Judge to Bush: Stop Pissing on the Constitution

Adam Liptak just posted this on the New York Times web site:

In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Diana Gribbon Motz wrote, “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,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”

Wonder which rightie blogger will be the first to say that Judge Motz supports terrorists?

The ruling was handed down by a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., in the case of Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant.

Mr. Marri, whom the government calls a sleeper agent for Al Qaeda, was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.

He has been held for the last four years at the Navy Brig in Charleston, S.C.

Get this:

Mr. Marri was charged with credit-card fraud and lying to federal agents after his arrest in 2001, and he was on the verge of a trial on those charges when he was moved into military detention in 2003.

I can’t help but think that if people like Marri had any certifiable ties to al Qaeda, the Bushies would have shoved it in all our faces now.

Writing for the majority, Judge Motz ordered the trial judge in the case to issue a writ of habeas corpus directing the Pentagon “within a reasonable period of time” to do one of several things with Mr. Marri. He may be charged in the civilian court system; he may be deported; or he may be held as a material witness; or he may be released.

“But military detention of al-Marri,” Judge Motz wrote, “must cease.”

Prediction: Whatever is done with al-Marri, the public will never get a close look at him.

Update: More details from Balkinization.

Tangled Webs

More evidence that Iraq is FUBAR: Juan Cole writes,

Remember all that Bush administration bluster against Sudan? Turns out that the CIA is using Sudanese spies against the Iraqi guerrillas. Bush sees no enemies among the oil states, only opportunities to be exploited. Most Americans don’t realize that Bush has also de facto deployed Iran-trained Badr Corps fighters against the Sunni Arabs in Iraq, as well. So Iran and Sudan are the great bogeymen in Bush rhetoric, but the pillars of his Iraq policy in reality.

The Badr Corps is the militia of the Supreme Council for Islamic Revolution in Iraq (SCIRI), which recently changed its name to Supreme Islamic Iraqi Council. Whatever its name is, the organization was formed (with help from Iran) during the Iran-Iraq War in the early 1980s. The current leader of the organization is Abdul Aziz al-Hakim, who was recently in the United States for treatment for lung cancer.

It’s hard to tell from news stories exactly what’s playing out between the Badr Corps and the U.S. military. Way back in 2004 the Iraqi “provisional” government announced that the Badr Corps and some other militias had agreed to disband. They didn’t. Nowadays the Badr Corps has been taking on the Mahdi Army of Muqtada al-Sadr, who is a worse bad guy from U.S. perspective than the Badr Corps. On the other hand, Juan Cole wrote in January,

One scenario you could imagine is that Iran was sending some aid and weaponry to the Peshmerga on condition it be shared with the Badr Corps paramilitary of the Shiite Supreme Council for Islamic Revolution in Iraq. The US raided a compound of SCIRI leader Abdul Aziz al-Hakim recently and captured Iranian intelligence officials there, who had come to consult about the shape of the Iraqi government. …

… Although Bush keeps implying that Iran is supplying weapons and aid to US enemies in Iraq, the circumstantial evidence is that it was helping the two main US allies in Iraq with their paramilitary capabilities– Kurdistan and SCIRI. But it is likely that the money and weapons do bleed over into insurgent groups and have a destabilizing effect.

[Update: Michael Ledeen wants Joe Lieberman to be our next Secretary of State. Why does Michael Ledeen hate America?]

In his post today, Juan Cole continues,

That is why Senator Joe Lieberman’s call for aggressive air strikes on Iran are unlikely to eventuate. Bush needs Abdul Aziz al-Hakim of the Supreme Islamic Iraqi Council in order to avoid immediate and complete defeat in Iraq, and SIIC is very, very close to Iran. Lieberman doesn’t seem to understand, by the way, that Iraqi Shiites would mind the US bombing their coreligionists and would probably massacre the entire British garrison in Basra as well as interdict US fuel convoys to the north from Kuwait and Basra. His irresponsible warmongering would get a lot of US troops killed for no good reason. One only hopes he isn’t talking this way primarily for the purposes of Israeli PM Ehud Olmert’s rightwing government; he just met with Olmert and: “The two also discussed U.S. policy toward Iraq and the West’s capabilities for dealing with the Iranian threat.” If Lieberman and Olmert want to start another war, they should please do it themselves and leave American servicemen out of it.

