sexta-feira, 5 de dezembro de 2008

Delimitando o poder de detenção do Presidente dos Estados Unidos

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Assunto: Justices Take Case on President’s Power to Detain
De: "Farlei Martins"
Data: Sex, Dezembro 5, 2008 23:21
Para: "Jose Ribas"
Prioridade: Normal
Opções: Ver cabeçalho completo | Ver Versão para Impressão | Baixar como um arquivo| Adicionar ao Livro de Endereços

The New York Time, notícia enviada pelo Prof. Farlei Martins, publica a seguinte matéria sobre o poder de detenção por parte do Presidente da Repúlica.
Justices Take Case on President’s Power to Detain
WASHINGTON — The Supreme Court on Friday agreed to decide the most
fundamental question yet concerning executive power in the age of terror:
Can the president order the indefinite military detention of people living
in the United States?

The case concerns Ali al-Marri, the only person on the American mainland
being held as an enemy combatant, at the Navy brig in Charleston, S.C. Mr.
Marri, a citizen of Qatar, was legally in the United States when he was
arrested in December 2001 in Peoria, Ill., where he was living with his
family and studying computer science at Bradley University.

Eighteen months later, when Mr. Marri was on the verge of a trial on credit
card fraud and other charges, President Bush declared him an enemy
combatant, moving him from the custody of the Justice Department to military
detention. The government says Mr. Marri is a Qaeda sleeper agent sent to
the United States to commit mass murder and disrupt the banking system.

The case, which will probably be argued in the spring, will present the
Obama administration with several difficult strategic choices. It can
continue to defend the Bush administration’s expansive interpretation of
executive power, advance a more modest one or short-circuit the case by
moving it to the criminal justice system.

In July, the United States Court of Appeals for the Fourth Circuit, in
Richmond, Va., issued a fractured decision in the case. In one 5-to-4
ruling, the court ruled that the president has the legal authority to detain
Mr. Marri.

But a second, overlapping 5-to-4 majority of the court ruled that he must be
given an additional opportunity to challenge his detention in federal court.
An earlier court proceeding, in which the government had presented only a
sworn statement from a defense intelligence official, was inadequate, the
second majority ruled.

The government had urged the Supreme Court to put off consideration of the
case, al Marri v. Pucciarelli, until the trial-court do-over was completed.

Two other men have been held as enemy combatants on the American mainland
since the Sept. 11 attacks. Rulings in their cases will inform the Supreme
Court’s treatment of Mr. Marri.

In 2004, in Hamdi v. Rumsfeld, five Supreme Court justices said Congress had
granted the president power to detain at least those enemy combatants
captured on the battlefield in Afghanistan, even if they are American
citizens, for the duration of hostilities there. But the detainee in that
case, Yaser Hamdi, was freed and sent to Saudi Arabia not long after the
court’s decision, which also allowed him to challenge his detention.

Based on the Hamdi decision, the Fourth Circuit in 2005 upheld the detention
of Jose Padilla, an American arrested at a Chicago airport. Although Mr.
Padilla was said to have ties to Al Qaeda, the Fourth Circuit decision
largely turned on his own activities on the battlefield in Afghanistan. Just
before the Supreme Court was to decide whether to hear his case for a second
time, Mr. Padilla was transferred to the criminal justice system and
convicted on charges related to terrorism last year.

In a recent brief, the government provided the justices with a sworn 2004
statement from Jeffrey N. Rapp, the defense intelligence official. The
statement, declassified in 2006, said that Mr. Marri had met with Osama bin
Laden and Khalid Shaykh Muhammed in the summer of 2001.

“Al-Marri offered to be an al Qaeda martyr or to do anything else that al
Qaeda requested,” Mr. Rapp said. The Qaeda officials told Mr. Marri, the
statement said, to leave for the United States and to make sure he got there
before Sept. 11.

The government’s brief said the Congressional authorization must have
intended to allow the detention of people like Mr. Marri and called a
contrary interpretation absurd. Such a reading, the brief said, “relies on
the assumption that when Congress authorized the use of military force to
respond to the Sept. 11 attacks, it did not intend to reach individuals
virtually identically situated to the September 11 hijackers.”

In a brief filed three weeks ago, lawyers for Mr. Marri, who has been held
without charge in isolation for more than five years, said the court should
not delay consideration of the case.

“Since the nation’s founding,” the brief said, “persons lawfully residing in
this country have correctly understood that they can be imprisoned for
suspected wrongdoing only if the government charges them with a crime and
tries them before a jury.”

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