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.
