The latest issue of the New Yorker contains an excellent article setting out the challenges that a case that will be heard by the U.S. Supreme Court in April 2009 poses for the Obama administration. As the author of the piece, Jane Mayer, describes it, the al-Marri case will require the Obama administration to “offer quick answers to a host of complicated questions about its approach to fighting terrorism.” Her detailed piece explores several such issues and focuses in particular on the Obama administration’s stance on preventive detention laws.
In India, the post-independence legal system has – somewhat paradoxically given the great abuse of such laws during the colonial era – endorsed and frequently justified the use of preventive detention, to the point where even civil libertarians seem to take their existence for granted. This was evident most recently in the post-Mumbai amendments to our anti-terror legal regime. This is, in Mayer’s telling, in contrast with the historical experience of the U.S. where
many human-rights advocates and civil libertarians […] regard indefinite detention as antithetical to the American legal system’s most basic tenets. Alberto Mora, a Republican lawyer who, as general counsel of the Navy, broke with the Bush Administration after concluding that some of its brutal counterterrorism policies were potential war crimes, warns, “We simply can’t have indefinite detention. Due process and fundamental fairness make that clear.”
Mayer notes that the Obama administration will have to decide this issue against the backdrop of President Obama’s previous policy declarations during the campaign:
As a candidate, Obama promised a sharp break with the Bush Administration’s counter terrorism policies. In a written statement for the Boston Globe, Obama, who taught constitutional law in the nineteen-nineties, said, “I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.” (In fact, the Bush Administration went beyond this claim, arguing that Congress had explicitly granted the President this authority, in a bill passed after the attacks.) In the Globe, Obama went on, “The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.” In his Inaugural Address, Obama further underscored his differences with Bush in this area, saying, “As for our common defense, we reject as false the choice between our safety and our ideals.” A top legal adviser to Obama told me that the President also believes that legal residents in America, like Marri, are entitled to due process.
What makes the issue more intriguing is the fact that members of the Obama legal team have strong civil libertarian credentials built, in considerable part, on opposing the Bush administration’s policies on the war on terror. (The article includes quotes by Neal Katyal and Marty Lederman on issues closely related to the case). Mayer’s article contains detailed descriptions of the way detainees have been treated in the U.S. in the post-9/11 era, and her piece is a grim reminder of the kinds of measures that are now considered legally justifiable.
It is clear, therefore, that the al-Marri case will be a significant test case for the Obama administration’s approach to anti-terrorism law and policy. The case will hopefully cause other governments – and courts – around the world to reassess both the legality and soundness of current anti-terrorism laws and policies.