Wednesday, November 22, 2006

Reno Joins Former Prosecutors Action to Combat Provisions of Military Commissions Act 2006

Former Prosecutors Urge Court to Act Against Indefinite Detention of Suspects
By Dan Eggen Washington Post Staff Writer, November 22, 2006

Former attorney general Janet Reno has taken the unusual step of openly criticizing the Bush administration's anti-terrorism strategy -- joining seven other former Justice Department officials in warning that the indefinite detention of U.S. terrorism suspects could become commonplace unless the courts intervene.
In a friend-of-the-court brief filed in the case of alleged enemy combatant Ali Saleh Kahlah al-Marri, the former prosecutors assert that criminal courts are well equipped to prosecute terrorism suspects while guaranteeing the constitutional rights of defendants arrested on U.S. soil.
Reno, reached at her Florida home yesterday, said she would let the brief "speak for itself. I've been following this, and it reflects my concerns about the detention and treatment of people who have been determined to be enemy combatants in a manner that is not clear how it is being done."
In their brief, Reno and the other former Justice Department officials said: "The government is essentially asserting the right to hold putative enemy combatants arrested in the United States indefinitely whenever it decides not to prosecute those people criminally -- perhaps because it would be too difficult to obtain a conviction, perhaps because a motion to suppress evidence would raise embarrassing facts about the government's conduct, or perhaps for other reasons."
The filing in the U.S. Court of Appeals for the 4th Circuit is a highly unusual move for Reno. She has generally maintained a low profile since leaving the helm of the Justice Department in 2001 and has said little publicly about the policies of her successors, John D. Ashcroft and Alberto R. Gonzales.
The brief is also notable because its signatories include two U.S. attorneys from the Reagan years -- W. Thomas Dillard and Anton R. Valukas -- in addition to prosecutors from the Clinton and Carter administrations and Philip A. Lacovara, a counsel to the Watergate special prosecutor.
"It carries more weight because these are high-ranking officials in several administrations from both parties," said Carl W. Tobias, a law professor at the University of Richmond. Marri, a Qatari national, has been held as an enemy combatant in a military prison in South Carolina since he was accused of being an al Qaeda "sleeper agent" sent to the United States to carry out attacks. Unlike the hundreds of detainees being held in Guantanamo Bay, Cuba, Marri was apprehended on U.S. soil, in Peoria, Ill., and is the only remaining enemy combatant held inside the United States.
The Justice Department argues that an anti-terrorism law, the Military Commissions Act of 2006, allows the government to detain any foreign national as an enemy combatant, regardless of where they were arrested. The administration wants to place Marri into its military trial system, but he is challenging the legality of his detention.
"While we respect the right of other legal minds to be heard on these issues, we believe we are on firm legal footing in this case as both the magistrate judge and district court concluded," Justice Department spokesman Brian Roehrkasse said yesterday.
Gonzales defended the administration's detention and surveillance policies in a weekend speech at the Air Force Academy, telling cadets that it is a "myth" that civil liberties have been hampered by anti-terrorism strategies.

Amicus Filing by Former Atty. General Janet Reno and Others (PDF)
Excerpts:
-The Criminal Justice System is well equipped to prosecute people accused of planning or committing terrorist acts.
-The Handling Of This Case By The Executive Branch Has Given Rise To The Appearance Of Manipulation Of The Judicial Process.
-The MCA purports to strip the courts of jurisdiction over habeas corpus cases filed by alleged alien enemy combatants. But the Constitution forbids subjecting civilians—which al-Marri unquestionably was when he was arrested in Peoria—to military jurisdiction without the availability of habeas corpus, when they have not been arrested on a battlefield and the civilian courts are "open and their process unobstructed." Ex parte Milligan, 71 U.S. 2, 121 (1866). See also id. at 127 ("Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction"); Reid v. Covert, 354 U.S. 1, 33 (1957) (Supreme Court precedent has "recognized and manifested the deeply rooted and ancient opposition in this country to the extension of military control over civilians") (plurality opinion); Duncan v. Kahanamoku, 327 U.S. 304, 324 (1946) (the declaration of "martial law" in Hawaii during World War II did not "authorize the supplanting of courts by military tribunals"). The federal courts, of course, have not been shut down; the Central District of Illinois, in fact, was on the verge of adjudicating al-Marri's guilt or innocence when the Executive Branch decided to take him out of the criminal justice system and whisk him off to a brig in South Carolina.
-The cases discussed above demonstrate that the existing criminal justice system is more than up to the task of prosecuting and bringing to justice those who plan or attempt terrorist acts within the United States—without sacrificing any of the rights and protections that have been the hallmarks of the American legal system for more than 200 years. The federal government is eminently capable of both protecting our nation's security and safeguarding our proud traditions of civil liberties. We would do well to remember Benjamin Franklin's admonition that "those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." Benjamin Franklin, AN HISTORICAL REVIEW OF THE CONSTITUTION AND GOVERNMENT OF PENNSYLVANIA, title page (1759) (Arno Press reprint 1972).

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