If I were able to blog full-speed, I would be writing reams about yesterday's court decision, which was reported by Adam Liptak of the New York Times as follows:
In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.As Carol D. Leonnig of the Washington Post reported,
“To sanction such presidential authority to order the military to seize and indefinitely detain civilians," Judge Diana Gribbon Motz wrote, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”
Civil libertarians who championed Marri's case had warned that if the administration prevailed in its argument, the military could next round up U.S. citizens and jail them without trial. The court appeared to agree.Back to Adam Liptak of the NYT:
"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found.
“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”The Jose Padilla saga is a full indictment of the so-called GWOT and our so-called legal system, all by itself. This decision will do nothing for him. And neither will it effect the goings-on at Gitmo, much less the clandestine CIA torture facilities that we still don't know much about.
The ruling was handed down by a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., in the case of Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant.
Mr. Marri, whom the government calls a sleeper agent for Al Qaeda, was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.
He has been held for the last four years at the Navy Brig in Charleston, S.C.
Judge Motz wrote that Mr. Marri may well be guilty of serious crimes. But she said that the government cannot circumvent the civilian criminal justice system through military detention.
Mr. Marri was charged with credit-card fraud and lying to federal agents after his arrest in 2001, and he was on the verge of a trial on those charges when he was moved into military detention in 2003.
The government contended, in a partly declassified declaration from a senior defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.
Two other men have been held as enemy combatants on the American mainland since the Sept. 11 attacks. One, Yaser Hamdi, was freed and sent to Saudi Arabia after the United States Supreme Court allowed him to challenge his detention in 2004.
The other, Jose Padilla, was transferred to the criminal justice system last year just as the Supreme Court was considering whether to review his case. He is now on trial on terrorism charges in federal court in Miami.
The decision does not appear to affect the rights of men held at the American naval base at Guantanamo Bay, Cuba. Judge Motz stressed that the court analysis was limited to those who have substantial connections to the United States and are seized and detained within its borders.Henry E. Hudson needs to wash his brain out with soap. There is no provision anywhere in our Constitution or in any other other civilized legal system that gives the president -- or anyone else -- the authority to detain people indefinitely without charge or hearing, based on anything -- let alone an uncorroborated accusation that the person being held is of a certain "type".
A dissenting judge in today’s decision, Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, wrote that President Bush “had the authority to detain al-Marri as an enemy combatant or belligerent” because “he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States.”
Jonathan Hafetz, the litigation director of the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law and one of Mr. Marri’s lawyers, said of the court’s decision: “This is landmark victory for the rule of law and a defeat for unchecked executive power. It affirms the basic constitutional rights of all individuals — citizens and immigrants - in the United States.”Let's not get carried away, Jonathan. It is a step in the right direction, but it is a very minor step -- one sure to be appealed forever and a day -- and it doesn't really guarantee anything, especially given the Chimp administration's track record when it comes to compliance with legal strictures.
Writing for the majority, Judge Motz ordered the trial judge in the case to issue a writ of habeas corpus directing the Pentagon “within a reasonable period of time” to do one of several things with Mr. Marri. He may be charged in the civilian court system; he may be deported; or he may be held as a material witness; or he may be released.We'll see how long it takes for them to get around to complying. Who decides what constitutes "a reasonable period of time"? The Pentagon itself?
“But military detention of al-Marri,” Judge Motz wrote, “must cease.”
And what happens if the Pentagon fails to issue such a writ "within a reasonable period of time"? I'm certainly not planning to hold my breath.
For a much more thorough treatment of this case and the issues it raises, please visit Chris Floyd's excellent site, Empire Burlesque, and read what he has to say about this. I'll get you started:
Now we've got something going on. Now there's a little something to play for. This ruling draws a clear line in the sand on one of George W. Bush's most egregious abuses of the illegitimate power he was given (by the courts) in 2000: his self-proclaimed, arbitrary, unchecked right to designate anyone he pleases an "enemy combatant" and keep them locked up indefinitely in military detention.Please go read the rest. Click a few links, too.
Now it seems certain that the case will reach the Supreme Court, and we will have a clear-cut answer at last: Are we still a semblance of a Republic, where our liberties are inalienable – or is our freedom simply the "gift" of an autocrat (elected or otherwise), who can bestow it or take it away at his own will?
No problem; you can thank me later.