As usual, the ACLU misreads the Constitution, and sides with those who would attack America and murder Americans, instead of following the Constitution and protecting Americans and America. The latest example is the ACLU promotion of the interests of an Al Qaeda representative in the US.
The facts for this article, but not all of the legal conclusions, come from an article in the Los Angeles Times on 5 December, 2008. It concerns an apparent representative of Al Qaeda in the US, who is an alien, but a legal resident in the US. On 5 December, the Supreme Court agreed to hear his case.
The ACLU is heavily involved in the case, since it represents the individual in question, Ali Saleh Kahlah Marri. The ACLU, and the Times article, both pose the question as whether the President of the United States can “order the military to arrest and hold a civilian based on suspected terrorist ties.”
The article says that President Bush did this by defining Marri as an “enemy combatant.” This is the first of many errors in the article. The correct phrase is “illegal enemy combatant.” The Geneva Conventions, like the Hague Conventions before them, defined illegal combatants as those who were not in organized units, did not wear uniforms, did not carry weapons openly, and hid among the civilian populations.
Illegal enemy combatants were excluded from the protections of those Conventions, and under the Law of War could be summarily tried before military tribunals, and executed. Witness the trials and executions of the American Colonel Nathan Hale by the British, and of the British Major John Andre by the Americans.
This is not a trivial distinction. An “enemy combatant” is an ordinary soldier in the enemys army. When captured, they are held for the duration, and released when the war is over. None are charged with crimes (excepting war crimes). None are entitled to lawyers, nor subject to civil or criminal trials, like the captured German soldiers held in Arkansas during WW II.
The overwhelming error in the article, and in the ACLU position, is the failure to recognize the Quirin case from 1942. In it, a unanimous Supreme
Court ruled that it was proper, under the Law of War, for the US to arrest, try by military tribunal, and if convicted, to execute, illegal enemy combatants. Eight German saboteurs entered the US in civilian clothes with money, maps, and plans to blow up various war-related facilities.
All eight were tried and convicted in military tribunals. Six were sentenced to death. One was apparently an American citizen, born in Chicago. The Court unanimously held that their trials and convictions were proper. That under the Law of War, they were not entitled to the protections of the Bill of Rights, nor trial in courts under Article III of the Constitution.
As recently as the Hamdan case a few years ago, the Court still recognizes the Quirin case as good law. And, so it should. The nation is at war, and the Constitution is not a suicide pact. The Court cannot rule in favor of Marri, unless it is willing to reverse the Quirin case from WW II.
Apparently, Marri was operating in the US with information on cyanide and other poisons, and was in the pay of Al Qaeda. It is nearly impossible to draw a factual distinction between hin and the German saboteurs who were tried and executed under the Quirin decision. Based on the facts in this article, Marri can and should be treated as an illegal enemy combatant.
The reporter, and other reporters and editors around the country who prepare stories on the Marri case in the Supreme Court may be ignorant of the Quirin case from WW II. But any competent lawyer, if they consulted one, could fill them in. And it provides an entirely different understanding than writing the story from an ACLU press release, as the Times writer apparently did.
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