In June a three-judge panel of the U.S. Court of Appeals for the 4th Circuit rejected the Bush administration's unilateral, indefinite detention of Ali al-Marri, a legal U.S. resident born in Qatar, as an "enemy combatant," saying the government had to charge or release him. Yesterday a 10-judge panel of the same court reheard arguments in the case. According to The New York Times, the judges were surprisingly skeptical of the administration's position, given the 4th Circuit's pro-government reputation. "Based on the pointed, practical and frequently passionate questioning," the Times reports, "the judges of the Fourth Circuit are divided and troubled, and it was not clear which way the majority was leaning."
One judge, J. Harvie Wilkinson III, made his position pretty clear. Wilkinson questioned a distinction drawn by the three-judge panel, which noted that Al-Marri, unlike "enemy combatants" Jose Padilla and Yaser Esam Hamdi, was not accused of taking up arms with the Taliban in Afghanistan. Arrested while attending graduate school in Illinois, he was initially held as a material witness. Later he was charged with credit card fraud and lying to the government, then transferred to military custody on the eve of his trial based on a presidential order that identified him as a member of Al Qaeda. If the post-9/11 congressional authorization for the use of military force made the detention of Padilla and Hamdi legitimate, Wilkinson said, "I don't understand how the authority to use military force which relates specifically to the Sept. 11 attacks can be held not to apply to the people who attacked us."
In other words, Wilkinson rejects the attempt to restrict the president's detention power by limiting it to soldiers in a finite military conflict. The practical result is that the president can nab anyone anywhere, including a U.S. citizen on U.S. soil, and detain him without charge for any length of time, based on nothing more than an assertion that the prisoner is connected to terrorism. While the three-judge panel worried that such a power "would effectively undermine all of the freedoms guaranteed by the Constitution," Wilkinson seems untroubled by that prospect. According to Legal Times, he said "he didn't understand 'all of the hoopla' surrounding al-Marri's case, given that only a handful of people in the United States have been declared enemy combatants, unlike the roundup of German citizens during World War I and the large-scale internment of Japanese citizens during World War II." As for the indefinite nature of detention until the "cessation of hostilities" in the never-ending War on Terror, Wilkinson said Congress can always rescind the president's detention authority "if the perceived threat lapses or diminishes."
As at least one judge noted yesterday, the president's assertion of authority in this area would seem to justify not just unilateral, indefinite, unreviewable detention but secret detention as well. So it would be safer to say "only a handful of people in the United States have been declared enemy combatants that we know about." In any case, Wilkinson seems willing to let the president exercise king-like detention powers until he starts locking up thousands of people, at which point maybe Congress will do something.