...a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.
“To sanction such presidential authority to order the military to seize and indefinitely detain civilians," Judge Diana Gribbon Motz wrote, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”
“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”
The opinion was 2-1. Judges Diana Gribbon Motz & Roger L Gregory were the majority; Judge Henry E Hudson wrote the dissenting opinion. Not so surprisingly, Judges Motz and Gregory are Clinton appointees. The dissenting judge, Hudson, is a George W Bush appointee. Would you have expected anything else?
al-Marri was in the US legally and that is the crux of this ruling. It differentiates between constitutional and statutory habeas corpus. The former is guaranteed by the Constitution to U.S. citizens. The latter is determined by Congress in reference to non-citizens who are in the US legally.
The Fourth Court of Appeals ruling is based on the fact that al-Marri entered the US with his family legally.
That is what we are talking about here . . . .” 152 Cong. Rec. H7548 (daily ed. Sept. 27, 2006) (statement of Rep. Sensenbrenner); see also H.R. Rep. No. 109-664, pt. 2, at 5-6 (2006) (noting that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country” and that the MCA “clarifies the intent of Congress that statutory habeas corpus relief is not available to alien unlawful enemy
combatants held outside of the United States. United States Fourth District Court of Appeals, 06-7427”
Hudson's dissent goes through a number of different arguments, including the the fact that the court had previously upheld the President's right to declare a person an enemy combatant given cause. However, the end of the dissent is very interesting:
Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al Qaeda to perpetrate terrorist acts against the United States. Al-Marri’s detention is authorized under the AUMF “to prevent any future acts of international terrorism against the United States.” AUMF § 2(a). Furthermore, setting aside the amorphous distinction between an “enemy combatant” and an “enemy belligerent,” there is little doubt from the evidence that al-Marri was present in the United States to aid and further the hostile and subversive activities of the organization responsible for the terrorist attacks that occurred on September 11, 2001.
What is interesting to me is that Hudson's language is written as if he believes that al-Marri is quilty or that he has already been tried and found guilty. Either way, the court was dealing with the question of his right of habeas corpus. He hasn't been tried in a civilian court or a military tribunal. This court is determining whether or not he can be held without habeas corpus or, as the Czar believes, can be detained without habeas corpus. George W thinks that he has the right to hold someone for as long as he wants and with not telling anyone the reasons.
This court is saying, "Whoa! You, sir, have overstepped your Constitutional limits and you still have to abide by them as per the Constitution."
This is a major step. The problem is that the Czar will absolutely, positively have it appealed and it will, like the other cases that have gone against him in the last several days, end up at the Supreme Court.
We know what Justice Ginsburg thinks about the tenor of the current SCOTUS make-up. [Over Ginsburg's Dissent, Court Limits Bias Suits]
when hope is gone, though...