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News Analysis: They Have Met The Enemy, And He Is Us

News Analysis: They Have Met The Enemy, And He Is Us

Forgive the paraphrase of cartoonist Walt Kelly, but recent events in the Fourth Circuit Court of Appeals have brought the concept of "enemy" a few steps closer to home.

But first, a quote from an American Family Assn. "news" story from October, 2003:

"Pornography, a pervasive international problem, has exploded in the U.S. over the past two years. Jan LaRue of Concerned Women for America says that is partly because the porn industry is taking advantage of the 9-11 terrorist attacks to expand its productivity... LaRue feels the people who produce, promote, and profit from pornography are themselves carrying out a sort of terrorist attack on America. The pro-family activist says the porn industry poses a grave threat to the nation and its future. 'In our estimation, this is a form of domestic terrorism because it is taking our culture into the sewer, and millions of children along with it,' she says."

Attorney LaRue, a decade-plus veteran of the Religious Right's anti-porn wars, has tossed off many such comments about the threat caused by producers of sexually explicit content, but recent developments in the "war on terror" may wind up putting some teeth into her words.

On Jan. 31, the Fourth Circuit heard argument regarding the status of Ali al-Marri, the only person currently being held as an "enemy combatant" on the American mainland; the rest are in Guantanamo or in secret CIA prisons in other parts of the world.

Al-Marri, a citizen of Qatar who arrived in the U.S. with his wife and five kids – and a student visa – on Sept. 10, 2001 to attend Bradley University in Peoria, Ill., was arrested in December of that year ostensibly because he was a material witness regarding the Sept. 11, 2001 World Trade Center/Pentagon attacks. He was later also charged with several counts of making false statements and credit card fraud, to all of which al-Marri pleaded not guilty.

However, before al-Marri could stand trial for those allegations, President Bush signed an executive order in June 2003 declaring that al-Marri was an enemy combatant, although al-Marri had never been seen on a battlefield anywhere.

But with al-Marri's new status, he was transferred from federal custody to the Navy brig in Charleston, S.C., where he has remained ever since.

Events, however, continued to swirl around al-Marri, not the least of which was Bush's signing, on Oct. 17, 2006 of the Military Commissions Act of 2006, which barred all non-citizens – and particularly enemy combatants – from invoking the constitutional right of habeas corpus – literally, "produce the body" – which allows citizens to petition the federal courts if they feel that their constitutional rights to such things as a fair trial, humane treatment in prison, et cetera, have been violated

The Military Commissions Act would seem to indicate that the anti-habeas provision applied only to non-citizens, and even the New York Times, in an Oct. 19 editorial, claimed, "This law does not apply to American citizens, but it does apply to other legal United States residents.

They were wrong. Other sections of the Act state that "Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission," and "Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission ... may direct."

One might question whether a citizen of Qatar has an "allegiance or duty to the United States," but if anyone does, it would be a U.S. citizen – in fact, probably very few except U.S. citizens.

And the fact that such a person "shall be punished as a military commission ... may direct" means that that person has been declared, officially or unofficially, an enemy combatant, because aside from U.S. military personnel, only they and prisoners of war get tried before military commissions – and legitimate prisoners of war have certain rights under the Geneva Conventions, such as being afforded the services of an attorney and being able to confront the witnesses and evidence against them. Enemy combatants, as far as the government is concerned, have none of those rights.

As for al-Marri, his family did manage to get him a lawyer – Jonathan Hafetz of the Brennan Center for Justice – and through that attorney, al-Marri has challenged his status as an enemy combatant and the consequence of that status, that al-Marri could be held indefinitely in that Navy brig without ever seeing the inside of a courtroom.

Since there are no criminal charges currently pending against al-Marri, his case has come before a three-judge panel of the Fourth Circuit, which is the lowest level court with the power to deal with his complaints.

Or do they have that power? The Bush administration's attorney in the case, Assistant Solicitor General David B. Salmons, took the position, in the case's first hearing on Jan. 31, that it was Congress' 2001 authorization to use force in Iraq which gave Bush the power to declare someone to be an "enemy combatant," subject to indefinite detention, but under questioning from two of the three judges on the panel, it came out that the administration's actual position is that anyone can be tarred with that status.

"What would prevent you from plucking up anyone and saying, 'You are an enemy combatant?'" Judge Roger L. Gregory asked Salmons.

As to al-Marri, Salmon earlier had cited the 2001 Authorization for Use of Military Force (AUMF), which he claimed allowed Bush to brand someone with enemy combatant status during wartime after – at least in al-Marri's case – "an extensive multi-agency review process," but without the judicial system having any say in the matter.

However, he added, "A citizen, no less than an alien, can be an enemy combatant."

That comment got the attention of not only Judge Gregory, but also of Judge Diana Gribbon Motz, who's no stranger to enemy combatant cases. She had been on the Fourth Circuit panel that handled the case of Hamdi v. Rumsfeld, where the majority found that Hamdi was not entitled to an evidentiary hearing on whether he was an enemy combatant, and in which Judge Motz penned a blistering dissent:

"I fear that [this court] may also have opened the door to the indefinite detention, without access to a lawyer or the courts," the judge wrote, "of any American citizen, even one captured on American soil, who the Executive designates an 'enemy combatant,' as long as the Executive asserts that the area in which the citizen was detained was an 'active combat zone,' and the detainee, deprived of access to the courts and counsel, cannot dispute this fact."

