A Court Finally Challenges Indefinite Detainment at the President's Whim

Yeah, I know, security hawks will be lamenting the decision as an open door to terrorists, yada yada, but I think this is refreshing to see at least someone in the judiciary standing up for individual rights.  Orin Kerr reports that the Fourth Circuit has rejected the indefinite detainment of Ali A-Marri of Qatar.

The court takes a very narrow view of the category "enemy combatant";
if I read the court correctly, it sees the category as basically
limited to the catgeory of military opponent in battle rather than
Al-Qaeda terrorist

Fine with me.  The decision reads in part:

[A]bsent suspension of the writ of habeas corpus or declaration of
martial law, the Constitution simply does not provide the President the
power to exercise military authority over civilians within the United
States. The President cannot eliminate constitutional protections with
the stroke of a pen by proclaiming a civilian, even a criminal
civilian, an enemy combatant subject to indefinite military detention.
Put simply, the Constitution does not allow the President to order the
military to seize civilians residing within the United States and
detain them indefinitely without criminal process, and this is so even
if he calls them "enemy combatants."

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. For a court to uphold a claim to such
extraordinary power would do more than render lifeless the Suspension
Clause, the Due Process Clause, and the rights to criminal process in
the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively
undermine all of the freedoms guaranteed by the Constitution. It is
that power "” were a court to recognize it "” that could lead all our
laws "to go unexecuted, and the government itself to go to pieces." We
refuse to recognize a claim to power that would so alter the
constitutional foundations of our Republic.

I couldn't have said it better myself.  Even if the President really, really needs this power to make us all safe (and I don't really think he does), that fact does not make the action Constitutional.   If the government needs a new power to manage suspected terrorists on US soil, then they are going to have to create it through normal legislative and Constitutional processes.

Kerr projects that this decision is ice in the desert, and will soon be overturned.  Never-the-less, I am glad someone is taking this position.  Maybe it will catch on.


  1. Ming Jack Po:

    Absolutely agree with your stance. Indefinite detainment is a slippery slope. If we don't fight these encroachments on our civil liberties now, we'll have nobody to blame later!

  2. Mesa EconoGuy:

    A slipperier slope is allowing terrorists to pigeonhole US law, and usurp rights to which they aren’t entitled. That is far more dangerous, as it sets precedent.

    The current “administration,” such as it is, couldn’t keep Chuck Manson in jail, if they tried.

  3. Mesa EconoGuy:

    This is [also] why open borders, and confirmation of rights on non-citizens [i.e. you cannot spontaneously confer rights unto non-parties to contracts, agreements, patents, or other protections] cannot work [apologize for length, but well worth it]:


    The ruling has several troubling aspects. The major ones involve the jurisdiction of federal courts — i.e., the degree to which they may intercede on behalf of al Qaeda combatants in the future — and the panel’s assessment of our current threat environment, which reflects classic September-10th thinking.

    Although it did not conclusively rule on the issue (finding a technical path around it), Judges Motz and Gregory transparently indicated their inclination for finding that any alien who is lawfully present inside the United States is entitled to all the rights and privileges of the Constitution — just as if he were an American citizen.
    [They are not.]

    Their reasoning on this point was faulty, and it has perilous implications for national security. Cherry-picking some loose language in prior cases, the majority purported that “every individual detained within the United States,” including all “aliens,” are fully vested with constitutional rights and privileges. (Opinion 13-14.) But federal jurisprudence does not actually go that far. The Supreme Court has held that aliens attain constitutional rights gradually as they are woven over time into the fabric of our national community. Only “U.S. persons,” a designation reserved for American citizens and lawful permanent resident aliens, are fully vested.

    Indeed, even in its awful 2004 Rasul v. Bush decision, which granted Qaeda detainees statutory habeas rights, the Supreme Court declined to hold that aliens had constitutional rights — notwithstanding that the Court majority had (erroneously) found them to be inside de facto U.S. territory (i.e., Guantanamo Bay). And in its 2001 decision in Zadvydas v. Davis, which strained to give excludable aliens constitutional due process rights, the Court was careful to qualify that it was not addressing aliens involved in “terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security.” (Tellingly, Monday’s panel majority cites Zadvydas but elides mention of this crucial caveat.)

    Why is this distinction between statutory and constitutional rights so vitally important? For two reasons. First, if rights are conferred only by statute, Congress can eliminate or narrow them. In connection with enemy combatants, it has done the latter — balancing due process and military necessity — by two major pieces of legislation since 2005. These statutes (the Detainee Treatment Act and the Military Commissions Act) permit military tribunals (to determine combatant status and try war crimes) and limit review in the civilian courts to only the D.C. Circuit Court of Appeals, and, ultimately, the Supreme Court.

    If, however, the combatants’ rights were deemed to be inherently constitutional, that would mean unaccountable federal courts, not political officials answerable to Americans, would take charge of determining how military detainees in wartime must be treated. This would be a radical departure. The Supreme Court has acknowledged, repeatedly, that the detention and trial of enemy combatants is a military determination committed to the political branches. Moreover, as the Court explained in its 1948 Chicago & Southern Air Lines decision, our system assumes that national security decisions involving foreign affairs are political, not judicial. They require a direct nexus between the decision-makers and the voters:
    The very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. [Emphasis added.]