Editorial -- A test case for another Bush administration overreach

Friday, December 12, 2008

THE QUESTION at one point would have seemed ridiculous: Can the president detain indefinitely, without charge or trial, a person who was captured on U.S. soil and is in the country legally? The Bush administration's answer -- a firm yes -- is the latest excess in its conduct of the war on terrorism to trigger the scrutiny and, we hope, the displeasure of the Supreme Court.

The issue arose in the case of Ali Saleh Kahlah al-Marri, a Qatari citizen held in a South Carolina military brig since 2003. The justices voted last week to take up the case.

Mr. Marri arrived legally in the United States on Sept. 10, 2001. In December of that year, he was arrested on credit card and identification fraud allegations and charged in federal court. The Bush administration later dropped the charges and transferred Mr. Marri to military custody after designating him an enemy combatant. The government alleged that Mr. Marri had trained in an al-Qaeda camp, met with Osama bin Laden and Sept. 11 mastermind Khalid Sheik Mohammed, and secured financing from a top al-Qaeda operative to come to the United States as a "sleeper" agent to disrupt the financial system by hacking into bank computers. The government also claimed that Mr. Marri had information regarding the manufacture of chemical weapons.

Mr. Marri argues that he cannot be classified an enemy combatant because he is not affiliated with the "armed wing of an enemy government" and never fought on a battlefield against the United States or its allies. Mr. Marri's argument defies modern realities; such a definition of enemy combatant would prevent the government from seizing would-be hijackers intent on repeating the carnage of Sept. 11. Moreover, Congress, through the 2001 Authorization to Use Military Force, empowered the president to detain terrorism suspects.

That flexibility, however, must be held in check by a muscular legal process that gives detainees ample rights to challenge their detention. Mr. Marri has not been given that opportunity. Although he turned to the federal courts to contest his detention, he has been at a severe disadvantage from day one. In criminal cases, the government has the burden of proving someone's guilt beyond a reasonable doubt; the burden shifts to the defendant in a habeas corpus proceeding challenging conviction and incarceration. This is a sensible approach when defendants have had the benefit of a full-blown trial and the chance to review and challenge government evidence. But it is a perversion of justice to place the burden of disproving the government's case on people who have been summarily held on the basis of untested and often unseen evidence. Yet that is the approach that has been applied to Mr. Marri. He may be a dangerous man, but, especially after five years of holding him, the government must be required to prove its allegations.

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