But while the Supreme Court, which heard argument in what became Rumsfeld v. Hamdi in April, 2004, didn't exactly agree with Judge Motz, they did remand the case to the Fourth Circuit for further consideration – which remand might have had something to do with the Navy releasing Hamdi before that hearing took place. One might think, "Score one for the good guys," but here the government was, again arguing not only that an enemy combatant didn't have a right to a hearing, but that anybody could be designated as an enemy combatant.

"Is there any evidence that al-Marri is involved with the Taliban?" Judge Motz asked.

Salmon said there wasn't.

"Or any other nation-state?"

No, again – "But we are at war with al-Qaida," Salmons added.

"But there is no nation of al-Qaida," Judge Motz retorted. "Al-Qaida is everywhere."

Still not satisfied, Judge Motz pressed her point:

"Can the president declare any member of Hamas [the Palestinian Islamist organization] an enemy combatant?"

"Yes," Salmons says, "That was this court's decision in Padilla."

For those with short memories, Jose Padilla was an American citizen arrested as a material witness in connection with the Sept. 11 attacks, and later declared an enemy combatant after Attorney General John Ashcroft charged that Padilla had been working with al-Qaida to smuggle a nuclear bomb into the U.S.. Padilla had filed a petition of habeas corpus with the Southern District of New York, claiming that his detention violated his constitutional rights as a citizen, but the Supreme Court decided that Padilla had filed his petition with the wrong court and that the Supremes therefore lacked jurisdiction to hear the case.

In their opinion in Padilla, however, the Court stated, "The President also made several factual findings explaining his decision to designate Padilla an enemy combatant. Based on these findings, the President concluded that it is 'consistent with U. S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant'."

But Salmons' reference to the Padilla decision didn't satisfy Judge Motz.

"There's no doubt after Hamdi that the president has the right to detain an enemy combatant," Judge Motz said. "But what I don't understand is, how do you make that determination? When I call someone an ostrich, I look in the dictionary for a definition. But what did the president look to in determining whether he was an enemy combatant?"

Salmons answered that it was the AUMF which authorized Bush to make the determination. But Judge Motz was clearly worried that there was no limit to that claimed presidential power, and asked a series of hypothetical questions about who could be so designated and under what circumstances.

"Suppose the head of PETA [People for the Ethical Treatment of Animals] was in France and planning to break into the French banking industry," she asked. "Does the French government have the right to declare war on PETA? Can they declare him an enemy combatant? Could the president declare war on PETA?"

Salmons responded that the question was unrealistic, but he refused to categorically reject the idea.

"The representative of PETA can sleep well at night," Salmons said, because the executive branch's determination of who is an enemy combatant is a careful one.

And that's where the problem lies for the adult industry – a problem that goes back to the very founding of the country.

"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." [Emphasis added]

John Adams, one of the founders of the United States and its second president, wrote that passage into the Massachusetts Constitution of 1780, and the admonition that the U.S. is a "government of laws and not of men" has been reiterated frequently in state constitutions and state and federal court decisions ever since. Its point is that in the U.S., the citizenry need not fear the whims of powerful politicians and others, because the laws will protect them.

However, despite intensive questioning by the Fourth Circuit panel, no clear (let alone legal) definition of an "enemy combatant" was expressed, and no limit as to who the president could declare to be an "enemy combatant" was stated by the Assistant Solicitor General of the United States. As things stand, under the AUMF and the Military Commissions Act, President Bush could declare anyone to be an "enemy combatant," and with the Supreme Court's denial of the habeas corpus right to enemy combatants, anyone so designated is way up shit's creek without a paddle.

All of which brings us back to Jan LaRue's 2003 epithet, that "the people who produce, promote, and profit from pornography are themselves carrying out a sort of terrorist attack on America." Clearly, adult industry members don't consider themselves to be "domestic terrorists" – but the adult industry doesn't have the ear of President Bush, nor of Attorney General Alberto Gonzales (who, by the way, doesn't think habeas corpus is even a constitutional right). Jan LaRue and her cohorts in the religio-conservative anti-porn movement do.

As things stand now, it's unlikely that President Bush will begin wholesale condemnations of porn stars and producers as "enemy combatants" anytime soon – but it's also abundantly clear that, as things stand now, he has claimed the power to do so, and the Supreme Court has supported him in that.

But such presidential largesse could change. For instance, one announced presidential candidate for '08, Sam Brownback (R-ShiningCityOnTheHill), already believes that at least some adult performers are trafficked in unwillingly from other countries, and who knows? Those (non-existent) trafficked women could be al-Qaida terrorists!

The fact is, this administration and its supporters don't like explicit sexuality in any form, and suppression of displays of sexuality is one of their primary agendas. A Republican presidential victory (or election theft) in '08 could mean more trouble for the adult industry than most of its members can possibly imagine.

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Mark Kernes

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