Fisking folkbum

For reasons known only to the cyber-God, I can't access local blogger Jay Bullock's comment sections, so I need to comment on his posts here. Jay recently posted on the case of Ali Saleh Kahlah Al-Marri. Al-Marri is a citizen of Qatar, who arrived in the US on September 10, 2001 purportedly to study computer science at Bradley University. He was arrested in December of that year as a material witnesses in the investigation of the 9-11 attacks. He was ultimately charged with credit card fraud and related charges but, while the charges were pending, he was designated as an enemy combatant. The government dismissed the charges and al-Marri has been detained in South Carolina since then.

The al-Marri case raises difficult questions - questions that are complicated by the recently passed Military Commissions Act. But one it does not raise is the propriety of the KGB-style "disappearing" that Jay thinks it does. Jay quotes blogger Glenn Greenwald who writes that al-Marri has been given "no opportunity to prove his innocence." Jay adds that "{t]here is no evidence that this man did anything other than sit around at home with his family, go to school, and follow the laws of the United States."

Neither assertion is true. al-Marri filed a habeas petition in federal court in South Carolina. The court's decision denying the petition is instructive. Simply put there, the issue in that case has been the level of proof that the government must introduce to shift to al-Marri the burden of, as Greenwald puts it, "proving his innocence" or, at least, disputing the evidence presented by the government as to his complicity in terrorist activities.

Contrary to Jay's assertion, the government has introduced evidence that he did "something other" than pursue the American dream. It has introduced a sworn declaration of a government investigator who asserts that al-Marri trained with bin Laden in Afghanistan between 1996 and 1998, volunteered to be a martyr and was directed to enter the US as a sleeper agent to explore methods of hacking into the US financial system. According to the affidavit, he has received financial support from Khalid Shaykh Muhammed and Mustafa Ahmed Al-Hawsawi, one of the financiers of the 9-11 attacks.

Although al-Marri was ostensibly in graduate school, the Declaration continues, he rarely attended classes and was failing. Analysis of his laptop revealed research regarding use of chemical weapons of mass destruction and other poisons, computer hacking, identity making and the purchase and sale of credit card numbers. The Declaration says that the laptop had stored 1000 credit card numbers, some linked to fraudulent charges in nearby Macomb, Illinois. He had other people's credit card numbers on his laptop, He had files on jihad, martyrdom, bookmarks to jihad and Taliban-related websites, etc. He had a draft e-mail messages to an account associated with Khalid Shaykh Muhammed.

Now, an obvious problem with this is that it's hearsay, i.e., it consists of things that other people told the declarant. That would normally be insufficient, but the Supreme Court plurality in Hamdi said that, if unrebutted, it might be enough to justify detention of a person designated as an enemy combatant. According to the district court reviewing al-Marri's habeas petition, the Supreme Court seems to have envisioned an iterative process. If the government introduces some evidence - even hearsay - that justifies detention, then the detainee must respond. If that response is sufficient, then the government may have to introduce more substantial evidence.

The problem in this case is that al-Marri has refused to offer anything in rebuttal of the government's case. He has generally denied that he is a bad guy but has told the court that he "respectfully declines at this time the Court's invitation to assume the burden of proving his own innocence, a burden that is unconstitutional, unlawful and un-American." While, I suppose, it could be that the conditions of his confinement make rebuttal impossible, that's not, at least according to the court, what he says.

Normally, he'd be right and that's where the difficult issues begin. To what extent do we depart from traditional standards for civilians in response to the threat of terror? That's the issue that the Democrats - when they are speaking with reason - see and its a legitimate one. We don't usually permit people to be detained on this type of evidence - whether or not they rebut it.

But there is another difficult issue. To what extent do we depart from the traditional standards for enemy combatants because, in the case of terror, those combatants may be embedded within the civilian population? We traditionally don't treat enemy soldiers as civilian criminals and there is good reason for that, too.

We can and should debate these things. My sense is that the administration, although it has been reasonably careful in its exercise of the more expansive powers that it has both claimed and that Congress has granted to it, has tended to seek rules that are weighed a bit too heavily in favor of the government.

But acting as if we've become a police state and ignoring what is really going on in cases like this doesn't advance that debate. It provides us with a sound bite, but not a conversation.