have about what this country is all about, I think it makes us stronger, not only here but throughout the world.”

For one thing, he said, “We are closing black sites,” a reference to secret prisons abroad used to hold and question suspected terrorist combatants.

[russell]

Right on.

Republicans will make hay on that.

The Republicans will make hay about anything Obama says or does. When we find out what kind of dog the Obamas are getting, they will make hay about that.

But the meme right now is that Obama is releasing 911 terrorists into the general population…

Folks will float BS email memes no matter what Obama says or does. Obama has been a Muslim, a Marxist, a terrorist, the antichrist, the illegitimate son of Malcolm X, and god knows what else.

Sometimes you just have to ignore the noise and carry on.

This is good news.

[Nell]

Catsy: I don't think it can be understated how hugely significant this is

You mean 'overstated', yes?

It's very significant, especially as I doubt very much that there's much in the way of real evidence against al-Marri other than Khaled Sheikh Mohamed's statements under torture, since recanted, and the unsupported assertions of a DIA functionary:

In 2004, Jeffrey Rapp, an analyst at the Defense Intelligence Agency, claimed in a sworn affidavit, without providing evidence, that Marri had met with Osama bin Laden in Afghanistan, and “offered to be an al Qaeda martyr.”

[Enlightened Layperson]

Count me among the people who would prefer to see Obama repeat the Bush Administration's arguments to the Supreme Court and lose than stand down on his own. Given Justice Kennedy's behavior up until now, I think it safe to assume there would be a 5-4 ruling in al-Marri's favor.

This smacks very much of Jose Padilla -- the President, seeing he was going to lose, backed down and criminally charged the detainee rather than have a precedent against him. In the state secrets cases, where the courts have backed the government up until now, the Obama Administration continues the Bush positions. Only when they expect to lose do they change them.

Pardon my cynicism, but the Administration's recent behavior had made me very cynical lately.

[OCSteve]

Gary: But I don't know what you want anyone, anyone at all, to do about that.

I don’t expect anyone here to do anything about it. It’s a data point. Consider it or disregard it as you like.

Obama is the only one in any position to do anything about it. He has the biggest podium in the world and he is not using it effectively IMO. I suspect that many people (Obama included) just assume most people agree with them and there is no need to make a case for it. I mean of course everyone wants to close gitmo…

Nell: I'd be interested to see how the e-mail managed to give the impression that "Obama is releasing 9/11 terrorists into the general population" when only one prisoner has been released to date, and that to Britain.

OK I found it. They do it simply by repeating one of the alleged charges against him, and mentioning that he was released without mentioning anything about the UK.

There’s some other crap in there and links to some freeper posts, but this is the meat of it:

Let's review some of Barack Obama's most recent actions since he was inaugurated:

* His first call to any head of state as president was to Mahmoud Abbas, leader of Fatah party in the Palestinian territory.

* His first one-on-one interview with any news organization was with Al Arabia television.

* He ordered Guantanamo Bay closed and all military trials of detainees halted. He ordered that a suspected Al-Qaida terrorist being held there (who had allegedly planned to blow up high rise apartments in the US following 9/11) be released.

* He ordered all overseas CIA interrogation centers closed.

* He withdrew all charges against the masterminds behind the USS Cole and 9/11.

* Today we learn that he is allowing hundreds of thousands of Palestinian refuges to move to and live in the US at American taxpayer expense.

Everything there is at least partially true right? Most of it is 100% true, just without context. If you don’t keep up with this stuff and know the context and details it sounds pretty bad. You can assume only idiots will think these are all bad things – but idiots get a vote too. My wife is far from an idiot, she just doesn’t follow this stuff closely. Her response was to ask me (with some genuine concern) “Is this all true” and it took me an hour to fill in context and details.

[Ugh]

* Today we learn that he is allowing hundreds of thousands of Palestinian refuges to move to and live in the US at American taxpayer expense.

Wha?

[liberal japonicus]

OC, I think you should ask your wife, is it really possible that a sleeper agent could be elected President? That someone could fool so many people and actually be working to let the terrorists win (which I am assuming is the thrust of the email)? If that doesn't work, maybe you should ask if there are a series of facts, taken out of context, that could make your wife (or you could be the gentleman and point out facts in your life, if it won't get you busted ;^)) out to be something that she is obviously not. Dealing with the various points is just not efficient.

