Conservatives join liberals to oppose anti-terror policy


Thu, Dec 14, 2006 - Page 7

It is not every day that conservative lawyers Steven Calabresi and Richard Epstein agree with Clinton administration attorney general Janet Reno or former American Civil Liberties Union lawyer Burt Neuborne.

Yet the conservatives joined their outspoken liberal colleagues on Tuesday in arguing that an immigrant held as an enemy combatant has a right to seek his freedom in court -- another instance in which the US President George W. Bush administration's anti-terror policies have united libertarians and liberal Democrats.

Like the fight over warrantless wiretapping, data mining and the Patriot Act, the issue of how to handle terrorism suspects has divided conservatives and attracted criticism from some within the Republican Party.

Twenty-nine law school professors from around the US filed a legal brief on Tuesday with the 4th US Circuit Court of Appeals in Richmond, Virginia, arguing that the government's treatment of suspected al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri was unconstitutional.

It is no surprise that law school deans Harold Koh of Yale and Laurence Tribe of Harvard signed the brief. Both are staunch Democrats and vocal critics of the Bush administration.

But Calabresi is the former Reagan administration adviser and speechwriter for former vice president Dan Quayle who helped found the conservative legal group the Federalist Society. Epstein's interpretation of the Constitution and his legal critiques of Democratic policies have made him a favorite among some conservatives.

Epstein said there is a lesson to be learned by the strange bedfellows made by the president's anti-terrorism politics.

"It shows the phrases `conservative' and `libertarian' have less overlap than ever before," said the University of Chicago law professor and Federalist Society member. "This administration has lost all libertarians on all counts."

In June, the Supreme Court said the Bush administration's handling of detainees violated US and international law. Bush then pressed for -- and obtained -- a new law that he said would help the government prosecute terrorists.

The Military Commissions Act allows the military to hold detainees indefinitely and strips them of the right to challenge their imprisonment in US courts. The Justice Department defends the law as a constitutional and necessary tool to combat terrorism.

"The question here is not one of political perspective but of law," Justice Department spokeswoman Kathleen Blomquist said on Tuesday. "The district court found al-Marri to be an enemy combatant and dismissed his habeas petition."

If al-Marri wants to challenge that determination, Blomquist said, then he can challenge the determination before a Washington appeals court.

Some conservatives say the president must have the power to act in times of war and that detaining enemy combatants is the only way to ensure they won't return to the battlefield. Supporters of the law say the detainees are more like prisoners of war than criminal defendants.

Civil rights groups and conservatives with a libertarian viewpoint see the law as a government infringement on personal freedom.

"This involves the executive branch changing the rules to avoid challenges to its own authority," Koh said on Tuesday.

Epstein, who said he regards Koh as "mad on many issues," said the al-Marri case is "beyond the pale."

"They figured out every constitutional protection you'd want and they removed them," Epstein said.