“Enemy Combatant” Designation Ruled Bogus
Pierre Tristam / Candide’s Notebooks, June 12, 2007

It’s a wonder it took that long — five years for a U.S. federal court finally to declare the designation of “enemy combatant,” at least when it’s slapped on lawful residents of the United States, null and void. If the government wants to hold terrorists in the United States, it must charge them with a crime—or release them, as it will have to do with Ali Saleh Kahlah al-Marri. The Fourth Circuit Court of Appeals is the most conservative in the nation, but this 2-1 decision was issued by two Clinton appointees. The first two pages of the opinion is a gem of a Declaration of Independence from six years of imperial decrees by Bush.

Keep in mind that the decision has no bearing on prisoners held at Guantanamo Bay or on the legality of the (bogus) notion of “enemy combatants” in the context of the war on terror. In the scheme of things it’s a minor, tenuous rebuke, however “stinging” (as Adam Liptak, the eventual Pulitzer-winning legal reporter for the Times, put it), to the Bush administration.

Nevertheless, Judge Diana Gribbon Motz wrote:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since—without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper. While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute—enacted years after al-Marri’s seizure—strips federal courts of jurisdiction even to consider this habeas petition. We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian. This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11 th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians—let alone imprison them indefinitely.