please do read Glen Greenwald today..
http://www.salon.com/opinion/greenwald/2009/03/07/al_ma... Glenn Greenwald
Saturday March 7, 2009 08:08 EST
Preventing a judicial ruling on the power to imprison without charges
But there were numerous steps the Obama administration could have and should have taken to prevent a repeat of the Padilla travesty, including: (a) explicitly renouncing the Bush administration's view that the President possesses this radical power (the super-transparent Obama DOJ refuses to comment on its view in that regard even though Candidate Obama explicitly rejected a similar theory -- see Questions 5 and 10); and (b) urging the Supreme Court to resolve the question notwithstanding Al-Marri's indictment, as Al-Marri's lawyers requested, on the ground that it meets one of the judicially established exceptions to the "mootness" doctrine. The Obama administration did neither: instead, it explicitly refused to renounce this power while simultaneously ensuring that the Supreme Court would -- once again -- refrain from ruling on its constitutionality:
While the government did not defend its power to detain Mr. Marri at present, it left open the possibility that he or others might be subject to military detention as enemy combatants in the future. “Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure,” the Justice Department told the court in a brief filed Wednesday.
This action means not only that Obama could imprison legal residents or even American citizens as "enemy combatants," but could even re-declare Al-Marri himself to be an "enemy combatant" if he's acquitted in his trial.
It's disturbing that this question remains unresolved particularly given that key Obama appointees -- including Solicitor General Elena Kagan and White House Counsel Gregory Craig -- have openly suggested that, at least with regard to foreign nationals, the "War on Terror" paradigm empowers the President to view the world as a "battlefield" and thus imprison people without charges as "enemy combatants." This action by the Obama administration should also (at least in a rational world) put to rest the painfully sycophantic claim that the only reason the Obama DOJ is embracing radical Bush-era legal positions is because they secretly hope to lose in court and thereby create good judicial precedent. If that were really their secret, noble goal, then they would have urged the U.S. Supreme Court here to rule on Al-Marri's claims (which many legal observers expected would end in Al-Marri's favor) -- not urged the Court to refrain from ruling, thus shielding this asserted power from ultimate judicial scrutiny.
There's no reason to assume that the Obama administration intends to exercise the power to imprison legal residents or U.S. citizens without charges, as the Bush administration did. Unless and until they do that, they haven't done it. And with Al-Marri's indictment, there are now no U.S. citizens or legal residents being held as "enemy combatants," so that's an important step.