Posted on Tue, Jan. 20, 2009

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Where will Obama land on due process?

The hash that the Bush administration has made of the fundamental right of due process has landed unappetizingly on the Obama administration's table.

The new president must decide within a month what to do about Ali al-Marri and, by extension, whether to disavow President George W. Bush's assertion that a president can hold anyone in jail indefinitely, without charge, simply by declaring that person an enemy combatant.

That reprehensible claim has already been shot down by the U.S. Supreme Court as it applies to U.S. citizens, but Marri's case is slightly different, as he is a Qatari citizen who was legally in the country as a Bradley University student.

The factual difference is important at two levels: Does the right of due process apply to anyone in this country legally, whether citizen or not? And is due process simply a right that the people may invoke or does the government have a duty to ensure that it occurs?

In 2004, the Supreme Court declared, in what amounted to a rare 8-1 decision, that Bush could not toss U.S. citizens into indefinite detention without due process. The court was divided into three camps on the question of how the case of Yaser Hamdi should have been handled, but its underlying denial of Bush's claim of omnipotence was resounding. Only Justice Clarence Thomas supported the administration's position.

Marri was arrested in late 2001, charged with credit card fraud, identity theft and, later, lying to prosecutors. But in early 2003, Bush, based on intelligence reports that Marri was an al-Qaida sleeper agent, declared him an enemy combatant and transferred him to military detention. And that's when the administration's ill-conceived and hastily executed notions about due process thoroughly muddied the water.

The claim that Marri was a sleeper agent was based on information from the alleged chief architect of the Sept. 11 attacks, Khalid Sheikh Mohammad, who was waterboarded, meaning that testimony might not be admissible. Also, for Marri to be transferred, the initial criminal charges had to be dismissed, and the government agreed to do that with prejudice, meaning those charges cannot be refiled.

Thus the quandary for the Obama administration, which faces three unpalatable options: Let Marri go and risk that he is indeed a danger to security, support the Bush enemy-combatant doctrine, or try to hold Marri under immigration law.

The third option raises horrendous questions, because if Marri can be held without any showing of a crime, so can any of the millions of people who are in this country legally but are citizens of another country.

If such people are not entitled to due process within our court system, a great hole is ripped in the fabric of freedom and the idea of America as a place of evenhanded justice is abandoned.

And if, as many believe, due process is not simply a right that people can invoke but also a duty of the government, the Obama administration cannot take a pass but must ensure that it is available to everyone.

When the Supreme Court takes up the Marri case, Obama must declare where he stands. He's on record as rejecting the Bush doctrine, but that was in the abstract. Now it becomes concrete, with implications for all of us.

Davis Merritt is a former editor of The Eagle. Reach him at dmerritt9@cox.net.

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