5th amendment, we hardly knew ye

Magorn, a diarist over at dKos, posted a story last night that made me go “wow”—not just because of the striking content, but because almost no one seems to have paid this any attention.

Last Tuesday’s Washington Post (yes, last Tuesday’s) ran a story on page A16 about the case of Ali Saleh Kahlah al-Marri:

A federal magistrate judge yesterday recommended rejecting a petition by the sole remaining enemy combatant being held on U.S. soil, finding that Ali Saleh Kahlah al-Marri had not offered persuasive evidence rebutting the government's allegations against him.

Marri, a Qatari national, has been held in a military brig in South Carolina since being accused in June 2003 of being an al-Qaeda "sleeper" agent sent to the United States to mount attacks after the Sept. 11, 2001, jetliner hijackings. Marri has filed a petition in federal court alleging that he is being held unlawfully and deprived of rights of due process.

But in a sharply worded 16-page report, Magistrate Judge Robert C. Carr of the U.S. District Court of South Carolina upbraided Marri for declining to address detailed allegations contained in a declassified government report outlining his alleged links to al-Qaeda.

"The petitioner's refusal . . . is either a sophomoric approach to a serious issue, or worse, an attempt to subvert the judicial process and flout due process," Carr wrote. "The petitioner has squandered his opportunity to be heard by purposely not participating in a meaningful way."

(emphasis mine)

As Magorn makes clear, it’s a right, guaranteed by the Constitution, to remain silent in the face of charges—it is the government’s responsibility to charge you and prove that you are guilty before they permanently deprive you of your liberty. Marri has neither been charged nor tried in open court; he is simply being held indefinitely, inside the United States, as a so-called “enemy combatant.” (Marri has one of the messiest wiki pages I’ve seen, so read this link for background only.)

Maybe this story has gotten short shrift because the magistrate in this case has only an advisory role, and his ruling is still subject to review by a higher-ranking judge, but Judge Carr is an officer of the court, and is duty-bound to uphold the Bill of Rights. . . which, the last time I checked, still included the Fifth Amendment.