From: Robert Comer 

>   From a standpoint of policy, this result seems incredibly bizarre to me.
>Could it really be the case that the U.S. should have to deport or set free
>an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.?

Yes, that's the law, I don't see how anyone could find it bizarre. This is
what *should* happen because those laws are in place to protect citizen's
rights.  The SC should find the same exact way as the lower court.

Deport them and be done with it.

--
Bob Comer



On Tue, 12 Jun 2007 02:12:54 -0400, Gary Britt
 wrote:

>
>The subject at hand Rich was your erroneous summary of the 4th Circuit Al
>Marri case, and now you are wondering off into completely extraneous
>arguments.  I don't like a lot of things about Bush and the Bush
>administration and that dislike is growing daily.  This case you incorrectly
>summarized in your intro sentence just doesn't happen to be one of those
>things.  For a rational discussion of what is wrong and inconsistent with
>the 4th Circuit decision and an understanding of why the decision was 2-1
>with 1 in favor of the Bush understanding of the law and constitution and an
>explanation of why this decision will likely be reversed follows:
>
>Gary
>
>
>http://volokh.com/posts/1181615410.shtml
>
>Orin Kerr, June 11, 2007 at 10:30pm] Trackbacks
>What Should Happen to Al Qaeda Cell Members Discovered in the United
>States?: I've been mulling over the Fourth Circuit's decision in Al-Marri v
>Wright, and I have two tentative thoughts about it. First, as a matter of
>policy, its reasoning can lead to results that are completely bizarre.
>Second, those possible results help explain why I think the U.S. Supreme
>Court would look at the case very differently than did the Fourth Circuit.
>
>   To see why I think the results of Al-Marri are so puzzling, consider the
>following hypothetical. An Al-Qaeda cell of five individuals, all citizens
>of Qatar, enter the United States on student visas. The cell members' plans
>are to detonate a "dirty bomb" in New York City, and they
rent a hotel room
>in Jersey City, New Jersey (just across the river) to build the dirty bomb.
>One of the hotel employees thinks the group is suspicious, and he calls up
>the local police and tells an officer that there is a group of Arab men in
>the hotel staying in one room and acting very secretively.
>
>   The officer visits the hotel when the men are out one day and he requests
>that the hotel employee show him the room. The employee agrees; he opens the
>door with his key and shows the officer inside. They immediately see the
>bomb-making materials along with several photographs of Osama bin Laden and
>the 9/11 attacks taped to the walls. The officer contacts the FBI and the
>Department of Homeland Security. An hour later, the FBI has obtained a
>search warrant for the room and arrest warrants for the five men.
>
>   The men are arrested and charged criminally. A search of the hotel room
>discovers all the bomb-making materials. The room search also uncovers
>videotapes the men made celebrating their pending attack; the men each spent
>a few minutes on tape describing what attacks they will execute and hoping
>and praying that the streets of New York will "run red with Jewish and
>imperialist blood."
>
>   But there's a major problem with the criminal case: The evidence against
>the cell members was obtained in violation of the Fourth Amendment. Under
>Stoner v. Califonia, the men have a reasonable expectation of privacy in the
>hotel room and the hotel clerk lacks authority to consent to a law
>enforcement search. As a result, the evidence against the five men was
>obtained in violation of their Fourth Amendment rights. The evidence --
>including the videotapes in which they each celebrated the attacks and
>confessed to their plans -- must be suppressed.
>
>   So what should the government do? It seems to me that under the Fourth
>Circuit's decision in Al-Marri v. Wright, the government has two choices: it
>can either deport the men or else must set them free. The military cannot
>hold them, Al-Marri teaches; they are not "enemy combatants"
but rather are
>merely "civilians." Sure, they're Al Qaeda cell members who entered the
>United States to execute another 9/11, but hey, they're still civilians with
>Due Process rights against detention. It would be different if the men were
