Domestic Military Detention Isn’t Necessary
I make the case that domestic military detention for all terrorism suspects isn’t necessary in this piece over at the Huffington Post. Legislative proposals by Rep. Buck McKeon (R-CA) and Sen. John McCain (R-AZ) would mandate military detention instead of criminal prosecution for all those suspected of international terrorism. I oppose this policy change for reasons both principled and practical:
If the civil rule of law handles terrorist threats adequately, then invoking military jurisdiction is a counterproductive overreaction.
That was the case with one of the handful of domestically detained enemy combatants, Ali al-Marri. Al-Marri was an honest-to-goodness Al Qaeda sleeper agent masquerading as an exchange student. The FBI indicted him on charges that could have carried a 115-year maximum sentence. The government requested that the judge dismiss its charges with prejudice, meaning that they could not be levied again, and moved him to a naval brig.
The Supreme Court ultimately agreed to hear al-Marri’s case, but the government mooted the case when it removed al-Marri from military custody and charged him with material support of terrorism. Al-Marri pleaded guilty and received a sentence of eight years and four months.
Al-Marri’s case was a missed opportunity. The government should have put him away for life.
This isn’t the first time McKeon and McCain have proposed treating all terrorism suspects like al-Marri and Jose Padilla. I criticized a similar proposal a year ago, as did Ben Wittes of the Brookings Institution. Wittes’ criticisms of this year’s bad ideas are here and here. Given the excellent track record of federal courts in prosecuting terrorism cases and the recent death of bin Laden, now is not the time to roll back the civil rule of law.
The Case against Domestic Military Detention
Washington is consumed once more with the problem of terrorism, driven by the dual pressures of an unsuccessful terrorist attack on commercial aviation and upcoming elections that give politicians an incentive to speak in terms of war. We are again treated to the ridiculous argument that a terrorist attack is either an act of war or a criminal violation but never both. Senators McCain and Lieberman recently proposed a bill that mandates military detention for domestic terror suspects instead of civilian criminal justice proceedings — an approach that sidelines half of our domestic counterterrorism tools.
The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected terrorists. Choosing military detention over prosecution takes criminal justice tools off the table, including prosecuting terrorists for the instrumentalities of terrorism — assembling bombs, financing, and all of the illegal activities associated with attacking the system.
We’ve been down this road before, and domestic military detention in lieu of criminal prosecution has not worked as advertised.
Al-Marri Pleads Guilty
Ali Saleh Kahlah al-Marri pleaded guilty to conspiring with al Qaeda leaders to commit acts of terrorism yesterday. He could be sentenced up to 15 years in prison, though he has spent nearly half that awaiting trial and may get credit for the time already served.
Al-Marri was an exchange student who arrived in the United States on September 10th, 2001 as an al Qaeda sleeper agent. Read the government’s declaration of facts used to detain him. This is the stuff of movies; the FBI took a dangerous man off the streets when it arrested him.
Unfortunately, the government took him out of the criminal justice system and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed in the future). He became a domestically detained enemy combatant and the test case for future domestic military detentions. Just as attorneys seek sympathetic plaintiffs to overturn unjust laws, the government can find unsympathetic defendants to justify overbroad claims of power. Al-Marri is about as unsympathetic as you can get.
The real tragedy is that al-Marri will serve a relatively short sentence. Had the government prosecuted him on the seven charges alleged the first time around, he would have been put away for decades. Related posts here, here, here, and here.
Monday Podcast: ‘Challenging Domestic Military Detentions’
Ali Saleh Kahlah al-Marri, the exchange student from Qatar who was detained by the FBI with alleged ties to al-Qaeda, sat for years in a military brig in South Carolina as the only domestically detained enemy combatant.
The Bush Administration used al-Marri to test a legal theory aimed at keeping suspected terrorists in military prisons indefinitely.
President Obama has reversed that ruling, and has moved al-Marri into civilian courts. The Supreme Court is no longer hearing al-Marri’s appeal.
In Monday’s Cato Daily Podcast, Legal Policy Analyst David Rittgers says that there’s nothing that will stop future administrations from again reversing the policy.
This is creating this legal cul-de-sac where we can have military detention domestically…and the reason that they picked Al-Marri is, just as you would pick a sympathetic plaintiff to sue to overturn a law, if you want to keep a law…you would look for an unsympathetic defendant, and Al-Marri is as unsympathetic as you can get.
…He is the test case to keep this policy open.
The Cato Institute co-authored an amicus brief (PDF) at the Supreme Court supporting al-Marri’s challenge to the military detention.
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