Be Careful for What You Wish For

Congratulations this morning to Ali Saleh Kahlah al-Marri, apparently the last remaining "enemy combatant" being held on American soil. He won a big victory yesterday from the 4th U.S. Circuit Court of Appeals, which declared that the government had no legal right to continue to hold him in military confinement. And how does he get to celebrate? He'll probably now be transferred back into civilian custody to face terror charges in a federal court.

But al-Marri's victory is not nearly as sweeping as civil libertarians would have you believe. First, there is a decent chance that the full 4th Circuit will agree to hear the appeal and overturn yesterday's decision. Second, even if this does not occur, it is possible that the executive branch will try to place al-Marri into the combatant review process already underway at Guantanamo Bay, a move that might forestall his legal challenges. And third, Congress always has the power to "fix" the problems the judges identified.

Congratulations are also in order this morning for Durham (North Carolina) District Attorney Michael Nifong and Attorney General Alberto R. Gonzales.

Nifong today finally gets his day in court before a disciplinary commission to rebut charges that he engaged in gross misconduct in the Duke lacrosse case. A guy whose professional career already is over as a practical matter-- really, how is he going to be able to practice law again in that state or anywhere else? -- somehow cares about whether he is disbarred?

I couldn't care less what happens to Nifong. All I want to know -- and apparently he will testify on his own behalf -- is what he was thinking when he endorsed the accuser in the case to the extent that he did. Why was he so quick to support her and dismiss the stories offered by the students? Why was he so vocal early on in the case? Why was he so reluctant to accept the realities of the investigation -- which showed so much contradictory evidence? If Nifong can answer those questions, then as far as I am concerned he can ride off into the sunset and go onto the lecture circuit educating young prosecutors about what they shouldn't do in a high-profile case.

And finally, regarding Gonzales, congratulations are due not just to him but also to President Bush and the nearly four dozen cowardly Republican lawmakers who were wiiling and able yesterday to block a "no confidence" vote against Gonzales in the Senate. What a great line that'll make in the attorney general's resume some day: "Avoided no-confidence vote in Senate thanks to shameless GOP fillibuster."

The result in the Senate is sickening but not entirely unpredictable. From today's New York Times: "Republicans who rejected the proposal offered little defense of Mr. Gonzales, but criticized the resolution as a politically motivated stunt and a waste of the Senate's time. 'If I were president, I would have asked Alberto Gonzales to resign as attorney general,' George V. Voinovich, Republican of Ohio, said in a statement. But he said, 'Today's vote does nothing to rectify the current problem or ensure it doesn't happen again.'"

And from the Los Angeles Times: "Democrats vowed to continue their investigation into whether Gonzales, in tandem with the White House, had politicized hiring decisions and various investigations at the Justice Department in ways that would boost Republicans. There were signs that Democrats were on the verge of taking that investigation to a new level, possibly by issuing subpoenas to the White House for documents and testimony of such figures as political operative Karl Rove. But the no-confidence vote suggests that the Democrats do not have the political might to force the issue."

By Andrew Cohen |  June 12, 2007; 7:46 AM ET
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Did you read the decision? If it stands, Military detention cannot be "fixed" by congress. Too many incomvenient old SC decisions in the way...not to mention the Magna Carta or the Declaration of Independence....
But the 4th might reverse, and the SC I'm looking to see an increase in militia memberships

Posted by: Pogo | June 12, 2007 09:34 AM

Very much like your ironic use of "congratulations".

Posted by: Brad | June 12, 2007 11:25 AM

What happened to the commenters? Have they suddenly decided Cohen is boring?

I say "Thank goodness there's no longer a Rethuglican Congress." Because if there was, it would have passed a law allowing the president to strip anyone of their U.S. citizenship if they were designated an unlawful enemy combatant.

Presto! Not a citizen? You have no rights. The al-Marri problem is solved. Be afraid, very afraid, of what President Vader and the Boy Chimp might do if they decide to use this approach.

Posted by: Bukko in Australia | June 12, 2007 10:47 PM

Heavens no, definitely not boring!

Posted by: Fred | June 14, 2007 11:20 AM

So why the drop-off, Fred? I thought Cohen's latest was a thought-provoking one. But 20 times as many people yakked off about Paris Hilton.

Froomkin still rules, tho.

Posted by: Bukko in Australia | June 15, 2007 07:03 AM

Can't blame Andrew that some like tabloid type stories;still, many do respond on substantive issues. I wouldn't make too much of it. People can't be writing in constantly.

Posted by: Fred | June 18, 2007 06:51 PM

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