Obama's Abusable Power

On September 11th, George Bush gained a lot of power, legal or otherwise, and whether you like it or not this power transferred to the new administration. Obama may be the most powerful president ever, but this new found power carries the requisite of responsibility. Given the current state of our nation, it may be possible, perhaps even responsible, for Obama to abuse his new found power for the greater good; but so far, his administration has remained effectively silent on the matter.

This article will attempt to detail the legal processes associated with the creation and transition of this power; by understanding the circumstances, we can better understand the promise or peril of any Executive decision resulting from the use of these aforementioned powers.

Our sleuthing follows the tail of Ali Saleh Kahlah al-Marri, an alleged (and in all likelihood) al Qaeda operative originally detained in 2001 as a material witness to the FBI's investigation of 9/11. Al-Marri was arrested in Peoria, Illinois and was eventually charged with credit card fraud; a trail date was then set for June of 2003. Evidence of these events can be found within a 2007 court judgment which we will be discussing later on; I've excerpted the relevant information below:

In February 2002, al-Marri was charged in the Southern District of New York with the possession of unauthorized or counterfeit credit-card numbers with the intent to defraud. A year later, in January 2003, he was charged in a second, six-count indictment, with two counts of making a false statement to the FBI, three counts of making a false statement on a bank application, and one count of using another person's identification for the purpose of influencing the action of a federally insured financial institution. Al-Marri pleaded not guilty to all of these charges. In May 2003, a federal district court in New York dismissed the charges against al-Marri for lack of venue.

The Government then returned al-Marri to Peoria and he was reindicted in the Central District of Illinois on the same seven counts, to which he again pleaded not guilty. The district court set a July 21, 2003 trial date. On Friday, June 20, 2003, the court scheduled a hearing on pre-trial motions, including a motion to suppress evidence against al-Marri assertedly obtained by torture. On the following Monday, June 23, before that hearing could be held, the Government moved ex parte to dismiss the indictment based on an order signed that morning by the President.

Source: Al-Marri v. Wright via USCourts.gov [PDF]

Before al-Marri could face his June 23rd trail, President Bush declared him an "Enemy Combatant" and initiated the process required to transfer him to the South Carolina equivalent of Guantanamo Bay. While imprisoned in South Carolina, the Federal District Court heeded the Government's request to dismiss all charges filed against al-Marri. Reading further in the aforementioned 2007 judgment reveals additional details of the just described sequence of events:

In the order, President George W. Bush stated that he "DETERMINE[D] for the United States of America that" al-Marri: (1) is an enemy combatant; (2) is closely associated with al Qaeda; (3) "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism;" (4) "possesses intelligence . . . that . . . would aid U.S. efforts to prevent attacks by al Qaeda;" and (5) "represents a continuing, present, and grave danger to the national security of the United States." The President determined that al-Marri's detention by the military was "necessary to prevent him from aiding al Qaeda" and thus ordered the Attorney General to surrender al- Marri to the Secretary of Defense, and the Secretary of Defense to "detain him as an enemy combatant."

The federal district court in Illinois granted the Government's motion to dismiss the criminal indictment against al- Marri. In accordance with the President's order, al-Marri was then transferred to military custody and brought to the Naval Consolidated Brig in South Carolina.

Source: Al-Marri v. Wright via USCourts.gov [PDF]

Al-Marri's counsel filed a petition, on his behalf, on July 8th, 2003 seeking a writ of habeas corpus in the Illinois jurisdiction of his original arrest; this petition was later dismissed citing a "lack of venue." Exactly one year later, his representation filed another similar petition in the South Carolina District Court, again requesting writ to habeas corpus. The Government responded on September 4th by citing the Declaration of Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism, as support for the President's order to detain al-Marri as an enemy combatant. Mr. Rapp's declaration was 16 pages long and became known as the Rapp Declaration. The Rapp Declaration is presented below with a few pertinent excerpts highlighted with regard to a future article:

[The original contents of this document were classified, but the information has since been declassified as noted by the stricken text. Bold added for emphasis.]


Classified Declaration of Mr. Jeffrey N. Rapp

Director, Joint Intelligence Task Force for Combating Terrorism

1. (U) Pursuant to 28 U.S.C. § 1746, I, Jeffrey N. Raw, hereby declare that, to the best of my knowledge, information and belief, and under the penalty of perjury, the following is true and correct:


2 (U) I submit this Declaration for the Court's consideration in the matter of Al-Marri v. Hanft, Case Number 2:04-2257-26AJ, pending in the United States District Court for the District of South Carolina.