[cleek]

Google "His first call to any head of state as president was to Mahmoud Abbas, leader of Fatah party in the Palestinian territory. " to see the full letter.

so, now that they are convinced Obama is 99.44% pure evil, how long till the True Patriots rise up in armed rebellion ?

will it be OK if i call the next McVeigh a terrorist ?

[OCSteve]

Interesting cleek. Looks like it has been around for a while and someone just updated it to add in Binyam Mohamed.

LJ: Well I agree that dealing with the various points was not efficient. ;)

Ugh: From some of the links cleek pointed out, it looks like this is the concern.

[Nell]

OCSteve, thanks very much for the email, and cleek, thanks for the link illustrating that it's one of those passalongs like the "Iraq successes/painting schools" emails in 2003-4 or the "Obama is a Muslim" effort of 2007-8.

If you can get to these things fast enough, it's sometimes possible to pin down where they start, as a reporter did with the Muslim one.

Not that discrediting the sources and/or their "information" makes a difference to the hard core 25-30 percent: they're committed to believing and passing along anything that keeps them comfortably scared about the brown people and socialism and terra terra terra.

But the slice of conservatively inclined, low-info, yet reachable people is the significant demographic here. Blowing them off as idiots and bigots is not helpful.

OCSteve: Obama is the only one in any position to do anything about it. He has the biggest podium in the world and he is not using it effectively IMO.

Agree, though I'd phrase it that Obama is in the best position to do something about it.

[CharleyCarp]

Just to correct the record on Padilla: after the petition cert was filed, the government moved to transfer Padilla and suggested the court vacate the opinion. The Fourth Circuit said no, because it didn't like being played, and wanted to let the Supreme Court take on the issue.

After cert was denied, Padilla asked that the opinion be vacated, and the government opposed. Motion denied without explanation (and also without Luttig).

[Nell]

CharleyCarp, is the move to civilian prison automatic in the wake of the indictment, or will that also have to be fought for?

[CharleyCarp]

http://www.usdoj.gov/opa/pr/2009/February/09-ag-177.html>Al Marri link. Like that last line.

[CharleyCarp]

Nell, I think it is automatic. Or at least implied: they can't ask the SC to dismiss his habeas action without moving him out of military custody.

[Nell]

Though, truthfully, given the situation achieved at the brig at this point, maybe the lawyers won't push that, as long as his family is able to visit. I'd rather be in al-Marri's current situation than in Marion.

[CharleyCarp]

As my colleague likes to say, paraphrasing Wittgenstein, 'don't think, look it up.'

DOJ:

After the indictment against al-Marri was returned, the President directed the Secretary of Defense to transfer, upon the request of the Attorney General, al-Marri from the custody of the Defense Department at the Naval Consolidated Brig in Charleston, S.C., to the custody of the Justice Department for purposes of criminal prosecution. The President’s memorandum supersedes a June 23, 2003 Presidential directive that ordered al-Marri detained as an enemy combatant by the Defense Department. The transfer will be accomplished once the U.S. Supreme Court rules on a motion that the Acting Solicitor General files later today.

[Gary Farber]

"I mean of course everyone wants to close gitmo…"

Traitorous lefty, May, 2006:

(CBS/AP) President Bush says he would like to close the detention center in Guantanamo in Cuba, but is waiting for a U.S. Supreme Court ruling on whether inmates can face military tribunals.

"Obviously, the Guantanamo issue is a sensitive issue for people," Mr. Bush told ARD German television. "I very much would like to end Guantanamo; I very much would like to get people to a court.

Where was the outrage then?

[Nell]

Where was the outrage then?

Nonexistent, because no one -- supporters or opponents of his imprisonment policy -- believed Bush meant it when he said he "very much would like to end Guantanamo."

[OCSteve]

Nell: Not that discrediting the sources and/or their "information" makes a difference to the hard core 25-30 percent: they're committed to believing and passing along anything that keeps them comfortably scared about the brown people and socialism and terra terra terra.

I have to disagree here – it was a well crafted message. Mostly true, just leaving out context. As I said, my wife is no dummy. She has 2 MBA’s – one from U-Penn and one from Temple. She is a sharp cookie. She just doesn’t like to follow politics because it upsets her and she decided who the hell needs more stress? I convinced her to vote for Obama, and now enough of this stuff is getting past her filters that she is like, “What the hell is up with this?”

