Tuesday, December 12, 2006 · Last updated 11:41 p.m. PT
WASHINGTON -- It's not every day that conservative lawyers Steven Calabresi and Richard A. 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 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 Bush administration's anti-terrorism policies have united libertarians and liberal Democrats.
Like the fights 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 country filed a legal brief Tuesday with the 4th U.S. Circuit Court of Appeals in Richmond, Va., arguing that the government's treatment of suspected al-Qaida sleeper agent Ali Saleh Kahlah al-Marri was unconstitutional.
It's 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 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's 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 U.S. and international law. Bush then pressed for, and got, a new law that he said would help the government prosecute terrorists.
The Military Commissions Act allows the military to hold detainees indefinitely and denies them the right to challenge their imprisonment in U.S. 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 Tuesday night. "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 Tuesday. "Serious legal scholars, regardless of political bent, find what the government did inconsistent with any reasonable visions of the rule of law."
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.
Al-Marri is the only person designated as an enemy combatant known to be held in the United States, where immigrants normally have the right to use U.S. courts to question the legality of their detention.
Al-Marri was arrested in 2001 while studying in the United States. He had faced criminal charges until authorities designated him an enemy combatant and ordered him held at a naval base in South Carolina.
The Richmond appeals court is considering al-Marri's case. Reno recently filed a brief in the case, arguing that the government's argument could set a dangerous precedent.
Jonathan Hafetz, an attorney with the Brennan Center for Justice who is handling the al-Marri case, said it brings up issues about what the framers of the Constitution intended - something libertarians and judicial conservatives often look to.
The al-Marri case, along with two cases before a federal appeals court in Washington, are likely bound for the Supreme Court.
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