The administration continues to push the legal envelope beyond reason on detainees, and the federal judiciary continues to smack the administration down.
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.
“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.”
“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”
The case dealt with Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant. He was taken into custody in December 2001 at his Peoria home, where he lived with his wife and five children while studying computer science at Bradley University. al-Marri, whom the administration considers a possible al Qaeda sleeper agent, has been held in solitary confinement in a Navy brig for the last four years.
The Bush administration argued that under the Military Commissions Act, the U.S. could hold al-Marri indefinitely, without evidence, and he had no right to due process.
In a 2-1 ruling, the 4th U.S. Circuit Court of Appeals, hardly the most progressive circuit in the Union, forcefully rejected the administration’s argument.
What on earth was the dissenting judge thinking? You might be surprised.
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.”
Got that? al-Marri can be denied rights afforded to everyone in the U.S. criminal justice system because he’s the “type” of person who might be a terrorist. I shudder to think about the totalitarian mindset that leads to such a conclusion. (Hudson is a Bush appointee.)
Thankfully, the majority knew better. As the NYT noted, “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.”
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.
“But military detention of al-Marri,” Judge Motz wrote, “must cease.”
Let’s also not forget that this is the second significant court defeat for the administration on illegal detentions in as many weeks.
Bush may have an Orwellian sense of criminal justice, and congressional Republicans may be willing to follow along blindly, but at least there’s a judiciary that still has some appreciation for the rule of law.