[Gary Farber]

Tangentially:

The Senate Intelligence Committee is completing plans to begin a review of the C.I.A.’s detention and interrogation program, another sign that lawmakers are determined to have a public accounting of controversial Bush administration programs despite White House concerns about the impact of unearthing the past.

The review, Congressional officials said, will focus in part on whether harsh interrogation procedures authorized by President George W. Bush actually succeeded in extracting important intelligence, as Mr. Bush and his advisers have asserted. The full scope of the inquiry is still being debated on the panel, but it is expected to address broader questions of whether the steps taken by the Central Intelligence Agency to detain and interrogate terrorism suspects were properly authorized.

[...]

Senior Democrats on Capitol Hill have given little evidence that they will heed White House concerns.

The Intelligence Committee is not expected to single out specific Bush administration officials or intelligence operatives, and public hearings are unlikely. But the committee would be likely to produce an unclassified report detailing aspects of the agency’s interrogation program.

Senator Patrick J. Leahy, Democrat of Vermont, who is chairman of the Judiciary Committee, said he was seeking to set up a much broader inquiry: an independent commission that would investigate Bush administration programs like the C.I.A.’s secret prisons and the National Security Agency’s domestic eavesdropping program.

[Nell]

@OCSteve: Sorry, I apparently wasn't clear. I'm counting your wife as outside the group of 25-percenters who want and need to remain in terrified-of-the-scary-brown-people mode. And I mentioned the 25-per-centers in the comment above in the context of being the ones who won't pay attention to anyone's debunking of information or discrediting of sources.

Your wife is very much part of the group I described as "conservatively inclined, low-info, yet reachable people". (And by low-info I meant just what you described wrt your wife: doesn’t like to follow politics because it's upsetting. Not stupid.)

That reality puts anyone who wants to counter MFU-style fear campaigns at a real disadvantage: Context for technically true and half-true statements takes up lots more time and space than the fear-inducing assertions themselves.

The one thing that could counter the fear of current prisoners held at Guantanamo is the president saying the unpleasant truth, the very thing that Obama won't say: most of them are innocent of any connection with terror against the U.S., and posed no threat to us at the time they were taken.

He won't say this because it would open up the war crimes can o'worms. His decision to opt for continuity rather than a massive clean sweep in the DoD is probably politically wise, but has seriously boxed him in rhetorically.

[Jesurgislac]

Nell: His decision to opt for continuity rather than a massive clean sweep in the DoD is probably politically wise, but has seriously boxed him in rhetorically

...has also put Obama in the position of condoning torture and extra-judicial imprisonment of foreigners - so far, just like Bush, talks a lot about how he's against torture, does nothing to stop it or prosecute - rather than prosecute Americans for torturing foreigners.

The problem is: you take the small step of assuming it doesn't matter if the torture continues for a while, the extra-judicial imprisonment of kidnap victims continues for a while... and after a while, well, Obama is guilty too, so he can't instigate prosecution. Nor can the next President. Nor can anyone else in the world, so long as the US remains top dog. But torture and kidnapping are now acceptable internationally... after all, the US does it.

No worries that there will be any outcry from the US public - given even Hilzoy, who is well-informed and reasonably ethical, or Nell, etc, thinks this is the right thing to do, till the first American PoWs are tortured by their captors who point out that they're doing nothing to Americans that the US executive, across two Presidents, has not already established is perfectly okay.

Not that I want Americans tortured. But good god, it would be nice to see some protest that this kind of thing is Not Okay - that Obama should have tried to put an end to it. Maybe he wouldn't have succeeded: maybe 7 years was long enough to establish it forever: but at least, he could have tried.

[Nell]

Jes, where have I given the least indication that I think this is the right thing to do?

The most positive thing I've said about the Gates retention is that it might be politicially wise. Not that I agreed with it, or supported it; I have explicitly said that I disagree with and oppose the decision.

I criticize, even condemn, many actions for which a case can be made that they are 'politically wise'. One that leaps to mind is Obama dealing with "he's a Muslim" b.s. by emphasizing his Christianity, not criticizing the idea that there's something inherently wrong with being a Muslim.

