The Great Obama Debate Soon To Come To An End

One of the better side effects of Obama's inauguration is that we can finally stop the endless theoretical arguments in the blogosphere about how he means to govern. Whether he's a cautious centrist who will fulfill his campaign promises in incremental ways and do little to challenge Beltway assumptions, or he's a secret progressive who has been hiding his true intentions and employing scores of cabinet members from the political center to give himself breathing space to implement sweeping progressive policies, we'll know soon enough and the exhausting parlor game of pondering will be over. One early test will come in the case of Ali al-Marri, where an Obama Administration will have to provide an opinion on where they stand on key Constitutional issues such as the rule of law, executive power and detainee policy in the "war on terror."

Just a month after President-elect Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration — that the president may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.

The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. Obama’s supporters, many of whom are looking to him for stark disavowals of the Bush administration’s legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the American mainland or at Guantánamo Bay, Cuba.

During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.

It's almost unquestionable that al-Marri cannot have a fair trial in US courts without acquittal, as a substantial portion of the evidence against him is likely to have been acquired through the use of torture. Bush's intel officials consider al-Marri dangerous and unable to deport. And yet the legal claims made by the Bush team, that the executive has the right to indefinitely detain an American citizen (and in established practice, a legal resident of the United States has the same right to due process), without charges, and hold them inside the United States as long as they wish, is abhorrent and must be disavowed. Obama has already disavowed this during the campaign.

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.”

That sounds vigorous and categorical. But applying this view to Mr. Marri’s case is not that simple. Although he was in the United States legally, he was not an American citizen. In addition, a 2001 Congressional authorization to use military force arguably gave the president the authority that Mr. Obama has said is not conferred by the Constitution alone.

Still, Andrew C. McCarthy, a former federal prosecutor who has generally supported the Bush administration’s approach to fighting terrorism, said Mr. Obama’s hands are tied. He cannot, Mr. McCarthy said, continue to maintain that Mr. Marri’s detention is lawful.

“I don’t think politically for him that’s a viable option,” Mr. McCarthy said. “Legally, it’s perfectly viable.”

Big thanks to Mr. McCarthy for setting the boundaries of what is politically viable for a new President.

Anonymous Liberal has a very good post laying out the options for the Obama Administration:

I do expect that the Obama administration will make some concessions, though. The most likely, it seems to me, is a concession that the basis for originally detaining al-Marri was improper. Remember, al-Marri was already in federal custody and facing trial on criminal charges when the Bush administration transferred him to military custody. There's little question that this move was made for interrogation purposes. The government had been trying to pressure al-Marri into talking, but he was intent on going to trial. So instead they transferred him to military custody and held him incommunicado for 18 months in order to extract information from him (probably by unlawful techniques).

Even if you assume that the President, pursuant to the AUMF, has the authority to military detain al Qaeda "combatants" found legally residing within the U.S., the justification for such detention has to be limited to incapacitation, to preventing the combatant from returning to the "battlefield" and doing more harm. That's the purpose of detention under the laws of war. In this case, al-Marri was already in custody on a criminal matter. He was incapacitated and there was no chance of him "returning to the battlefield." Under those circumstances, transferring him to military custody is not justified, even if you accept all of the government's premises.

This a real test for the Obama administration. If they don't back off at least some of the positions taken by the Bush administration in this case, it will leave a lot of people (myself very much included) very disappointed and angry.

We have a group in power currently that has no problem reconciling the dissonance between prosecuting foreigners for torture while allowing those inside the government who directed and authorized the same to go free. This is what has diminished America's standing in the world and strained relations with allies. If the Obama Administration continues operating under this double standard, insisting that other countries respect human rights and international agreements while declining to do the same, he will find it impossible to convince the world that anything resembling change has come to America, as well as most of us in this country as well. The future of the rule of law, badly crippled through eight years, is at stake.

And within a month, there won't need to be any more debate about it - the first filing in the case is due the Monday after Inauguration Day.