Ali al-Marri, the last enemy combatant held in the United States (the other 240+ are still in Gitmo . . . for now), has been transferred to the civilian justice system and may make his first court appearance on his indictment today. I’d note that Osama bin Laden has been under indictment by the Justice Department for some eleven years, but the “defendant” never seems to show up for his arraignment.
I wonder if al-Marri will demand to be sent back to the brig once he realizes that, thanks to last week’s unbelievable DC Circuit decision in al Odah v. United States, he’d now actually get better discovery rights of access to classified U.S. national-defense information as an alien enemy combatant detainee than he will as an American civilian defendant. This is the topic of my column today, called, “The War Is Over.” A sample:
The courts no longer see themselves as part of the U.S. government. The U.S. government, like the American people, is at war — or at least it has been. The courts are not part of that effort. They are spectator turned critic turned detached manager. Their self-perception is that of a shadow outside and above the U.S. government, serving not a Constitution of limited powers but “the law” — an ever-evolving, all-encompassing corpus of cosmic justice. The courts are not a forum to which Americans come to vindicate their rights against government; they are an overlord available to humanity to lodge its grievances against the American people and their government.