I've also spelled out and cited, in comments here and on my blog, how torture and treatment that violates the "humane" standard are continuing under Obama, not to mention the unnecessary prolonging of illegal and morally wrong imprisonment.

So please stop mischaracterizing me as condoning torture.

[Nell]

Way up above J. Michael Neal treated the ACLU's desire to see a Supreme Court ruling as "bashing Obama whether he sticks with Bush DoJ arguments or abandons them", and I, so not a lawyer, posited (without having any real idea what it would be) that there is probably a way to get such a ruling without the adminsitration simply reasserting the Bush argument, while giving al-Marri his proper venue of civilian court trial.

It turns out that actual lawyers also believe there may be a way. A SCOTUSblog post and a commenter at TalkLeft address the possibilities. From TL:

Al-Marri's lawyers can plausibly argue that a criminal prosecution does not make his claim moot; after all, he was facing criminal charges several years ago, when the government just walked into court one day, dropped those charges, and "disappeared" him into the military brig based on W's unilateral declaration that he was an "unlawful enemy combatant."

The Court could agree that the risk of repetition keeps the case from being moot, or they could defer ruling on the [government's] dismissal motion until after the government files its brief -- thus forcing the Administration to take a position on the Bush claim of Presidential power.

[Jesurgislac]

Nell, I think Obama's condoning torture and extra-judicial imprisonment is "politically wise" in much the same way as pardoning Nixon or not investigating George H. W. Bush's involvement with the Iran-contra scandal was "politically wise" - in both cases, it saved the incoming President a messy prosecution which would easily be presented as "partisan witchhunting" and the embarrassment of being the first US President in history to preside over the prosecution and jailing of his predecessor. But, in both cases, the crimes involved were over and done with, and in Nixon's case, weren't on the same scale as either Bush's crimes. Long-term, these decisions were not politically wise: the suspects who escaped prosecution got the message that they would get away with anything, so long as they did it in the name of a Republican Executive.

The crimes that Obama has decided he'll condone rather than prosecute are ongoing. For him to decide that he'll just let them pass is about as far from politically wise as he can get. Not only does he have the past history to let him know that the wrong message is being transmitted to the criminals, but he is himself becoming more criminally liable with every week that passes.

I appreciate you didn't mean to defend his decision; but honest to god, while I didn't like Obama's course back in November when it first became apparent, and like it still less now the human cost of his course is beginning to come clear, it is also - if you think of more than the next few months - monumentally unwise in all possible respects.

[Nell]

@J. Michael Neal:

Neither the ACLU nor I are reflexive Obama-bashers. We both want two things: for al-Marri to be given due process and returned to the civilian criminal system where his case belong, and for the Supreme Court to issue some kind of ruling that supersedes the ominous, Damocles-sword effect of the Fourth Circuit's ruling in the Padilla case, so that there is no basis for the current or any future president to believe that s/he has the power to order a legal resident or a U.S. citizen to be held indefinitely in a military prison.

Early on in the discussion I expressed a belief (given my grasp of legal process involved, really more of a hope) that both of these desirable outcomes are possible without the Obama administration having to make the same sweeping assertions that the Bush DoJ did.

At SCOTUSblog (link above) I found some more concrete basis for that hope, in the scenarios laid out by a lawyer about how and when oral arguments might be called for.

I have never claimed that I wished the Obama administration had simply maintained the Bush arguments and left al-Marri in the brig until the Supreme Court ruled. I explicitly said that I welcomed the move to civilian court.

In that context, if the Obama DoJ were now to be called on by the Supreme Court to make oral arguments on the issue of its power to hold persons in the U.S. as "enemy combatants" that asserted such a power, I'd be considerably more 'of two minds' than in the case of their broad, abusive assertion of state secrets privilege to seek the dismissal of Mohamed v. Jeppesen Dataplan.

The difference in my attitude would be caused by several facts in addition to the good-faith signal sent by the return to criminal prosecution: 1 - The history of the relevant courts' decisions makes a defeat for the government position more likely in the case of arbitrary indefinite detention case than in the assertion of state secrets privilege. 2 - The government arguments would be much more 'compelled' in the SC case than in Mohamed v Jeppesen, where there were many more options: a request for extension, or a narrower and more appropriate assertion of state secrets privilege. 3 - The Obama campaign explicitly promised to end the abuse of state secrets privilege to get cases dismissed; it made no such promises about the kinds of arguments it would make before the Supreme Court when pressed on the issue of limits on executive power.