>Taliban soldiers, Al-Marri tells us; then they would be "enemy
combatants."
>But since they're just everyday Al Qaeda cell members instead, they can't be
>held under that authority. Under Al-Marri, the government has to either
>deport the men or set them free. (There could be a possibility of detaining
>the men on material witness warrants, but in this hypothetical they are the
>only people involved in the plot.)
>
>   From a standpoint of policy, this result seems incredibly bizarre to me.
>Could it really be the case that the U.S. should have to deport or set free
>an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.? I agree that
>there are often legitimate issues of proving that alleged terrorists are
>really terrorists; if the President declares that the five men are Al Qaeda
>members who want to blow up a dirty bomb, we may want to see some proof. But
>in this hypothetical, there is no doubt that the men are terrorists: just
>watch the tapes the men made before being caught in which they boast of
>their attacks. Could it really be the case that the most the government can
>do in light of the Fourth Amendment violation is to deport the men to a
>foreign country? I find that possibility just bizarre.
>
>   My reaction is part of the reason why I think the Supreme Court would
>have a very different take on Al-Marri than the Fourth Circuit did. Compare
>Al-Marri to Hamdi v. Rumsfeld. Hamdi was an American citizen captured and
>believed to have been fighting with the Taliban; he was brought to the
>United States and detained there. He argued that his detention violated 18
>U.S.C. 4001, which prohibits the detention of U.S. citizens "except pursuant
>to an Act of Congress." The Court disagreed, holding that Hamdi could be
>detained because the AUMF was the required Act of Congress. Hamdi then
>argued that his detention violated Due process; a plurality held that the
>detention was constitutional so long as Hamdi was given some process in the
>determination that he was an enemy combatant. It then remanded the case for
>the relevant proceedings.
>
>   I find it pretty unlikely that a majority of the Supreme Court would say
>that Hamdi can be detained (if he is given the necessary hearing) but
>Al-Marri has to be let go. It seems plausible to me that Hamdi and Al-Marri
>have equivalent rights to have their cases heard in court via the writ of
>habeas corpus: Hamdi because he is a U.S. citizen, and Al-Marri because he
>was detained in the United States. But once you get past jurisdiction, isn't
>the case for detaining Al-Marri a lot stronger than the case for detaining
>Hamdi? First, Al-Marri is a non-citizen while Hamdi is a citizen. Second,
>Al-Marri is at the core of what the AUMF was all about, while Hamdi was more
>at the periphery.
>
>   For this latter point, recall what the AUMF actually says:
>
>     The President is authorized to use all necessary and appropriate force
>against those nations, organizations, or persons he determines planned,
>authorized, committed, or aided the terrorist attacks that occurred on
>September 11, 2001, or harbored such organizations or persons, in order to
>prevent any future acts of international terrorism against the United States
>by such nations, organizations or persons.
>
>Isn't that pretty clearly directed at a member of an Al-Qaeda cell who
>entered the U.S. on September 10, 2001 to commit attacks -- much more
>directly than a United States citizen who was fighting against the Northern
>Alliance? That's part of the reason why i think the Supreme Court would look
>at this case differently than the Fourth Circuit; I suspect they would see a
>case like Al-Marri as being a core AUMF case, much more so than Hamdi. An
>alien Al Qaeda cell member who entered the U.S. to execute attacks is
>exactly the kind of person that Congress was trying stop with the AUMF; the
>case that he's an "enemy combatant" is stronger than the case
for Hamdi. If
>anyone is an "enemy combatant," it's Al-Marri (assuming the allegations
>against him are true).
>
>   That's why I think Al-Marri would be a repeat of Hamdi if it got to the
>Supreme Court. I imagine the Court holding that the AUMF is sufficient to
>detain non-citizen Al Qaeda members who entered the U.S. to execute attacks,
>and then moving on to what kind of Due Process hearing Al-Marri is entitled
>to receive to test whether he is in fact such a person. The Court would then
