Cato on Enemy Combatant ruling

Cato has a good summary of the enemy combatant ruling in the al-Marri case that I have written about in previous posts. I am no lawyer, but maybe I should be. Cato's legal expert Tim Lynch gives a legal opinion here that is stunningly close to my assessment. I'll paste his brief opinion but there is more info here.

The Al-Marri ruling (pdf) this week brings the “enemy combatant” controversy back into the news. I addressed the Al-Marri case in this article (pdf) for the Cato Supreme Court Review (see pp. 37-39). In the article, I set forth a legal framework for analyzing the competing claims of security and liberty. I think factors such as citizenship and place of capture matter.

President Bush advances the sweeping claim that the entire world, including every inch of U.S. territory is a “battlefield.” He then argues that the “battlefield” is no place for police officers, search warrants, trials, and judges. There are no rights on the battlefield. Bush is the commander-in-chief and he’ll decide who needs to be killed or locked up. And his decisions are final. No “second-guessing” by the Congress or the judiciary.

Despite his sinking poll numbers, Bush’s dangerous legal claims are alive and well. This evening, Bush could have any American secretly arrested and put on a plane for incommunicado detention and interrogation at Guantanamo. This is what a federal appellate court ruled in the Padilla case. And just when it looked as if the Supreme Court was ready to overturn that case and declare Bush’s policy (at least with respect to citizens in the USA) illegal, the Bush administration suddenly moved Padilla from military custody to civilian custody where he is now on trial in Florida. Bush’s lawyers told the Supreme Court that there was no longer any need to hear the case–since Padilla was no longer in military custody. Unfortunately, the Supreme Court agreed. By declining to hear Padilla’s appeal, the lower court precedent approving Bush’s sweeping legal claim was left in place. If an American were to be sent to Guantanamo this evening, it would take several years of litigation before the Supreme Court would be ready to rule on the matter. It is thus no exaggeration to say that right now the liberty of every American rests upon the grace of the White House.

Al-Marri’s case is about non-citizens imprisoned in military brigs inside the United States. Al-Marri is a citizen of Qatar. He entered the U.S. one day before the 9/11 attacks and the government says he is a terrorist and his mission was to engage in follow-on attacks here in the U.S. He was initially arrested and charged with criminal offenses, but then he was declared an “enemy combatant” and was moved to a military brig. He has been imprisoned in a South Carolina military prison for four years while his attorneys challenged the legality of his imprisonment. This week a federal appeals court ruled that Al-Marri must be (1) deported; or (2) charged with a crime; or (3) released from custody. The U.S. military cannot continue to keep him locked up.

This outcome creates a weird situation in which an American can be held in military custody, but a legal immigrant cannot be. I don’t agree with everything in the Al-Marri ruling, but it does reject Bush’s most sweeping claims about his power. Excerpt: “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, 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 that would so alter the constitutional foundations of our Republic.”

Mr. Bush’s lawyers say they plan to appeal the ruling.

WSJ disagrees with Fourth Cuircut ruiling and I

The opinion page of the WSJ today opined that the Fourth Circuit's ruling forcing the federal government to extend rights of habeas corpus to individuals who are either American citizens or in the U.S. legally. Their opinion was split into two parts. The first part predicts that the ruling will be overturned. I agree. They made broad sweeping proclamations that were not warranted.

"There's no doubt that the 2-1 Fourth Circuit ruling in Al-Marri v. Wright is remarkable and dangerous in its sweeping judicial claims. Judges Diane Motz and Roger Gregory, both Bill Clinton nominees, ruled that a person like al-Marri does not qualify as an enemy combatant, because the U.S. cannot be "at war" with a private group like al Qaeda."

I believe that the government can declare war against any foreign entity that threatens the security or sovereignty of the United States or any of American citizen. Furthermore...

"For the "enemy combatant" moniker to apply, the court said, a terrorist must have set foot in the soil "alongside" the forces of an enemy state--i.e., Iraq or Afghanistan."

As the WSJ states, this is odd considering that the modern terrorist organization does not necessarily have/need state sponsorship.

Where the WSJ goes wrong is their trust in the federal government. They trust that the government is an altruistic institution which would never misuse the "enemy combatant" label. Trust misplaced for sure. Why are we so scared of the American judicial system?

They, and others, claim that 1) plotting terrorists will get off (mainly through loopholes) and 2) sensitive information will be put out in court. Both legitimate concerns. Legitimate enough to scrap the constitution? I think not. Gangsters and mob boss trials threaten to also allow murderers to get off and out undercover informants or sensitive information, but do we hold them incommunicado without their rights of habeas corpus? No. Nor should we.

Furthermore the whole purpose of the enemy combatant label, or any suspension of habeas corpus, is meant for the battle field. It would be crazy to hold trials for combatants while we are still fighting a war. Although I am hesitant to do so, I will extend this to the war on terror although this should only hold for foreigners.

Under the WSJ's assumptions, Timothy Mcveigh could have been held as an enemy combatant. As despicable as his actions were, should he not have the protections of the constitution? Is somebody who conspires to shoot an FBI agent an enemy combatant? Where is the line drawn? I don't know and neither does the WSJ or the Bush administration. I will again ask conservatives who disagree with me one simple question:

Do you trust President Hillary Clinton with the power to hold American citizens incommunicado without rights of habeas corpus for alleged crimes against the state?

Executive Overreach Smacked Down

The Fourth Circuit federal court of appeals has ruled against the military detention of Ali al-Marri. Marri trained at a terrorist camp inside Afghanistan and was arrested in the United States for credit card fraud (he was preparing to eventually disrupt U.S. financial markets). He was held incommunicado for 16 months after his arrest in 2001 and is still incarcerated. The fourth circuit ruled that he could no longer be denied habeas corpus.


According to the NYT

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.”

“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our republic.”

I am hopeful that conservatives will embrace this court decision. Although conservatives and courts in general haven't been chummy, it would be a mistake to argue against this decision. If you are reading this thinking something like "Well how are we going to fight terrorism?" or "Why can't we hold terrorist who wish to harm this country?" I would like you to answer these questions.

1) Do you trust a distant federal government to use the title "enemy combatant" for only terrorists who are actually about to attack the United States?

2) Is somebody who attacks a federal building or federal interest (broadly defined) an enemy combatant?

3) Would you trust Hillary Clinton with such broad powers?