The administration, understandably, wishes to avoid making such arguments before the Supreme Court. If the SC accepts the dismissal of al-Marri's petition, then it's win/win for the Obama admin: They're seen clearly choosing the rule of law for terrorism cases, yet they retain the theoretical power to detain another U.S. person in future. If the SC forces them to articulate their understanding of how broad they see their detention powers as being, then they're forced to choose between making broad arguments of the Bushian kind but that might bring on a ruling that would restore the limits on their and any future executive's powers, and making more limited claims that look and sound better but have the effect of "tying their own hands".

If further arguments are required, either way, we'd be more likely to come out of the Supreme Court process with restoration of the limits on a president's detention powers than if the SC simply accepted the dismissal of the case.

You accuse me of being intellectually dishonest and being motivated (along with the ACLU) by a desire to condemn the Obama administration whatever it does. I am honestly motivated by the desire to have the country move out of the 'state of exception' created by the Supreme Court's refusal to vacate the Fourth Circuit's ruling in Padilla. The existence of that ruling is not the Obama administration's fault. The unpleasant choices they face in the al-Marri case, with the possibility of more to come (if the SC doesn't simply accept the dismissal), are not of their own making.

It's been a very unpleasant 24 hours for me on ObWi, simultaneously insulted by you as an intellectually dishonest "Obama's just like Bush" basher and by Jesurgislac as someone who condones and even supports the continuation of torture, inhumane treatment, and prolonged illegal imprisonment under Obama.

Decades ago, an adviser said to me in the middle of similar unpleasantness in an organization I worked for: "When this many good people are tearing each other apart, the problem is structural."

The structural problem in this case has been decades in the making. The growth and development of an imperial foreign policy and the accompanying ever-more-powerful executive branch, the decay in Congressional willingness to exercise oversight and accountability, the exploitation by both previous administrations of serious violent crimes to expand executive powers and secrecy, and the intersection of electoral politics with all this -- there's lots of room for disagreement here even if everyone is doing his or her best to argue in good faith.

[Nell]

Jes, I need just a bit more from you than "I appreciate you didn't mean to defend his decision"

The decision in question is Obama's decision to retain Gates as Secretary of Defense, to (my words) "opt for continuity rather than a clean sweep at DoD".

You leapt from my characterization of that decision as "might be politically wise", a side comment to my describing its negative consequences for public understanding of the prisoner morass, to saying this about my reaction to continued torture and kidnaping/imprisonment:

Jes: No worries that there will be any outcry from the US public - given even [X} or Nell, etc, thinks this is the right thing to do...

Maybe it's the result of being attacked from two directions, but I am not willing to let this go: Please acknowledge that you wildly mischaracterized my views. If you can't even admit that, then I am not going to feel it's worth the effort to engage you in discussion here from this point forward.

I'm not asking for an apology, simply some accountability on your part.

[J. Michael Neal]

I'd be considerably more 'of two minds' than in the case of their broad, abusive assertion of state secrets privilege to seek the dismissal of Mohamed v. Jeppesen Dataplan.

I'm sorry, but I simply don't believe you. Had this come up originally, and had the Obama administration chosen to let the Bush arguments stand, I am convinced that you would have jumped on them every bit as hard as you did in the other case. There is nothing about the way either you or Jes has approached this issue that admits any nuance. Anything less than absolute and immediate action to do exactly what you think is right, with no deviation, produces nothing but an angry dismissal. If you wanted people to believe that you would have done anything differently, you would have needed to show some inclination to complex thinking. I have seen no such indication from you.

Honestly, I thought it was amusing to see Jes attack you falsely, because the two of you deserve each other. She did to you exactly what you do to others, so I'm short on sympathy.

[Gary Farber]

"But, in both cases, the crimes involved were over and done with, and in Nixon's case, weren't on the same scale as either Bush's crimes."

Really? It's hardly difficult to argue that, on top of his domestic crimes, which go beyond those known to have been engendered by G. W. Bush, Richard Nixon had us in an illegal war, and committeed an illegal invasion and bombing of Cambodia and Laos. How is this on a lesser scale than the crimes of G. W. Bush?

