Pentagon Learns About the Sixth Amendment

The Pentagon is learning that things work differently here in the United States than they do in Iraq. In this country, when the judiciary issues an order, the Pentagon is required to obey it. That’s why the government is now permitting Ali Saleh al-Marri to meet with his attorney as part of his habeas corpus proceeding in federal district court in South Carolina.

Al-Marri is one of three “enemy combatants” in the “war on terrorism” whom the Pentagon is holding in its military brig in South Carolina. The other two are Yaser Hamdi and Jose Padilla, whose cases were recently adjudicated in the U.S. Supreme Court. The Pentagon has prohibited al-Marri from consulting with his attorney, much as it did with Hamdi and Padilla and, for that matter, as it is doing with Saddam Hussein in the criminal proceedings that have recently been initiated against him by the U.S.-installed “temporary” regime in Iraq.

As I wrote more than a year ago in my article “Crossing the Rubicon,” al-Marri was initially indicted in federal district court, where the Justice Department was prosecuting him for terrorism. Shortly before the trial was to begin, the Justice Department secured a dismissal of the indictment and turned him over to the custody of the Pentagon for indefinite detention as an “enemy combatant” in the “war on terrorism.”

To belabor the obvious, if the federal prosecution of al-Marri had proceeded, he would have been entitled to all the rights and guarantees recognized in the Constitution and Bill of Rights, including being informed of the charges against him, compulsory process of witnesses, cross-examination of adverse witnesses, assistance of counsel, and a jury trial. Since he would also have been presumed innocent under our system of law, the government would have had the burden of proving his guilt beyond a reasonable doubt. If the jury had acquitted him, as juries recently did in federal terrorism cases brought in Detroit and Boise, he would have walked away from the federal courtroom a free man.

By removing al-Marri from the jurisdiction of the federal court on the eve of his trial and placing him into military custody as an “enemy combatant,” the Justice Department and the Pentagon, working together, effectively hijacked our criminal justice system and sabotaged our constitutional order. The joint scheme obviously constitutes a dangerous and ominous sham that enables the military to punish people against whom the civil authorities lack the evidence to convict of a crime. Don’t forget that under its “enemy combatant” system, the Pentagon claims the omnipotent power to hold terrorist suspects, both Americans and foreigners, indefinitely and impose punishments on them without any judicial review whatever and without having to comply with the due-process-of-law protections provided in the Constitution and Bill of Rights.

The Pentagon also claims the power to deny its detainees, both foreign and American, the right to meet and consult with their attorneys. Fortunately, however, the Supreme Court put the quietus on that position in the Hamdi case, at least insofar as detainees here in the United States are concerned. The Court’s language was clear and unequivocal:

Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.

Why did the Framers consider assistance of counsel sufficiently important to include it in the Bill of Rights? The Supreme Court explained in the 1938 case of Johnson v. Zerbst,

[The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. Omitted from the Constitution as originally adopted, provisions of this and other Amendments were submitted by the first Congress convened under that Constitution as essential barriers against arbitrary or unjust deprivation of human rights. The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not “still be done.”

While the Supreme Court’s recent ruling in the Hamdi case related specifically to Hamdi himself, it is settled law in America that the government is required to apply the constitutional principles set forth in Supreme Court decisions in same or similar cases. Thus, when the Court ordered that Hamdi be accorded counsel, it was effectively ordering the Pentagon to permit other detainees similarly situated, such as al-Marri, to be accorded the same right. That is undoubtedly why the Justice Department overruled the Pentagon yesterday and advised al-Marri’s attorney that he could meet with his client after all.

That’s the way things work here in the United States. Of course, that’s not the way things work in Iraq, where the Pentagon is still prohibiting Saddam Hussein from meeting with his attorneys.

Mr. Hornberger is founder and president of The Future of Freedom Foundation. Send him email.