It looks like the U.S. Court of Appeals for the 4th Circuit, which has a reputation as the most government-friendly federal appeals court, may rule against the Bush administration's policy of indefinitely detaining anyone the president unilaterally declares an "enemy combatant." Yesterday the court heard oral arguments in a case involving Ali al-Marri, who is said to be the only terrorism suspect still being held in military custody on the U.S. mainland. (Given this administration's secrecy and claims of broad executive power, I'm not sure how we know that's true.) In 2001 Al-Marri, a legal U.S. resident from Qatar, was arrested in Peoria, where he was studying computer science at Bradley University, on charges of credit card fraud and lying to federal agents. He was later transferred to the U.S. Navy brig in Charleston because of suspected ties to Al Qaeda. According to The New York Times, two members of the three-judge panel hearing the case were distinctly skeptical about the Bush administration's argument that the president alone has the authority to decide al-Marri's fate.
"What would prevent you from plucking up anyone and saying, 'You are an enemy combatant?'" Judge Roger L. Gregory asked the administration's lawyer, David B. Salmons. Short answer: Nothing. In fact, Salmons added, "a citizen, no less than an alien, can be an enemy combatant."
Judge Diana Gribbon Motz asked if the administration could declare war on People for the Ethical Treatment of Animals (presumably after labeling it a terrorist organization) and hold its president as an enemy combatant. "The representative of PETA can sleep well at night," Salmons said, because the president is careful in determining who is an enemy combatant. "If the U.S. can do this, it's contrary to the Constitution," Motz said. "It would give other nations the ability to do that by declaring a U.S. citizen an enemy combatant."
Alluding to Jose Padilla, an enemy combatant who was transferred back to civilian custody before the Supreme Court could rule on his challenge, and Yaser Esam Hamdi, an enemy combatant who was released after the Court said he had a right to challenge his status before "a neutral decisionmaker," Motz wondered if something similar might happen with al-Marri. "Often the government in these cases has a late-breaking development," she said. "Is there any late-breaking development here?"