June 12, 2007

No Military Detention For Legal Residents Of US

The Fourth Circuit Court of Appeals ruled yesterday that the military cannot detain people who have legal residence in the US for crimes committed here, even if those crimes include acting as a foreign agent in service to an enemy at war. Instead, the divided ruling instructs, the government must transfer custody of Ali al-Marri to civilian authority and provide the normal due process of criminal prosecution for his alleged crimes (via Memeorandum):

The federal appeals court in Richmond, Va., ruled yesterday that the president may not declare civilians in this country to be “enemy combatants” and have the military hold them indefinitely. The ruling was a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism.

The ruling came in the case of Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., who is the only person on the American mainland known to be held as an enemy combatant. The court said the administration may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation. ...

The court, the United States Court of Appeals for the Fourth Circuit, said a fundamental principle is at stake: military detention of someone who had lawfully entered the United States and established connections here, it said, violates the Constitution.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Motz wrote, “even if the president calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”

The case presented the courts with dire consequences on both sides. If executive power remained completely unchecked, any non-citizen could have been held without trial indefinitely simply by designating him an enemy combatant. However, if the ability to hold foreign sleeper agents gets removed, it would force the government to hold open trials in criminal courts to keep these agents from returning to their efforts to commit acts of terrorism and sabotage against us all.

In this case, the government created its own complicating factors. In four years of detention, the military never bothered to conduct a tribunal to determine al-Marri's status. Even if the panel had any sympathy towards the government's position, the lack of even this process would likely have convinced them of bad faith on behalf of the administration. And really, is there any excuse for a four-year delay in that determination?

However, the panel overreached in their decision yesterday, even if they had some rational reasons for doing so. Congress specifically took jurisdiction on these cases away from the federal court system and gave it to the military court system in its place. The Department of Justice has asked for an en banc review of this decision, and without doubt the Supreme Court will hear an appeal from whichever side loses at that stage. At issue will be whether the will of Congress violated the Constitution -- and it did not.

As often remarked, the Constitution is not a suicide pact. It does not require us to allow foreign terrorists in wartime access to the criminal court system. That sense of habeas corpus has never been a feature of any wartime American security effort. Foreign agents and spies have been held without recourse to the federal courts throughout our history, and the Republic still stands.


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Comments (16)

Posted by Joe Doe | June 12, 2007 7:37 AM

Those who may happen not to have legal residence ... can probably apply for Amnesty when Mr Bush and the 40 thieves are done with America - problem solved.

Posted by TomB | June 12, 2007 7:54 AM

There is a second layer to problems of the alien agents, which can be summarized in four words: who was the rat? For these guys the game is not over at the moment of capture, they want to damage and possibly dismantle our security system by exposing the informants. Unfortunately Liberals fell for it (Yeah, give them all fair trail!..). We have to realize that we can not use the same methods to fight terror as brake and enter, or we'll die.

Posted by MarkJ | June 12, 2007 7:57 AM

Dear John Doe,

Thanks for that erudite, insightful, intellectually stimulating, troll-like comment. Now would you mind explaining it to rest of us unwashed rubes?

Very truly yours,

Posted by MarkD | June 12, 2007 8:03 AM

In WWII, when the Germans landed saboteurs in the US, it didn't take years to try and execute them.

There are far too many lawyers involved in everything these days.

Posted by Rhymes With Right | June 12, 2007 8:11 AM

I always hate it when folks pull out the "suicide pact" analogy and speak l like it has some authority. After all, it comes from a dissenting opinion, not a majority opinion, in an old Supreme Court case -- and if the opinion had garnered a majority, it would have upheld the principle that all that needs to happen to strip a speaker (or writer) of his First Amendment rights is for his opponents to threaten violence if he is not silenced.

Posted by Joe Doe | June 12, 2007 8:13 AM

Dear MarkJ:

An example: Guantanamo Bay residents can proably apply for a Z visa when Mr president will oblige (or Y viza, or whatever they can come up with, as the alphabet is quite limited at this point). After all, they may apply for straight full US citizenship, considering that is almost 5 years of "residence" - so they all passed the "residence test" by now.

I know, this can never happen. Sure, leave it to the lawyers ...