[Gary Farber]

"But, in both cases, the crimes involved were over and done with, and in Nixon's case, weren't on the same scale as either Bush's crimes."

Really? It's hardly difficult to argue that, on top of his domestic crimes, which go beyond those known to have been engendered by G. W. Bush, Richard Nixon had us in an illegal war, and committeed an illegal invasion and bombing of Cambodia and Laos. How is this on a lesser scale than the crimes of G. W. Bush?

"She did to you exactly what you do to others, so I'm short on sympathy."

It's my observation that occasionally Nell flies off the handle a bit, but that comparing her overall style and responses to Jesurgislac's is not a fair characterization.

[Nell]

J. Michael Neal: There is nothing about the way either you or Jes has approached this issue that admits any nuance. Anything less than absolute and immediate action to do exactly what you think is right, with no deviation, produces nothing but an angry dismissal. If you wanted people to believe that you would have done anything differently, you would have needed to show some inclination to complex thinking. I have seen no such indication from you.

In this thread, I've been completely sincere. I haven't been trying to win an argument at all costs, but to express my actual thinking on this and related issues.

I have a hard time reading my last comment and interpreting it as lacking nuance or appreciation for complexity, or as an angry dismissal of the Obama administration for not doing exactly what I think is right, with no deviation.

You're the one who sounds angry, much angrier than I am, and you have had that tone since the beginning of the thread.

It hurts quite a bit to have someone do the functional equivalent in a comment section of looking me in the eye and calling me a liar.

I have to hope that most commenters here who "know" don't share your view that I have no inclination to complex thinking. But I also have to be open to the possibility that I must have set you off somewhere with an angry, dismissive comment in which I attack someone (you?) and falsely characterize their views. I can't say I've never done that, but in the only instances I can bring to mind here I've admitted I was wrong and apologized for so doing. If there's an example of such an offending comment in this thread, or elsewhere, I'd appreciate your pointing it out to me.

[Jesurgislac]

J. Michael Neal: There is nothing about the way either you or Jes has approached this issue that admits any nuance. Anything less than absolute and immediate action to do exactly what you think is right, with no deviation, produces nothing but an angry dismissal.

That's certainly a fair assessment of my reaction to the issue of the US torturing prisoners/holding people in extra-judicial imprisonment. I really don't have any "nuance" about this, and yes, yes, yes it makes me extremely angry. I'm an angry person about this. I'm not seeing any nuance. I just want Obama to stop the torture and make a firm committment to ending the extra-judicial imprisonment. When he doesn't, yeah, I get mad: when I see other people defending his "nuance" on this subject, yes: I react with angry dismissal.

But I don't think that's a fair assessment of Nell....

[Nell]

Updating with this development via SCOTUSblog:

The Obama Administration told the Supreme Court Wednesday that it is not trying to keep on the books a sweeping lower court ruling upholding presidential detention power inside the U.S. It is willing, it said in a reply brief renewing its plea for dismissal of Al-Marri v. Spagone (08-368), to have that decision wiped out.

“The government’s agreement here that vacatur of the decision below [the Fourth Circuit Padilla ruling] would be appropriate conclusively demonstrates that the government is not attempting to preserve its victory while evading review,” the brief said.

Huzzah. The apparent fulfilment of my hope that there is a possibility of SC action to wipe out the ugly Padilla ruling that does not involve the Obama administration taking the Bush administration line on detention powers.

On the other hand:

Al-Marri’s lawyers have indicated that he would only go along with dismissal if the government gave firm assurances that Al-Marri would never be returned to military custody, and that the Administration is renouncing the detention authority that led to his capture. The government’s reply brief, like its initial motion to dismiss, did not give such assurances, even though the latest filing appeared to lean a bit more in that direction.

In a comment section elsewhere, a discussion by (non-ACLU) lawyers following the case seemed to imply that the government reserves the right to return al-Marri to the brig if he were to be found not guilty of the recent charges. Not having read the filings myself, I can't document that that's not true, but find it difficult to believe. Am seeking clarification.

[The cartoon figure of wrath JMN sees wouldn't need any further information, and would be gnashing her teeth at this outrageous claim by the Obama administration.]

The SC will address the motion to dismiss at their conference tomorrow, so we'll know more by the end of Monday, if not before.