Thursday, February 19, 2009

Jane Mayer's "The Hard Cases"

Jane Mayer of the New Yorker takes a hard look at a "hard case", Ali Saleh Kahlah al-Marri, who has been held in indefinite detention at the naval brig in Charleston, South Carolina, since 2003. There's too much worth excerpting to do a cut-and-paste of her article, so I recommend reading it in full. But it's easy to arrive at some central conclusions. First, al-Marri, who's case goes before the Supreme Court in April, is probably the most critical first test of what will be the Obama administration's approach to detention of terrorist suspects. Second, the Obama administration is certainly looking beyond the Bush administration's narrow approach, but has not entirely backed away from the idea that some terrorist suspects can be held indefinitely. Instead, they are at least considering the idea of a national security court that can order "preventive detention" for suspects with whom they might have difficulty obtaining convictions at trial. Third, the Bush administration shot itself in the foot, removing al-Marri from the criminal justice system where his trial was impending, and thus losing the flexibility to charge him at a later point with the same crimes so as to test their legal theory on indefinite detention. As we know, they lost that gamble, as the Supreme Court has repeatedly limited the executive's authority to hold detainees without justification. And once again, the Bush administration's punitive approach to detention is highlighted, as Mayer details increasingly severe treatment al-Marri was treated to for his unwillingness to confess to being a terrorist.

For what it's worth, I do not favor the creation of a national security court. I don't trust that such a body can hold the government accountable for potential government malfeasance (like hiding or destroying exculpatory evidence) because the bar is lowered for what the government must show to obtain a conviction (or an "order" of detention) and transparency is deliberately reduced. And I think it would be silly to stake the creation of a system on the al-Marri case, arguing that only a specialized court can handle a terrorist who was likely to be convicted and sentenced to years in prison by the normal criminal process. As we have learned over the last eight years, mere good intentions do not justify illegal conduct or war crimes, and administration officials cannot be excused because they were trying their best. It doesn't matter that the Obama administration is filled with critics of prior detention policies. If we give them the leeway to behave in a similar fashion, you can rest assured that someone will be sent to prison or detained for a long time who otherwise doesn't deserve to be there, and we will hear the same dire justifications for such treatment as we heard under Bush.

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