>remand for further proceedings based on whatever the Due Process standard
>turns out to be.
>
>   Anyway, that's my initial take; obviously it's open to revision if
>there's something I'm missing, which is always a possibility. Finally, I
>should add that there is a possible way out of the Fourth Amendment holding
>described above: A court could hold that members of an Al Qaeda cell who
>enter the U.S. to commit attacks have no Fourth Amendment rights under
>United States v. Verdugo-Urquidez because they lack sufficient legitimate
>connections with the U.S. If so, then the cell members would not be able to
>invoke the Fourth Amendment to challenge the illegal hotel search, and the
>evidence could be admitted against them.
>
>Rich Gauszka wrote:
>> You may want to consider moving to Chile as the idea of military
>> tribunals obviously appeals to you.
>>
>>
>> The United States has used the term Enemy Prisoners of War EPW for a
>> long time but of course that was subject to the Geneva Conventions for
>> treatment of those prisoners - something about humane treatment that
>> absolutely confounds the Bushies
>>
>>
>> http://www.icrc.org/ihl-nat.nsf/0/94B18B8D276D22C0C1256BC80044C23D
>>
>> Law or Regulations: Army Regulation 190-8 on Enemy Prisoners of War,
>> Retained Personnel, Civilian Internees and Other Detainees, 1997
>>
>> Gary Britt wrote:
>>> Yes it was.  It was an inaccurate highly biased and somewhat
>>> uninformed summary.
>>>
>>> We have a criminal system for criminals.
>>>
>>> We have a *separate* system for war prisoners, enemy combatants, and
>>> illegal enemy combatants.  These separate systems have always
>>> existed.  They are nothing new.  The congress has declared war and
>>> made specific authorizations for handling these people who are at war
>>> with us.  If you don't think we are war, then take it up with your
>>> congressman, but until the democrats actually vote to declare defeat
>>> and surrender, the AUMF and Military Comissions Act, etc remain in
>>> full force and effect.
>>>
>>> Gary
>>>
>>> Rich Gauszka wrote:
>>>> No my statement was not overbroad.
>>>>
>>>> Second we have a system of law. If someone is believed guilty then
>>>> bring them up before the system for a trial. - period.
>>>>
>>>>
>>>> "Gary Britt" 
wrote in message
>>>> news:466dde40$1{at}w3.nls.net...
>>>>>
>>>>> Rich Gauszka wrote:
>>>>>> How did I state this incorrectly? To quote the court
>>>>>>
>>>>> You Stated:
>>>>> So much for the Bushies valued belief that the
military can seize
>>>>> civilians and imprison them indefinitely ignoring
their constitution
>>>>> rights
>>>>>
>>>>> That statement is overbroad and incorrect as a result.  Bush can
>>>>> still pickup and imprison people like Hamdan and
Hamadi and Padilla
>>>>> and Masri. This case doesn't affect those situations
that have been
>>>>> resolved by the Supreme Court and the Military Commissions Act.
>>>>>
>>>>> After further reading, it appears that this matter is well
>>>>> overstated. This guy entered the USA after training in terrorist
>>>>> camps on SEPTEMBER 10, 2001. He is alleged to be part
of the second
>>>>> wave of Al Qaeda attacks that Bush has so far
thwarted.  Under Bush
>>>>> he was and is entitled to a trial before a military
tribunal where
>>>>> he can contest his status and have an appeal.
>>>>>
>>>>> Some law professors, who otherwise do not support the
President on
>>>>> his terrorist surveillance programs and strong article II
>>>>> constitutional powers are predicted that this case will be
>>>>> overturned either by an en banc review of the full 4th
circuit or by
>>>>> the Supreme Court.  It appears that Bush's position is
much stronger
>>>>> than the slanted media writings you focus on.
>>>>>
>>>>> Whether this case is upheld or reversed doesn't really
matter to me,
>>>>> but the facts as they are coming out seem to strongly
support the
>>>>> reasonableness of Bush's approach to this guy.  He is
alleged to be
>>>>> not just an enemy combatant but an illegal enemy
combatant (one who
>>>>> seeks to violate the rules of war by attacking purely civilian
>>>>> targets, etc.) and if Military Tribunals are good
enough to try our
>>>>> own soldiers who commit wrongful acts they are plenty
good enough to
>>>>> try such alleged illegal enemy combatants.
>>>>>
>>>>> Gary Britt
>>>>
>>>>

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