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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, November 25, 2006

al-Marri Briefs: Citizenship/Treason Issues

And Also: Stuffing (cooked outside the bird for my benefit) and honey glazed carrots make good leftovers. Also, a passing reference near the end of The Slaveholding Republic led me to an interesting article on how many -- in both parties -- in the late 19th Century saw the importance of federal involvement in education to ensure an intelligent citizenry. This might warrant a separate entry. Henry Blair alone sounds interesting.

But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and non-resident enemy aliens who at all times have remained with, and adhered to, enemy governments. ... The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

-- Johnson v. Eisentrager

Some suggest, and the MCA underlines the point, that aliens should be treated differently from citizens, so it is legitimate to label al-Marri an enemy combatant. An important 1950 ruling, the limitations of which recent cases called into question or avoided, comes into play here. The Eisentrager case, however, clearly concerned people held outside of our borders, though arguably in some fashion still under our control. Here, we are talking about residents of the Midwest. And, residents that have "submitted themselves to our laws." Since twenty million, according to one estimate, legal aliens reside in this country, this is a fundamental point. As my paternal grandparents probably knew too after they came ashore after their trip from their homeland in Italy.

[This ruling is especially important given that Justice Kennedy cited it in his concurring opinion in the Rasul case, underlining a possible division in his mind between different levels of residency. Thus, a person picked up overseas would have the least rights (if any?), those in Gitmo and other U.S. jurisdictions still more, and citizenship will also come into play as well. The fact that labeling Illinois residents combatants has clear possibility to affect citizens directly, as noted before, could also affect his judgment. With O'Connor off the Court, this might be deemed the "compromise" position.]

whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States

-- Federal treason statute

This is where the treason brief especially comes into play. I appreciated the brief since it clarified something that I was a bit hazy about -- the application of treason laws to non-citizens. Using history and case law to underline the point, the brief underlines that those who directly or indirectly pledge "allegiance" to our nation can be held to have committed treason. al-Marri did not enter the country for the purpose of causing harm to our shores (cf. the Germans in the Quirin case), and such "lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights." Given the rule of no free lunch, it also supplies him certain obligations. And, treason liability. Again, history bears this out -- such as Brits who were liable for assisting Confederates during the Civil War.

[The lesser fits into the greater here too. al-Marri is liable in other ways, of course, so need not be charged with the hard to prove crime of treason. The point however is that he is not a non-person under our laws, but one with many rights and obligations that underline the illegitimacy of labeling him an enemy combatant. OTOH, people here on brief holiday or especially those already agents of another government (including friendly ones), probably would not be liable. They would be liable for another things, sure enough, unless diplomatic immunity implies.]

The open-ended use of "combatant" here clouds the line between civilian and military power without even being necessary for our safety. The dangers of this path is clear as is to suddenly pervert the law of war that ironically (the theme is by now expected) this country did a lot to develop (see, e.g., Louis Fisher's book on military commissions). The ends simply do not justify the means. A final citation of Hamdi plurality underlines the point -- "we agree that indefinite detention for the purpose of interrogation is not authorized." Yes, we do. Of course, the Supremes also punted in the Padilla case, leaving it to the four justice minority to underline that point. The result was continual mistreatment, including credible claims of torture.

So, again, what matters is what happens when the rubber hits the road ... what should happen is clear though. And, given the basic securities involved here, citizenship alone is not the determining factor. Surely not in this country -- as we honor our origins, are we to forget the idea that Thanksgiving partially concerned respecting the basic needs of newcomers? But, then again, the "true meaning" of such holidays is a bit too often best found only in Charlie Brown holiday specials.

Not always, though.