I somehow realize that there is still luv for the president here - will post no more my silly rants indeed - no point to raise emotions any further, no need for that actually, hot summer ahead.

Posted by NRA Life Member | June 12, 2007 8:16 AM

Mark D is absolutely right. It was a priority of President Roosevelt to clearly define sabotage by enemy agents as a death penalty offense. Moreover, most (or all) of these saboteurs had lived in the US legally for a considerable amount of time, and one was a naturalized citizen. They were captured June 20, 1942, tried July 8-August 4 of 1942, and 6 of the eight were executed on August 8, 1942. Resolve in the face of treachery is simply non-existent in our era.

Posted by PersonFromPorlock | June 12, 2007 8:29 AM

Prisoners are either civilians or military; if they're not military -- and we refuse to classify Islamic terrorists as such -- then they're necessarily civilians; and if they're civilians, they get Constitutional protections.

Note that the decision here is not about the rights of the defendent but about the delegated powers of the government: there is just no Constitutional authority for treating prisoners as being neither military nor civilian. The administration's been trying to finesse this and it just bit 'em in the arse.

Posted by jay | June 12, 2007 8:31 AM

We have to start using the penalties called for in the Geneva Convention. Including death for combatants dressed as civilians.

Posted by David L | June 12, 2007 8:52 AM

This one is a no brainer. Ali al-Marri's status as an enemy combatant has not been challenged. The Fourth seems to feel he can be both a civllian and an enemy combatant.

The constitutional facts are simple. The president is the commander-in-chief, and a commander-in-chief can detain an enemy combatant for as long as he remains an enemy, even ithat is until such time as heck freeze over..

Posted by Rhymes With Right | June 12, 2007 8:59 AM

Of course, FDR had a neat way of getting his actions upheld by the Supreme Court in the Quirin case mentioned above -- he sent his Attorney General to visit the Supreme Court and pass on the message that the prisoners would be executed as scheduled, regardless of what decision the Court made. Faced with the choice between upholding the execution of spies and saboteurs in time of war or appearing impotent and irrelevant, the Court sided with FDR.

Posted by TrueLiberal | June 12, 2007 9:19 AM

I thought John Doe was very clear in his point. The sleepers poised in this country will have full protection of those they intend to kill under this amnesty bill.

Posted by Ludwig | June 12, 2007 9:25 AM

"Of course, FDR had a neat way of getting his actions upheld by the Supreme Court in the Quirin case mentioned above -- he sent his Attorney General to visit the Supreme Court and pass on the message that the prisoners would be executed as scheduled, regardless of what decision the Court made. Faced with the choice between upholding the execution of spies and saboteurs in time of war or appearing impotent and irrelevant, the Court sided with FDR."

Ah yes thats just what we need...lets dismantle one of the 3 branches of governement...while we re at it,why not do away with congress,since its not controlled by democrat "traitors" and leave the commander in chief as the supreme overlord of america...we''ll get our own military dictatorship right here instead of building them abroad. Now thats efficeincy.

Posted by k2aggie07 | June 12, 2007 9:44 AM

Hey, its history. Thats what FDR did, not Bush. Thats why I always wonder why democrats idolize him. He's much more Lieberman than Lamont; much closer to Reagan than Clinton.

The point thats being made is FDR suspended many rights in a time of war for the survival of our country. Was it legally wrong? Perhaps; did it work? I'd say so.

Posted by Lew | June 12, 2007 10:46 AM

And of course, the other issue in play here is Congress's constitutional power to limit and define the jurisdiction of the United States Supreme Court. As the Cap'n said above, Congress specifically removed this issue from the Court's jurisdiction in accordance with its powers described in the second paragraph of Article III, Sect. 2.. ToWit; "In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

In other words, does the Congress have the power to remove this case from the jurisdiction of the Court, or not? The "Constitution as read" would seem to say quite plainly that it does, but we now live under the "Constitution as interpreted" and as a result we may not assume anything about the outcome. The Court is going to tell us what the limits of its own powers are, and everyone will just fall dutifully into line like good little Americans, and doff our caps to our black-robed betters like good little peasants.

Good Luck!

Posted by Okonkolo | June 12, 2007 11:28 AM

PersonFromPorlock nailed it.