The Bush administration has been a waging a fierce battle for the power to lock people up indefinitely simply on the president’s say-so. It scored a disturbing victory last week when a federal appeals court ruled that it could continue to detain Ali al-Marri, who has been held for more than five years as an enemy combatant. The decision gives the president sweeping power to deprive anyone — citizens as well as noncitizens — of their freedom. The Supreme Court should reverse this terrible ruling.
Mr. Marri, a citizen of Qatar legally residing in the United States, was initially arrested in his home in Peoria, Ill., on ordinary criminal charges, then seized and imprisoned by military authorities. The government, which says he has ties to Al Qaeda, designated him an enemy combatant, even though it never alleged that he was in an army or carried arms on a battlefield. He was held on the basis of extremely thin hearsay evidence.
Last year, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., declared that the government could not hold Mr. Marri, or any other civilian, simply on the president’s orders. If it wanted to prosecute him, the court ruled, it could do so in the civilian court system.
But this decision was overturned in a complex decision in the 4th Circuit Court of Appeals. The question is whether a president's decision--or whims--may override the legal system.
. . . the full Fourth Circuit reversed the decision, and with a tangle of difficult-to-decipher opinions, upheld the government’s right to hold Mr. Marri indefinitely. The court ruled that Mr. Marri must be given greater rights to challenge his detention. But this part of the decision is weak, and he is unlikely to get the sort of procedural protections necessary to ensure that justice is done.
The implications are breathtaking. The designation “enemy combatant,” which should apply only to people captured on a battlefield, can now be applied to people detained inside the United States. Even though Mr. Marri is not an American citizen, the court’s reasoning appears to apply equally to citizens.
“Our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone in this country — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world,” wrote Judge Diana Gribbon Motz.
At the moment this seems to be a marginal case, but how easy would it be for a president to declare anyone he chooses an enemy combatant and lock them up indefinitely? Think about what might happen following a 9/11 type episode. Is this the leading edge of a wedge expanding further the president's detention policies or a reasonable and limited response to an isolated incident?
Here's a link to the decisions: Al-Marri v Pucciarelli