3. (U) Based on the information that I haw acquired in the course of my official duties, I am familiar with all the matters discussed in this Declaration. I am also familiar with the interviews of Ali Saleh Mohamed Kahlah Al-Marri (Al-Marri) conducted by agents of the Federal Bureau of Investigation and by personnel of the Department of Defense (DoD) once the DoD took custody of Al-Marri on 23 lune 2003 after he was declared an enemy combatant by the President of the United States.



8. (S//NF) Al-Marri, also known as Abdulkareemm A. Almuslam, is currently being detained in the Naval Consolidated Brig in Charleston, South Carolina. The President of the United States has determined that he is closely associated with al Qaeda, an international terrorist organization with which the United States is at war. All detailed below, Al-Marri is an al Qaeda"sleeper" agent sent to the United States for the purpose of engaging in and facilitating terrorist activities subsequent to September 11, 2001. Al-Marri currently possesses information of high intelligence value, including information about personnel activities of al Qaeda. Prior to arriving in the United States on September 10.2001, Al-Marri met personally with Usama Bin Laden (Bin Laden) and volunteered for a martyr mission or to do anything else that al Qaeda requested. Al-Marri was assisted in his al Qaeda assignment to the United States by at least two high-level al Qaeda members: September 11, 2001 mastermind Khalid Shaykh Muhammed (KSM); and al Qaeda financier and September 11, 2001moneyman Mustafa Ahmed Al-Hawsawi (Al-Hawsawi). Al Qaedasent Al-Marri to the United States to facilitate other aI Qaeda operatives in carrying out post-September 11, 2001 terror attack. Al Qaeda also asked Al-Marri to explore computer hacking methods and the U.S. financial system. In addition, Al-Marri was trained by al Qaeda in the use of poisons and had detailed information concerning poisonous chemicals stored on his laptop computer. Information about Al-Marri's relationship with and activities on behalf of al-Qaeda has been obtained from and corroborated by multiple intelligence sources.


27. (S//NF) In addition, Al-Marri's laptop computer contained numerous computer programs typically utilized by computer hackers; "proxy" computer software which can be utilized to hide a user's origin or identity when connected to the internet; and bookmarked lists of favorite websites apparently devoted to computer hacking. Al Qaeda had tasked Al-Marri with exploring the possibility of hacking into the main frame computers of banks inside the U.S. to wipe out balances and otherwise wreak havoc with banking records in order to damages the U.S. economy. Al-Marri had discussed with al Qaeda other hacking operations as well, including hacking into the computers of banks and credit card companies, obtaining credit card account numbers, and using the these numbers to book airline reservations on five or six flights. This in accord with the belief that fulling booking flight with false reservations would result in loses to the airlines industry.



35. (U) In conclusion, investigation has determined that Al-Marri was an active al Qaeda operative at the time of his entry into the United States on September 10, 2001. Al-Marri was sent to the United States at the behest of al Qaeda. Upon his arrival in the United States. Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States. Al-Marri's status has been subject to a rigorous review process and it has been determined that Al-Marri represents a continuing grave danger to the national security of the United States. Al-Marri must be detained to prevent him. from aiding al Qaeda in its efforts to attack the United States, its forces, other governmental personnel, or citizens.

Source: Rapp Declaration via WashingtonPost [PDF] (Mirror)

Al-Marri was then permitted to respond to the Government's evidence; he contended that he was not an enemy combatant and moved for summary judgment. The district court would eventually deny his motion, but the final say was delegated to a magistrate judge. The magistrate judge eventually ruled that the Rapp Declaration provided sufficient grounds for classification as an enemy combatant; the magistrate judge directed al-Marri to file rebuttal evidence.

In response to the magistrate judge, Al-Marri denied their assertion, but filed no rebuttal evidence citing the court's burden to provide evidence of his guilt; he argued that the Rapp Declaration did not suffice. In 2006, the magistrate judge recommended dismissal of al-Marri's case and the district court adopted this suggestion; al-Marri then signaled his intent to appeal.

The US Court of Appeals for the Fourth Circuit presided over al-Marri's appeal and issued the following ruling on June 11th, 2007. The 4th Circuit unanimously reversed the district court's ruling with regard to al-Marri's habeas corpus argument. The court did not however reach a unanimous verdict with respect to the issue of Executive power; one of the three judges voted to uphold the district court's ruling. The full text of the majority ruling is presented below:


For the foregoing reasons, we reverse the judgment of the district court dismissing al-Marri's petition for a writ of habeas corpus. We remand the case to that court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a reasonable period of time to be set by the district court. The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.

