TALKING TO AMERICANS, PART IV

AL-MARRI AND LITHWICK SPEAK: CONGRESS LISTEN

Yesterday, the American press reported on the release of a decision in an American federal appellate court of a decision that found that the US government could not treat its own nationals, arrested within its borders within itw own militarized legal processes for terrorists. The decision may well be overturned but its value lies in the close analysis it performs of the problem and its implications for the existing, well -besieged system. The decision was called "Al-Marri." Dhalia Lithwick is a well recognized and insightful American popular legal writer who publishes in the on-line Magazine "Slate.' Lithwick managed to tease out principles and support the Al-Marri decision. I think both she and the Court hit on yet another message-- the responsibility of the US Congress to give the "sober thought" needed -now-- for reform

Thank you for this. Putting the decision in perspective for the rest of us can be as close to important as what the majority in the decision, itself, attempts to do. Rightly or wrongly, deftly or not, this Court has given Americans and others a frame of view that falls within the better analytical and within the best educational traditions of the judicial role.

But you identify, of course, another important dimension to this. You put it as the need for “...getting down to the business of crafting a legal regime based on clean rules...” In this respect perhaps al-Marri reaches beyond its individual analysis to lend lessons to others in the governing branches, situate elsewhere.

By definition, this “getting down,” cannot be left to Courts alone. This Executive, at least, is frozen. You observe of terrorist acts, “For almost six years .. nothing has happened...[in the face of this] insistence that there is simply no time for sober debate and tedious legal head-scratching become less credible every month...”

The Courts and the legal process, regardless of the breadth and depth of interventions and regardless of the weight of the resources invested in any individual litigation, are simply, practically, precluded from realistic access to the pool of data in the experience of government operations since 9/11. As much as they can stand as the protectors of both principles and individuals, the Courts can only be a well less than ideal mechanism for broad based legal policy review– even in the land that invented legal pragmatism.

So, if the Courts are hampered by their own limitations of process and resources and the Executive is frozen in accepting any need for reform, this policy role in the interim can only play out as a Congressional one– whatever that arm’s own limitations might be.

That, I suggest is the further lesson of al Marri– at least until there is the opportunity for review and thought by a new Executive – the only resort left for sober debate and tedious legal (or policy-) head-scratching can be that of Congress.

One hopes that the new, majority controllers of the Congressional process can, by default in how things seem to happen nowadays, begin to shift their big, albeit unwieldy resources to the close, comprehensive process of review and reform of the frozen legal aftermath of 9/11 that al-Marri and you so clearly identify.

And, by the way, isn’t this how the constitution’s Framers intended it to be?