A Judicial Overreaction to Bush Abuses?

And consider al-Marri himself. He arrived in this country the day before the 9/11 attacks. The government claims to have evidence that he trained under Osama bin Laden in Afghanistan; sent e-mails to Khalid Shaikh Mohammed, the mastermind of the 9/11 attacks; volunteered for a "martyr mission"; received funds from a Qaeda financier; did research on chemical weapons; frequented jihadist Web sites; and was sent to the U.S. to explore computer-hacking methods to disrupt financial institutions.

If al-Marri had been arrested on, say, September 15, 2001, and seen as part of a wave of possibly imminent follow-on attacks, wouldn't we have wanted the government to hold and interrogate him for at least a couple of weeks without requiring that defense attorneys—whose customary tactic is to zip their clients' lips—be in the room?

Judge Motz specifically asserts that it is illegal for the government to detain a suspect such as al-Marri indefinitely "in order to interrogate him without the strictures of the criminal process." This was an understandable response to the Bush administration's incommunicado interrogation of al-Marri in a South Carolina Navy brig for 16 months, with no contact with his wife, children, or lawyers. Al-Marri has plausibly alleged that he was subjected to extreme sensory deprivation and threatened with being sent to Egypt or Saudi Arabia to be tortured, sodomized, and forced to watch his wife being raped.

But to the extent that the Motz opinion would forbid, say, two weeks of incommunicado interrogation—using methods that are aggressive but stop short of torture and near-torture—Congress should explicitly authorize such detention and interrogation, as part of a comprehensive rethinking of how to handle captured terrorism suspects.

The Motz opinion also implies a legal equivalence between Qaeda terrorists and domestic terrorists "like the Unabomber or the perpetrators of the Oklahoma City bombing" in 1995 that killed 168 people. But Al Qaeda, which murdered 3,000 Americans on 9/11 and openly seeks to murder millions more with nuclear and biological weapons, has both the intention and the capability to inflict harm dwarfing the threat from any domestic group, and from most foreign nations as well.

The logic of the Motz ruling that "military detention of al-Marri must cease" applies, she specified, only to suspects who have substantial ties to the United States and are seized within its borders, not to those now detained at Guantanamo and elsewhere overseas. She stressed that the government has never alleged that al-Marri "is a member of any nation's military, has fought alongside any nation's armed forces, or has borne arms against the United States anywhere in the world." This, Motz stressed, made him an ordinary civilian—not an enemy combatant—under Supreme Court case law and the international law of war.

Dissenting Judge Henry Hudson, who usually sits on a U.S. District Court in Virginia, countered that al-Marri "is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States," and thus was a target of Congress's September 2001 authorization for the president to "use all necessary and appropriate force" against "nations, organizations, and persons" involved in the 9/11 attacks.

The majority and dissenting opinions are both reasonable interpretations of ambiguous laws and precedents. Other judges will also disagree. The best resolution would be for Congress to create a new national security court for such cases and equip it with detailed, congressionally adopted due process rules on all aspects of detention and interrogation. (See my February 24 column.)

Congress ducked these hard issues when it passed the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. As a result, neither law came close to devising a process that is fair in the eyes of world opinion. This helps explain why world opinion is now so hostile to America—and why it may be getting harder for us to get our hands on bad guys in the first place.