Putting the power back

With the case of Ali al-Marri, there's renewed hope that the rule of law will be restored

CHAPEL HILL -- Like many constitutional lawyers, I was heartened that the U.S. Supreme Court has agreed to review the case of Ali al-Marri.

A citizen of Qatar, al-Marri lawfully entered the United States in 2001, with his wife and five children, to pursue a master's degree at Bradley University. A few months later, FBI agents arrested him in Peoria, Ill. Al-Marri was charged in the Southern District of New York with unauthorized and fraudulent possession of credit cards.

Shortly before al-Marri's trial, however, President Bush declared him to be an "enemy combatant," removed him from the justice system and confined him to a Navy brig in Charleston, S.C.

There he has remained for over five years. Often in isolation, subject to brutal interrogation techniques, without notice, without charges, without a jury, without the right to confront his accusers, without trial, without the protections of the Constitution and, seemingly, without end -- solely on the say-so of the president of the United States.

Judge Diana Motz of the Fourth Circuit Court of Appeals in Richmond ruled, in 2007, that "to sanction such presidential authority ... to seize and detain civilians ... would have disastrous consequences for the Constitution and the country." Accordingly, she "refused to recognize a claim to power that would so alter the ... foundations of our Republic."

The full Fourth Circuit court, however, reversed her panel's decision in a split ruling last summer -- a ruling that the court made clear would apply to citizens as well as to resident aliens. Earlier this month the U.S. Supreme Court agreed to take the case to determine whether the "Constitution allows the seizure and indefinite military detention of a person lawfully residing in the US without criminal charge or trial" -- based on the government's assertion that he is a terrorist.

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IN ONE SENSE, IT IS SURPRISING THAT THE JUSTICES AGREED TO INTERVENE NOW, since further proceedings are under way in district court in South Carolina and the Bush administration strongly urged the court to stay its hand. But I'm guessing that at least five members of our highest tribunal have determined to have the last word in a defining, dangerous and frustrating conversation with the Bush administration over unchecked, unaccountable and unconstitutional exercises of executive power.

Four times in the past four years, the Supreme Court has thwarted moves by the administration and its congressional allies to limit or abolish judicial review of executive branch detention authority. The court has acted like the moderate institution it is. Neither attempting to embarrass or fully confront the president, the justices have, nonetheless, insisted upon at least the rudiments of due process of law and the American traditions of habeas corpus.

As Reagan-appointee Justice Anthony Kennedy put it last summer: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times ... liberty and security can be reconciled ... within the framework of law."

The president and his charges have, just as consistently, failed to get the point -- or, at least, to comply with it. The justices, unsurprisingly, seem to have grown impatient. Al-Marri may well be a bad sort. But dealing with him hardly requires that the president of the United States be allowed to sweep up folks off the streets of Illinois and convert them into an American version of "the disappeared."

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AND, OF COURSE, NOW AN ADDITIONAL CONVERSATION ON CONSTITUTIONAL ACCOUNTABILITY IS RIPE AS WELL. The al-Marri case will likely be heard in March. The government's response to his claims before the high court will not be due until we have a new administration.

An Obama Justice Department could, one supposes, embrace the extravagant and extralegal authorities demanded by its predecessor -- a position soundly at odds with the former candidate's consistent declarations. Or, the new administration could perhaps short-circuit the Supreme Court determination by deporting al-Marri to Qatar, or returning his case to the federal criminal justice system where it began.

I will concede that there are potent reasons to hope that the Supreme Court case proceeds to full decision. The Fourth Circuit's ruling constitutes an intolerable reading of the rules of American liberty. It begs for swift and final interment.

But it may be even more important for President Obama to demonstrate, by reversing the government's position in January, that our dark night of anti-constitutionalism is at an end.

There is, literally, a new sheriff in town. One who believes in the rule of law and who understands what that means. One who recognizes that you don't defend a system of civil liberty by throwing it on the ash heap. One who realizes that unlimited, unexamined, unconstrained and unaccountable executive power cannot be squared with our bold experiment in freedom.

(Gene Nichol is a professor of law at UNC-Chapel Hill. He is a former president of the College of William & Mary.)