Rossputin.com Rational Thinking About Our World

In an interesting an important case, the United States Court of Appeals for the Fourth Circuit (based in Richmond, VA) ruled 2-1 against the indefinite detention in a military prison of Ali Saleh Kahlah al-Marri.

You can read the entire decision, as well as the dissent at this link:
http://pacer.ca4.uscourts.gov/opinion.pdf/067427.P.pdf

You can read the Washington Post story on the decision here:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/11/AR2007061101135.html?

The case revolved around President Bush's "finding" that al-Marri was an enemy combatant, although he was arrested in America while here on a student visa, and was never accused of having been to or in Afghanistan or any other place where US soldiers were fighting, nor ever having taken up arms against America.

The court noted that it is well-established in American law that Constitutional protections apply to "persons", not just citizens. The Fifth and Fourteenth Amendments, for example, specifically discuss the protection of a "person".

Therefore, Constitutional protections apply to resident aliens as well as to citizens.

And if there is anything which our Constitution was designed to protect us against, it is the ability of the Executive Branch to deny individuals their liberty without due process.

Having read both the majority opinion as well as the dissent, I find them both well-reasoned and intellectually honest. But the majority's view is more compelling, particularly given that even in the face of serious enemies if we do not protect our most important principles then we have already lost.

It is important to note that the court specifically did not say al-Marri should go free. It said he should be tried in court and, if found guilty, severely punished. This was not a "soft on terrorists" verdict as I thought the Supreme Court's Hamdan decision was.

I'm sure many on the right will be very unhappy with this ruling, and the government will almost certainly appeal. But, while I disagreed with rulings giving Geneva Conventions protections to Al Qaeda operatives captured on the field of battle, I agree with this court's ruling that there is no Presidential authority to call anyone he chooses an "enemy combatant", and that there can be no such authority under any "normal" circumstances, and a state of war is not enough to give that authority.

I would suggest that it's well worth your time to read the following quotes from the decision, quotes which I believe represent some of the best understanding of American legal and political tradition, and the values which the United States truly represents.

We do not question the President’s war-time authority over enemy combatants; but absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. See Toth, 350 U.S. at 14 (“[A]ssertion of military authority over civilians cannot rest on the President’s power as commander-in-chief, or on any theory of martial law.”). 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. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.”

I find this paragraph from the decision compelling:

Of course, this does not mean that the President lacks power to protect our national interests and defend our people, only that in doing so he must abide by the Constitution. We understand and do not in any way minimize the grave threat international terrorism poses to our country and our national security. But as Milligan teaches, “the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.” Milligan, 71 U.S. at 121. Those words resound as clearly in the twenty-first century as they did in the nineteenth.

And putting their decision in some historical context:

In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln famously asked: “[A]re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865 at 246, 254 (Don E. Fehrenbacher ed., 1989). The authority the President seeks here turns Lincoln’s formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may exercise as they please.

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

I couldn't have said it better myself...but I guess that's why I'm not a Federal judge.

One of the things which bothers me most about President Bush is his (and Alberto Gonzales') claim that he can do more or less anything he wants as a war power because the "war on terror" is without borders and without end. Bush has presided over a tremendous (and in my view, dangerous) expansion of Executive power, while the Congress (particularly the Republican Congresses of the past 4 years) have sat back and let him get away with it.

This court ruling, despite the most serious nature of the enemy we face, is an important blow for the civil liberties which represent the most fundamental values and principles of our Republic. President Bush should, but won't, realize the deep significance of this judicial slap in the face.