Undoing the Mess

Everyone has their favorite priorities for the new Congress. A recent story in the Financial Times, however, reminded us that one of the highest of these priorities involves cleaning up the mess made by the preceding Congress, particularly in its complicity with some of the more questionable, if not egregious, actions from the White House. Now that he is in charge of the Senate Judiciary Committee, Patrick Leahy has spoken quite directly about which mess is in most need of cleaning:

“The great writ of habeas corpus was done horrible damage by the Congress in a law the president signed last year,” Sen Leahy told Alberto Gonzales, the US attorney-general last week.

Let us hope that Senator Leahy can set about his cleaning "with all deliberate speed," particularly in the interest in those who have become "victims of the mess." The Financial Times story focuses on one of these victims:

The battle to define presidential powers in the “war on terror” came under renewed scrutiny on Thursday when a foreign prisoner held in the US on suspicion of being an al-Qaeda “sleeper agent” asked a court to declare his detention unconstitutional.

Ali Saleh Kahlah al-Marri, a Qatari citizen studying computer science in the US, was arrested in Illinois in late 2001 in connection with the investigation into the September 11 attacks. He was slated for a criminal trial in 2003 on charges including credit card fraud.

Just weeks before the trial, however, President George W. Bush classified Mr Marri as an unlawful “enemy combatant” in the “war on terror”. He was removed from the criminal justice system and transferred to a prison in South Carolina, where he has remained without direct access to his family. The administration has designated hundreds of detainees at Guantánamo Bay as “enemy combatants”.

But lawyers for Mr Marri argued in a federal appeals court in Virginia on Thursday that Mr Bush did not have the authority to declare legal US residents as enemy combatants. “The president cannot militarise the case of a man in Peoria [Illinois] with the stroke of a pen,” said Jonathan Hafetz, a New York University lawyer representing Mr Marri.

The Justice Department argued that Congress gave Mr Bush the authority to declare Mr Marri an enemy combatant when it gave him the ability to use force to prosecute the “war on terror” after September 11.

Notwithstanding the Constitutional constraints against ex post facto legislation, restoring the legitimacy of habeas corpus would be an excellent first step in the cleaning-up process. (This could be followed by a second step of legislation that declares that any individual who has been "disappeared" under the category of "enemy combatant" is still entitled to the process of jurisprudence, preferably not in the setting of a military tribunal.) Those of us who read the foreign press (at least some of which is free of White House bullying) know that the habeas corpus suspension was a "shot heard round the world," a blatant announcement that the United States could no longer offer itself to the rest of the world as a model of good government (regardless of whether or not it ever could in the past). Both Leahy and Arlen Specter, his Republican counterpart, seem to recognize this. Now that Congress has recovered its backbone, let us hope they can start recovering the backbone of our justice system!