Wednesday, May 17, 2006

a HUGE story that got missed: the end of the 5th Amendment?

A moment of silence for `the fightin'" 5th Amendment. It was badly wounded Friday

Of all the Amendments in the Bill of Rights, the 5th is the one with the most unsavory reputation. To many "Taking the 5th" has always been seen as the last refuge of the guilty weasel, a way to get off on a technicality.    However, the 5th's weasel-protecting properties are a necessary consequence of the powerful protections it give us ordinary citizens against the power of the state.

  Unlike nearly every other country in the world, in the US you cannot be forced to answer charges leveled against you, nor be compelled to give testimony before a tribunal.  In the US  if the State wants to charge you with a crime, it is THEY who must prove you did something wrong.  You are not required to "prove" anything, much less your innocence.

All that however may have just changed.  In a shocking but  almost unnoticed development last week, A Federal Magistrate ruled a man can be held indefinitely because he failed to prove himself innocent:

A federal magistrate judge yesterday recommended rejecting a petition by the sole remaining enemy combatant being held on U.S. soil, finding that Ali Saleh Kahlah al-Marri had not offered persuasive evidence rebutting the government's allegations against him.

And of Course, that Shredder of the Constitution,  the Black Widow of the Bill of Rights, the Global War On Terror was given as the reason for this latest insult to our  fundamental civil rights

For those whose heads are too busy spinning from the constant onslaught of outrages manufactured by the administration to remember names, Al-Marri, a Qatari national and college student in Peoria Il., is the only "enemy combatant" still being held indefinitely in on us soil( the Military Brig where they are also  holding Padilla).

 But  don't feel too bad for him.   That whole being held in defiance of the law and due process?  Apparently, according to the Magistrate, that is his fault for being unable to disprove the FBI's allegations against him: (allegations mind you, there are NO charges pending against Al-Marri )

Magistrate Judge Robert C. Carr of the U.S. District Court of South Carolina upbraided Marri for declining to address detailed allegations contained in a declassified government report outlining his alleged links to al-Qaeda.

"The petitioner's refusal . . . is either a sophomoric approach to a serious issue, or worse, an attempt to subvert the judicial process and flout due process," Carr wrote. "The petitioner has squandered his opportunity to be heard by purposely not participating in a meaningful way."

Excuse me, Mr. Pot?  Shall I put that call though to Mr. Kettle now?

Yes the Judge is blaming the prisoner for failing to refute the FBI's Allegations against him.  It's his remaining silent and taking advantage of his constitutional rights that's subverting the judicial process.  Gotcha.

Oddly enough  apparently NOT qualifying as "Subverting the Judicial process" in Judge Carr's Mind is The government's sneaky legal maneuver in this case:


 Al-Marri was actually indicted for terrorism-related offenses in federal district court,... Motions were being heard...attorneys were preparing for trial,.

All of a sudden, federal prosecutors requested the presiding judge in the case to dismiss the indictment against al-Marri. The judge granted the request, but "with prejudice," which means that under the Sixth Amendment bar against double jeopardy, U.S. officials can now never bring those particular criminal charges against al-Marri again.([sic] NB: this is actually the 5th amendment protection, and more properly it's an estoppel issue not a double jeopardy one, but these are legal technicalities; the author's point is essentially correct-ED}

 Once the order of dismissal was entered ..U.S. officials secured an official "enemy combatant" designation from President Bush and immediately transferred al-Marri to the same military brig in South Carolina

So to be clear here, Judge Carr, is denying Al-Marri's habeas petition (Charge Me or Release Me) because he failed to adequately refute charges he can never legally be tried  on    

And just for the record,  those "Serious allegations" are,  according to the affidavit accompanying his arrest warrant Lying to and FBI agent about making an overseas phone call, and using a fake name and social security number to open 3 bank accounts, and credit card fraudd.  That's IT.  

So WHY is he being held as an enemy combatant?  Good question.    As you can see the Affiidavit does also  contains tons of references to 9/11, and known terrorists, but the link to this defendant are high tenuous and circumstantial.  (Mostly, interestingly enough, involving details of numbers Al-Marri called from a disposable phone and payphone, wonder how they might have gotten those)  frankly in my opinion, but few even rise to the level of admissible proof in a regular criminal trial.   (besides when's the last time you saw a a terrorist with a mullet?)

Frankly the FBI had a MUCH stronger case that Al-Marri was  a garden variety hacker and identity thief.  And had they Proceeded with the original trial it'smore than  likely they  could have safely locked him away for 20-30 YEARS.  Apparently , though making us safer AND honoring the law was too much to ask of  our government.  

Consider the incredible insult this case represents to everything we know about fairness and due process.   The government, first investigates and arrests Al-Masri and charges him with several crimes.  So far So good, everything working as it should.

    However, right before Al-Masri  has his constitutionally guaranteed trial to force the government to prove their case, the government instead drops  all charges against him, dismissing  them forever.    Rather than being then allowed to go free, however, the nightmare begins instead.  Al-Masri  finds himself being arrested and  taken to a military prison in South Carolina, charged with precisely nothing,  all on the strength of the fact that George W. Bush signed a Paper declaring him a bad guy.  The government essentially substitutes a signature on a  sheet of paper for 200 years of legal tradition.

Unfortunately this  is now only the first outrage  in this case.    After 3 long years lawyers for  Al-Masri manage to file a  "great Writ" of Habeas Corpus to force the government to either charge him, try him, and prove their case against him, OR let him go at once.   However,  the Judge denies his motion.


Well because the judge didn't feel Al-Marri  sufficiently disproved the charges that have never been formally  made against him.   (the Judge apparently having been absent the day they discussed the Constitution in Law school)  Then,  in a final rhetorical twist that very nearly defines the phrase "adding insult to injury", he  scolds Al Masri for attempting to "subvert due process"

I think I'd be angrier if I weren't in shock frankly.    I became a lawyer because I  actually truly believe in our legal system,  and believe that despite all its obvious flaws it was one of the fairest in the world.    However I feel like since Bush began his "unitary executive " rampage  we've  gone from living in a country that had a legal system that was the envy of the world, to one who's legal code was apparently written as a collaboration between Joseph Heller and Franz Kafka.

Update [2006-5-15 21:14:44 by Magorn]:

By popular demand: the 5th Amendment to the US Constitution (it's an action packed lil' bugger)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


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