Dear Everyone;
Finally a higher court says what should have been said long ago. It is especially important in light of the Military Commission Act which basically allows the president to declare an American citizen an enemy combatant and have the military pick them up and hold them indefinitely.
It's about the rule of law - not the rule of men.
Preserve - Protect - Defend the US Constitution - it's the only one we have standing in the way of the Bush Regime.
Ron Getty
SF Libertarian
http://preview.tinyurl.com/yonwke
A Ruling for Justice
For years, President Bush has made the grandiose claim that the Congressional authorization to attack Afghanistan after 9/11 was a declaration of a “war on terror” that gave him the power to decide who the combatants are and throw them into military prisons forever.
Yesterday, in a powerful 2-to-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit utterly rejected the president’s claims. The majority made clear how threatening the administration’s policies are to the Constitution and the rule of law — and how far the administration has already gone down that treacherous road.
Mr. Bush, the majority said, does not claim these powers for dire emergencies but “maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the presidency, which he and his successors may exercise as they please.”
The prisoner in this case, a citizen of Qatar named Ali al-Marri, was living in the United States legally when he was arrested and charged with being an Al Qaeda terrorist. In 2003, Mr. Bush declared Mr. Marri an enemy combatant, took him from civilian authorities and threw him into a military brig where he remains today without charges being filed.
The court did not say Mr. Marri was innocent, nor that he must be set free. It said that the law does not give Mr. Bush the power to seize a civilian living in the United States and declare him to be an enemy combatant based on whatever definition he chooses to apply. If Mr. Marri is to be kept in prison, it said, he must be tried and convicted in a civilian court.
The ruling said the Constitution and numerous precedents made it clear that foreigners living legally in this country have the same right to due process as any American citizen. It found no merit in the president’s claim that the Congressional approval of the use of military force in Afghanistan gave him authority to change that or that he has “the inherent authority” to do it on his own. Sanctioning that kind of authority “would have disastrous consequences for the Constitution — and for the country,” the judges said.
The judges said their ruling applied only to people living legally in the United States and not to the prisoners in Guantánamo Bay. But the court’s powerful arguments may be relevant to a large number of those men. Steven Shapiro, legal director of the American Civil Liberties Union, said the ruling would not help those prisoners who were captured on a battlefield and properly imprisoned as combatants. But there are hundreds of prisoners who were not taken on a battlefield but instead were picked up by the military or intelligence agents around the world and classified as combatants because of their association with Al Qaeda. The ruling said that was not an adequate definition of combatant.
This ruling is another strong argument for bringing Mr. Bush’s detention camps under the rule of law. Congress can do that by repealing the odious Military Commissions Act of 2006, which endorsed Mr. Bush’s twisted system of indefinite detentions, by closing Guantánamo Bay and by allowing the courts to sort out the prisoners — not according to the whims of one president with an obvious disdain for the balance of powers but by the rules of justice that have guided this nation for more than 200 years.
Court Says Military Cannot Hold 'Enemy Combatant'
By ADAM LIPTAK
In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, 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 ruling was handed down by a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., in the case of Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant.
Mr. Marri, whom the government calls a sleeper agent for Al Qaeda, was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.
He has been held for the last four years at the Navy Brig in Charleston, S.C.
Judge Motz wrote that Mr. Marri may well be guilty of serious crimes. But she said that the government cannot circumvent the civilian criminal justice system through military detention.
Mr. Marri was charged with credit-card fraud and lying to federal agents after his arrest in 2001, and he was on the verge of a trial on those charges when he was moved into military detention in 2003.
The government contended, in a partly declassified declaration from a senior defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.
Two other men have been held as enemy combatants on the American mainland since the Sept. 11 attacks. One, Yaser Hamdi, was freed and sent to Saudi Arabia after the United States Supreme Court allowed him to challenge his detention in 2004.
The other, Jose Padilla, was transferred to the criminal justice system last year just as the Supreme Court was considering whether to review his case. He is now on trial on terrorism charges in federal court in Miami.
The decision does not appear to affect the rights of men held at the American naval base at Guantanamo Bay, Cuba. Judge Motz stressed that the court analysis was limited to those who have substantial connections to the United States and are seized and detained within its borders.
A dissenting judge in today’s decision, Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, wrote that President Bush “had the authority to detain al-Marri as an enemy combatant or belligerent” because “he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States.”
Jonathan Hafetz, the litigation director of the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law and one of Mr. Marri’s lawyers, said of the court’s decision: “This is landmark victory for the rule of law and a defeat for unchecked executive power. It affirms the basic constitutional rights of all individuals — citizens and immigrants - in the United States.”
Writing for the majority, Judge Motz ordered the trial judge in the case to issue a writ of habeas corpus directing the Pentagon “within a reasonable period of time” to do one of several things with Mr. Marri. He may be charged in the civilian court system; he may be deported; or he may be held as a material witness; or he may be released.
“But military detention of al-Marri,” Judge Motz wrote, “must cease.”