Well, yes. But the point is that one of our chief allies against Sunni insurgents in Iraq is a Shia militia with ties to Iran.

It gets better. John Burns and Alissa Rubin write in today’s New York Times that the U.S. is also forming alliances with Sunni insurgents.

With the four-month-old increase in American troops showing only modest success in curbing insurgent attacks, American commanders are turning to another strategy that they acknowledge is fraught with risk: arming Sunni Arab groups that have promised to fight militants linked with Al Qaeda who have been their allies in the past.

American commanders say they have successfully tested the strategy in Anbar Province west of Baghdad and have held talks with Sunni groups in at least four areas of central and north-central Iraq where the insurgency has been strong. In some cases, the American commanders say, the Sunni groups are suspected of involvement in past attacks on American troops or of having links to such groups. Some of these groups, they say, have been provided, usually through Iraqi military units allied with the Americans, with arms, ammunition, cash, fuel and supplies.

American officers who have engaged in what they call outreach to the Sunni groups say many of them have had past links to Al Qaeda in Mesopotamia but grew disillusioned with the Islamic militants’ extremist tactics, particularly suicide bombings that have killed thousands of Iraqi civilians. In exchange for American backing, these officials say, the Sunni groups have agreed to fight Al Qaeda and halt attacks on American units. Commanders who have undertaken these negotiations say that in some cases, Sunni groups have agreed to alert American troops to the location of roadside bombs and other lethal booby traps.

But critics of the strategy, including some American officers, say it could amount to the Americans’ arming both sides in a future civil war.

Iraqis must think Americans are the dumbest SOBs on the planet. Recently Peter Harling and Joost Hiltermann wrote for Le Monde diplomatique:

Baghdad’s relative calm is mostly the result of the ability of violent players to preempt the plan and neutralise much of its sting. This is true of both Sunni insurgent groups and Shia militias tied to the government. Followers of Shia militia leader Muqtada al-Sadr have gone to ground, waiting for the storm to pass and allowing US forces to go after Sunni insurgents.

Sunni insurgents responded in two ways, depending on their affiliation. Key commanders of patriotic groups (as they call themselves) withdrew from Baghdad with their heavy weaponry in anticipation of large-scale cordon-and-search operations. They left nominal forces in place to avoid giving the impression of retreat and defeat. Residents in some Sunni districts report that insurgents still roam at will, untouched (indeed, unnoticed) by US military operations, issuing permits and claiming protection money. They melt away when their district’s turn comes.

Even as the Bush administration unveiled its plan, jihadists linked to al-Qaida in Iraq opted to intensify their trademark suicide attacks, announcing a martyr campaign to create a bloodbath in Baghdad. True to its word, the group took credit in February for the largest number of car bombs ever, and the pace has hardly slackened since. Part of al-Qaida’s plan, besides foiling any US sense of progress, is to draw the Sadrist Mahdi Army out into the open and expose it to US attack. Both sides would like US forces to do their dirty work for them.

(Joost Hiltermann is deputy program director for the Middle East and North Africa with the International Crisis Group in Amman; Peter Harling is the organization’s senior analyst based in Damascus.)

Aren’t we clever? But Joshua Partlow and John Ward Anderson write in today’s Washington Post that another of our smart little schemes is falling apart:

A tribal coalition formed to oppose the extremist group al-Qaeda in Iraq, a development that U.S. officials say has reduced violence in Iraq’s troubled Anbar province, is beginning to splinter, according to an Anbar tribal leader and a U.S. military official familiar with tribal politics.

In an interview in his Baghdad office, Ali Hatem Ali Suleiman, 35, a leader of the Dulaim confederation, the largest tribal organization in Anbar, said that the Anbar Salvation Council would be dissolved because of growing internal dissatisfaction over its cooperation with U.S. soldiers and the behavior of the council’s most prominent member, Abdul Sattar Abu Risha. Suleiman called Abu Risha a “traitor” who “sells his beliefs, his religion and his people for money.”

Abu Risha, who enjoys the support of U.S. military commanders, denied the allegations and said the council is not at risk of breaking apart. “There is no such thing going on,” he said in a telephone interview from Jordan.

This war’s supporters in the U.S. conceptualize it as a spaghetti-western shoot-’em-up between good guys and bad guys. The reality is, um, different.

Update: On the other hand, there are always handwringers