Tuesday, June 12, 2007

What Is a Victory for Liberty and Due Process?

If a man is found to have been illegally imprisoned, without due process of law, and is released (or deported) after six or more years, is this a victory for the principle of liberty and due process? Would such a victory be more meaningful -- more "real" -- if it took place during the "war" on terror, perhaps even during its initial phases, rather than, say, six years after such a "war" begins, perhaps even only after such a war ends? Can we be proud of a judicial system that vindicates the fundamental principle of no deprivation of liberty without due process of law (notice of charges, trial, jury, right to counsel, right to submit evidence, right to challenge adverse evidence, all of that) only years after such deprivations take place? Compare Al-Marri v. Wright, 2007 U.S. App. LEXIS 13642 (4th Cir. June 11, 2007). See also Adam Liptak, Judges Say U.S. Can’t Hold Man as ‘Combatant’, NYTimes Online (June 12, 2007).

N.B. Mr. Al-Marri is not yet a free man. He may now be tried in a "civilian" (regular) court. He may be deported. The Fourth Circuit may grant a rehearing and reverse after en banc deliberation. The government may seek review in the Supreme Court. There are other possibilities.

If a court ever issues a final non-appealable judicial order for the immediate release of Mr. Al-Marr, will the goverment refuse to comply with the order? What then?

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