'Criminal Civilians,' Even Libby, Get Break

By Ward Harkavy Tue., Jun. 12 2007 at 8:59 AM

Categories: GWOT

The good news is that the U.S. Constitution was staunchly defended in a split decision by a 4th Circuit Court of Appeals panel yesterday. Even "criminal civilians" can't be held indefinitely in military detention. The bad news is that Scooter Libby is still walking the streets.

Here's the key line in the al-Marri v. Wright ruling, as recounted in Carol Leonnig's Washington Post story this morning:

The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.

Here's another stirring excerpt from the decision, penned by Judge Diana Gribbon Motz and quoted in the New York Times:

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them 'enemy combatants,' would have disastrous consequences for the Constitution — and the country.

We refuse to recognize a claim to power that would so alter the constitutional foundations of our republic.

Tell it, sister! Her sharp language should be no surprise if you recall my colleague Nat Hentoff's July 25, 2003, column, "Who Made George W. Bush Our King?" At the time, Motz had just written a stinging dissent in the Hamdi case in which she noted:

Courts have no higher duty than protection of the individual freedoms guaranteed by our Constitution. This is especially true in time of war, when our carefully crafted system of checks and balances must accommodate the vital needs of national security while guarding the liberties the Constitution promises all citizens.

The Supreme Court eventually backed up Motz's dissenting view, more or less.

As for yesterday's decision written by Motz, read it here. But the bad news is that even a criminal civilian like Libby can't just be summarily hauled off to jail and kept there indefinitely.

The sad fact is that all kinds of powerful lawyers have lined up to keep Libby from being immediately imprisoned. Check out JustOneMinute for a quick analysis and continuing coverage of the amicus brief filed on Libby's behalf by Alan Dershowitz, Robert Bork, and others.

Dershowitz recently claimed a victory of another sort when maverick professor Norman Finkelstein was denied tenure at DePaul. A pal of Noam Chomsky's and a harsh critic of Israel and the Holocaust "industry" (but staunchly defended by Holocaust historian Raul Hilberg), Finkelstein has long been one of fanatical Israel supporter Dershowitz's enemy combatants. Dershowitz has been a harsh critic of the Bush regime's military detentions. But when it comes to Israel, that's another matter. Attack Israel's policies, and he'd put you away and throw away the key.

Finkelstein used to teach at NYU and Hunter but was hounded out of New York. Now he's been hounded out of Chicago, despite the fact that many of his students apparently thought he was a dynamic teacher.

The Finkelstein-Dershowitz cat fight is one of the nastiest ever, and it says a lot about the difficulty faced by any U.S. academic daring to attack Israeli policies. Here's Finkelstein's side, and here's one of Dershowitz's mortar shells landing on Finkelstein and Chomsky.

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