The case of Ali Saleh Kahlah Al-Marri will provide an early test of the extent to which President Obama is prepared to stand by the rule of law in the anti-terrorism battle. Al-Marri, a legal resident alien, was arrested at his home in Peoria, Illinois, shortly after September 11. Accused of being a “sleeper” Al Qaeda agent, but never tried by any tribunal, Al-Marri has been imprisoned for seven years, the last four in military custody. The Supreme Court is scheduled to hear his case in April.
The Justice Departemnt has asked for an extra thirty days in which to prepare its brief, and many human rights advocates are hoping that the new sheriff in town (that’s President Obama) will change the government’s position. Until now, the government has argued strenuously that even though he was a legal resident at the time of his arrest, Al-Marri can be detained without trial by the military and tried by the military, because he is “an enemy combatant,” albeit one they found in Peoria.
Should the case be decided by the Supreme Court, his fate may well turn on the continued vitality of a case decided a year after the Civil War ended, Ex Parte Milligan. With help from a colleague (Mike Howe in our Boston office), I just filed a brief in Al-Marri’s case arguing that Milligan closely parallels Al-Marri’s situation, and compels a ruling that Al-Marri is entitled to a trial before a jury in an ordinary civil court.
In short, Lambdin Milligan was accused of being a terrorist in support of a foreign government that sent hundreds of thousands of soldiers to defeat the United States. He was tried before a military tribunal in 1864 and sentenced to hang. Milligan insisted that he was entitled to a trial before a regular court, since the courts of Indiana were unimpaired at the time of his trial.
As detailed in our brief, Milligan caught a couple of breaks. First, his lawyers were able to recruit a Supreme Court rookie, Rep. James Garfield of Ohio (and future president), to argue his case. Garfield was a fire-breathing abolitionist and avowed Radical Republican with a distinguished record as a battlefield general. Though he was dedicated to a Union victory that would bring the South to its knees, Garfield was profoundly troubled by the use of military tribunals to try Milligan and his co-defendants in Indiana. The courts of that state were available to try the case, Garfield reasoned, and so they should. He argued the case without compensation.
Second, one Supreme Court Justice — David Davis of Illinois, an intimate of President Lincoln — was equally troubled by the military trial and took extra steps to make sure the Supreme Court heard the case, and then wrote a ringing vindication of Milligan’s position.
The current effort to head off terrorist attacks is a critical one, but it should not be the basis for changing essential rules that protect us as individuals. Surely the risks posed to the Republic today pale in comparison to those presented by the Civil War in 1864, yet the Supreme Court stood by the right to jury trial then. (Moreover, as the photo to the left shows, as well, any opinion by Justice Davis was, by definition, a weighty one.)