Civil Liberties

Enemy Combatant To Be Tried

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More on the al-Marri case, which Jacob Sullum blogged yesterday.

From the AP via Cincy Enquirer about the Qatar citizen and legal resident in the U.S. who has been in custody since 2001 and solitary confinement since 2003:

A divided panel from a conservative federal appeals court harshly rebuked the Bush administration's anti-terrorism strategy Monday, ruling that U.S. residents cannot be locked up indefinitely as "enemy combatants" without being charged.

The three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that the government should charge Ali al-Marri, a legal U.S. resident and the only suspected enemy combatant on American soil, or release him from military custody.

The federal Military Commissions Act doesn't strip al-Marri of his constitutional right to challenge his accusers in court, the judges found in Monday's 2-1 decision.

"Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants,'" the court said….

The Bush administration had argued that the Military Commissions Act stripped the court's jurisdiction in the cases of people deemed enemy combatants by the executive branch. The appeals court replied:

"The MCA was not intended to, and does not apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States," the court said.

The court also said the government failed to back up its argument that the Authorization for Use of Military Force, enacted by Congress immediately after the Sept. 11 attacks, gives the president broad powers to detain al-Marri as an enemy combatant. The act neither classifies certain civilians as enemy combatants, nor otherwise authorizes the government to detain people indefinitely, the court ruled.

The case, which is expected to reach the Supreme Court, could help define how much authority the government has to indefinitely detain those accused of terrorism and to strip detainees of their rights to challenge the lawfulness or conditions of their detention.

More here.

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  1. For the inevitable comments that will come up in this thread:

    An accusation is not sufficient proof that somebody is in fact a terrorist. You need evidence. And that evidence needs to be examined. To do otherwise is to take us to a dangerous place.

    That’s really all that needs to be said.

  2. Ty Webb: Ah Danny, this isn’t Russia. . .Is this Russia?

    At least the 4th Circuit doesn’t think so. At least today.

  3. Reason had a nice article a while back. It said that the SCOTUS had seemingly bitch-slapped the POTUS for claiming “I have unlimited powers to do whatever I want to anybody I want”. However, the courts “Oh no you don’t” rulings actually amounted to “You have to fill out a few forms and have a pretext first”. In other words, the Cheney/Ashcroft strategy worked.

  4. An accusation is not sufficient proof that somebody is in fact a terrorist. You need evidence. And that evidence needs to be examined.

    I don’t think anyone at all is arguing these points. The questions are (1) who examines the evidence and (2) what burdens of proof have to be met. It is by no means obvious that the only forum is the criminal courts, and the only burden is “beyond a reasonable doubt.”

  5. Tbone:

    what’s wrong with owning a torture center? I own three.

  6. Why do federal appeals courts hate America?

  7. RC Dean =

    Sure. thats par for course. Question though = do you think the decision is ultimately the discretion of the executive branch without ever presenting a summary of findings to the courts? Meaning, can/should the executive exercise this authority without ANY court overview of any kind? Would it make sense to have a FISA type panel of judges who can review the evidence of ‘combatant’ status of legal US residents?

  8. “I don’t think anyone at all is arguing these points.”

    Except the President, Vice-President, Attorney General, and Solicitor General, each of whom has argued vociferously for years that the President has the authority to order somebody held indefinitely without trial on the President’s say-so.

  9. I agree Joe. Yesterday we saw a lot of hullabaloo about how suspected terrorists get treated better than American GIs, implicity (or explicity) suggesting that anything short of retention until the end of the war (i.e., indefinitely in the GWOT) was tantamount to coddling terrorists.

  10. Anyone paying attention should know Joe is correct.

    What’s interesting is that the government is claiming Marri was designated as an enemy combatant, but the court points out that Congress has set up a system under the MCA describing how that system takes place and that Marri has not been allowed to participate in that system. Therefore he can not be an enemy combatant under the MCA. The government counters that by claiming the President has declared him a combatant by order. That, of course has failed SCOTUS. The government claims they will give Marri the MCA process only if the case is dropped, futher convincing the court Marri has never lawfully been determined an enemy combatant.

    My bet is that the President will pull a Padilla right before the Supreme Court gets the case.

    For those who have yet to read the court’s opinion, please do so. It’s very interesting. The link is available in a previous thread.

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