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Susan Estrich
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The Land Of The Free


Imagine you are living — legally, I should add — in a foreign country. Maybe you're a student, living with your family, studying at a local university. One day, you are charged with credit-card fraud and making false statements. But you never go to trial on those charges. Instead, you are held in a military prison for four years and allowed no outside contact, even with family or lawyers, for the first 16 months of detention. You are denied basic necessities, exposed to sensory deprivation, threatened with rape and sodomy. Still, no other charges are filed.

You are "designated" an enemy combatant, but there is no opportunity to challenge that designation. No tribunal, not even a military one, reviews the determination. It is enough that the country's leader says you are a danger. The "Justice" ministry supports him. When you finally find lawyers to challenge your detention, "Justice" department lawyers fight them every step of the way. And for two years, they win.

What kind of country would do that to a person? Ali al-Marri, a citizen of Qatar, has been held under precisely these circumstances for the last four years in a military prison in South Carolina.

Two years into his detention, lawyers from NYU's Brennan Center for Justice brought suit in federal court challenging the constitutionality of the government's actions. This week, a divided panel of the United States Court of Appeals for the Fourth Circuit upheld his challenge, ruling that the Bush administration could hold Mr. Marri as a material witness in connection with a grand jury investigation, deport him or charge him with a crime, but it could not simply turn him over to the military, lock him up and throw away the key.

Judge Diana Gribbon Motz, writing for the majority in the 2-1 decision, concluded, "To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them 'enemy combatants,' would have disastrous consequences for the Constitution — and the country. We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic."

The Justice Department is not buying it. In the wake of the decision, they announced they would continue to fight for the right to detain people indefinitely in military prisons solely on the formal say-so of the president.

They are seeking review "en banc" by the full panel of the Fourth Circuit, and if they are unsuccessful there, I have no doubt they will seek review by the United States Supreme Court. Mr. Marri, they declare, is a danger, even if no tribunal, court or military panel has had a chance to determine that.

It would be shocking — if this Justice Department had not already behaved in a shocking way so many times.

What makes this case particularly troubling is that Marri was no danger to anybody at the time he was placed in military custody. He was being held in a civilian prison, awaiting trial for the credit card and false statement charges. So why the transfer?

The answer suggested by Judge Motz was to allow the government to subject him to the kind of brutal interrogation that would not be allowed in any civilian prison, and should not be allowed in a military one under the 2004 United States Supreme Court decision in Hamdi v. Rumsfeld. Of course, the government isn't admitting this. Given its druthers, both the imprisonment and interrogation of Marri would be secret, subject to neither judicial review nor public scrutiny.

Last week, in a little-noticed motion in the Scooter Libby case, defense lawyers, who had submitted 150 letters in support of Mr. Libby, asked that the letters not be made public lest the writers be ridiculed in the blogosphere, as, of course, they were. Joe Klein, writing for Time, notes how mean and nasty liberal bloggers (and conservative ones, too) can be to those with whom they disagree. Believe me, I know. In rejecting the defense motion in the Libby case, however, Judge Reggie Walton emphasized the countervailing interest in the transparency of federal court proceedings, even if transparency sometimes has its costs.

The same rules that apply to the defense should apply to the prosecution. This administration, in case after case, has made clear its preference for secrecy in the name of security. It fights transparency, as applied to its own actions. It fights against openness, review, standards and scrutiny. The rule of law cannot survive a blanket of secrecy. There has never been a greater need for the kind of transparency Judge Walton insisted upon, not only in trials, but also in the actions of the Justice Department and the military. It should not be a secret to our enemies that we are a country that respects the rule of law, and that is unafraid to abide by it in public.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



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