Al-Marri, The Last “Enemy Combatant” in America

Jane Mayer has a terrific article in the New Yorker this week on Ali Saleh Kahlah al-Marri, the last “enemy combatant” being detained in America. She touches upon important questions, such as the meaning of the term “enemy combatant”, the possibility of creating a new system of indefinite detention for terrorism suspects, and the ability of the U.S. federal courts to try terrorism cases. Human Rights First believes that U.S. courts are up to the challenge, and in fact our report was cited in an amicus brief in al-Marri’s case for demonstrating the success of federal prosecutions in difficult terrorism cases involving classified evidence. Tackling one of the issues in Mayer’s piece, HRF’s International Legal Director Gabor Rona has a post up at Jurist.com urging the Obama Administration to define “enemy combatant” consistent with traditional laws of war. The Bush Administration’s overly broad, elastic definition of “enemy combatant” was not:

In the laws of war, a combatant is an individual who is privileged to participate in hostilities and is therefore, always targetable and always detainable without criminal charge. Civilians who directly participate in hostilities without a legal privilege to do so may also be targeted and may also be detained without charge under applicable domestic law, but they do not thereby become “combatants.” They remain civilians… …In short, a combatant is a combatant and a civilian is a civilian and never the twain shall meet. To expand the class of persons designated by domestic law and practice as “combatants” beyond this long-understood limitation in international law is a recipe for confusion, at least, and disaster, at most. Conflating the distinction between civilians and combatants – the most fundamental principle in the laws of war – places both civilians and combatants at unwarranted risk and thus, undermines the single most significant purpose served by laws of war: the protection of the civilian population.

By declaring al-Marri an “enemy combatant” and locking him up in the brig in Charleston indefinitely, the Bush Administration missed a crucial opportunity to bring him to justice in U.S. courts long ago. Now the Obama Administration faces a number of challenges as it tries to move forward. One of Al-Marri’s attorneys, the ACLU’s Jonathan Hafetz says, “If President Obama is serious about restoring the rule of law in America, they can’t defend what’s been done to Marri. They would be completely buying into the Bush Administration’s war on terror.” In a dissenting opinion in the Supreme Court case Rumsfeld v. Padilla, Justice John Paul Stevens reminded us of what is at stake beyond the fate of al-Marri himself:

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure.… For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

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Published on February 19, 2009

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