Source: Judgment Al-Marri v. Wright via USCourts.gov [PDF]

The 4th Circuit court then held an en banc rehearing on their previous ruling; the date of the hearing was October 31, 2007. On July 15th, 2008 they issued two 5-4 decisions; their first ruling stated that if the Government's allegations are in fact true, al-Marri could be held indefinitely within a military prison as an enemy combatant; the court also ruled that al-Marri was not provided his constitutionally defined due process of law to determine whether the aforementioned allegations were in fact true. The complete opinion of the en banc rehearing is quoted below:





Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri's military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).

Subsequently, this court vacated that judgment and considered the case en banc. The parties present two principal issues for our consideration: (1) assuming the Government's allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.*

Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.

Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.


*We deny the Government's motion to dismiss this case for lack of jurisdiction. The Government relied on section 7 of the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600, which amended the Detainee Treatment Act (DTA) of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en banc argument in this case, the Supreme Court declared section 7 of the MCA unconstitutional. See Boumediene v. Bush, 553 U.S. ___, ___, slip op. at 64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Marri's habeas petition.

Source: Al-Marri v. Pucciarelli via USCourts.gov [PDF]

In response to the 4th Circuit's en banc rehearing, al-Marri's representation filed a petition for certiorari on September 19th, 2008 with the US Supreme Court. The Supreme Court would accept the appeal on December 5th, 2008 pertaining to the following question:





Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize and if so does the Constitution allow-the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?

CERT. GRANTED 12/5/2008

Source: 08-368 Al-Marri v. Pucciarelli Questions Presented via SupremeCourtUS.gov [PDF]

Between the time of the initial hearing and the Supreme Court's issuance of a ruling, a new Executive took office. Just two days into his presidency, Barack Obama issued a memorandum detailing his administration's intent to review the detention of Ali Saleh Kahlah al-Marri. The review is to be completed on or before March 23, 2009.

The Supreme Court then issued their ruling on March 6th:




08-368 (08A755)

The application of the Acting Solicitor General respecting the custody and transfer of petitioner, seeking to release petitioner from military custody and transfer him to the custody of the Attorney General, presented to The Chief Justice and by him referred to the Court is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

Source: Al-Marri v. Spagone Summary Certiorari Summary Disposition via SupremeCourtUS.gov [PDF]

A press release by the American Civil Liberties Union effectively describes the ramifications of the Supreme Court's decision:

WASHINGTON - The U.S. Supreme Court today vacated a lower court decision giving the president the extraordinary power to seize and indefinitely detain U.S. citizens or residents without charge or trial. The case was brought by the American Civil Liberties Union on behalf of Ali Saleh Kahlah al-Marri, who, after being held for almost six years in military detention, was indicted last week in federal court and charged with two counts of material support for terrorism.

In July 2008, the full U.S. Court of Appeals for the Fourth Circuit ruled in a fractured decision that the president had legal authority to imprison al-Marri indefinitely without charge. As one judge noted in dissent, however, to accept the government's claim of extraordinary detention power would have "disastrous consequences for the Constitution-and the country." The Supreme Court vacated that decision and dismissed the case as moot.

The following can be attributed to Jonathan Hafetz, staff attorney with the ACLU National Security Project and lead counsel in al-Marri's case:

"While we would have preferred a Supreme Court ruling that U.S. citizens and lawful residents detained in the U.S. cannot be held in military custody as 'enemy combatants' without charges or trial, the Supreme Court nonetheless took an important step today by vacating a lower court decision that had upheld the Bush administration's authority to designate al-Marri as an 'enemy combatant.' Congress never granted the president that authority and the Constitution does not permit it. We trust that the Obama administration will not repeat the abuses of the Bush administration having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration's actions in this case."

Source: Supreme Court Vacates Decision Giving President Indefinite Detention Power In Al-Marri Case via ACLU.org

Obama appears to be taking the necessary steps, at least in the eyes of public opinion, to limit his own power, but the legal door has yet to be closed. Noah Feldman of Harvard University wrote an interesting and very informed op-ed in Thursday's edition of the New York Times that discussed the entire al-Marri debacle as it relates to President Obama. Prof. Feldman places Obama within the precipice of the legal doorway, unable, or perhaps unwilling to make an immediate or definitive decision with regard to his Executive power.

Desperate times call for desperate measures, and Obama's inherited power could help alleviate the current angst on Wall Street; we'll provide further analysis later in the week.

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