Reno Challenging Terrorist Trial by Military Commission

Here's an interesting twist in the Military Commissions.

Former Attorney General Janet Reno and seven other former Justice Department officials filed court papers Monday arguing that the Bush administration is setting a dangerous precedent by trying a suspected terrorist outside the court system.

It was the first time that Reno, attorney general in the Clinton administration, has spoken out against the administration's policies on terrorism detainees, underscoring how contentious the court fight over the nation's new military commissions law has become. Former attorneys general rarely file court papers challenging administration policy.

Suspected al-Qaida sleeper agent Ali Saleh Kahlah al-Marri is the only detainee being held in the United States.

The former prosecutors challenged the Justice Department's right to bring al-Marri before a military commission.

A citizen of Qatar, he was arrested in 2001 while studying in the United States. He had faced criminal charges until authorities designated him an enemy combatant and ordered him held at a naval base in South Carolina.

The Justice Department said in court papers last week that a new anti- terrorism law strips detainees such as al-Marri of the right to challenge their imprisonment in court.

The thing that makes this one in particular interesting is that formerly the US has treated enemy combatants within the US legal system. I looked up some of the German Spy cases from WWII and it appears that they were tried in a regular constitutional court.

Two of the eight saboteurs who landed in June 1942 gave themselves up to the Federal Bureau of Investigation and thus precipitated the arrest of the others. [On 13 June 1942, 4 agents were landed from U-584 on Amagansett, Long Island, New York; and on 17 June 1942, 4 agents from U-202 were landed on Ponte Vedra Beach, south of Jacksonville, Florida. A subsequent military trial of the 8 captured agents resulted in 6 death sentences, one life imprisonment and one 30-year sentence. On the recommendation of the Justice Department, President Truman granted executive clemency on condition of deportation to the two surviving agents who were deported to the American Zone of Germany in 1948].

I'm uncertain of why the al-Marri case is different. Though the signatories of this motion state this:

"The government is essentially asserting the right to hold putative enemy combatants arrested in the United States indefinitely whenever it decides not to prosecute those people criminally _ perhaps because it would be too difficult to obtain a conviction, perhaps because a motion to suppress evidence would raise embarrassing facts about the government's conduct, or perhaps for other reasons," the former Justice Department officials said.

That smells strongly of unsupported conjecture. Of course, they also phrase it in the most politically damning manner.

This gives one pause as to what will happen with the next sitting President on the Military Commissions. Now that it is law, how will it be enforced. There's little doubt in my mind that the trials of the "enemy combatants" won't get started for quite some time yet.