"We refuse to recognize a claim to power that would so alter the constitutional foundations of our republic."
As the court recognized, Habeas Corpus is the foundation of all of our other cherished liberties. And our elected representatives are slowly beginning to turn the ship of state to reinforce this fact. With a series of recent decisions in the courts, and the elections of 2006, I am hopeful that some of the excesses of the past five years are being curtailed.
The Executive, however, does not seem to understand the import of the decision.
"The president has made clear that he intends to use all available tools at his disposal to protect Americans from further Al Qaeda attack, including the capture and detention of Al Qaeda agents who enter our borders."
Let us make this as clear as possible:
Indefinite detention is not a tool that is available.
You may want it, it may look pretty locked up in the window, but it is not available. Period.
I have never understood how "all available means" becomes "all possible means" in the minds of The Executive. This is a distinction that makes a difference. It is a distinction as important and powerful as that between "reasonable doubt" and "any doubt." One standard ensures the effective function of our judicial system. The other ensures the limits on executive excess.
The tools we have available to us to combat the threats to our society, be they internal, external or otherwise, are not all the possible tools. It is our Constitution, Courts and Congress which define the powers and privileges that are available to The Executive.
Judge Motz, joined by Judge Roger L. Gregory, wrote that Mr. Marri might well be guilty of serious crimes. But she said the government could not circumvent the civilian criminal justice system through military detention.
The Law Enforcement Model works. It?s worked for decades. There is a reason that Ft. Leavenworth holds many notorious, global criminals, but Osama bin Laden is at large and Saddam Hussein was basically lynched. The militarization model only leads to the reduction of our rights, the increase of our fear and the exacerbation of the world?s disgust.
I will end with a quote from an incredible treatise on the just war versus law enforcement model of the fight against terrorism.
"There are those who say that we have no reasonable chance of success in eliminating terrorism; hence, they argue, we shouldn?t take up the fight. Or they argue about the difficulty in identifying an endstate, which problem at least causes hesitation. But the confusion here arises because detractors are trying to apply this just war concept to a problem that is much better understood in terms of the law enforcement model. Consider it this way. We can never reasonably hope to eliminate robbery or murder. Does it then follow that we shouldn?t pursue and bring to justice this particular robber or this murderer? It seems implausible to think so; we endeavor to bring to justice all evil doers even in the face of the fact that evil will nonetheless persist."
What makes this work so incredible is not its content, but rather its author and source. It was written by a Lt. Colonel in the Air Force. He offers a compelling and strong model for understanding the dimensions of the conflict we have with terrorism, and how that understanding should drive our actions.
I encourage everyone to go read it. And perhaps even send copies to your representatives.
(Some more stuff)