And not for the better:
Of all the constitutionally threatening and extremist powers the Bush administration has asserted over the last seven years, the most radical — and the most dangerous — has been its claim that the President has the power to arrest U.S. citizens and legal residents inside the U.S., and imprison them indefinitely in a military prison, without charging them with any crime, based on his assertion that the imprisoned individual is an “enemy combatant.” Beginning with U.S. citizen Yasser Esam Hamdi (detained in Afghanistan), followed by U.S. citizen Jose Padilla (detained at Chicago’s O’Hare International Airport), followed by Ali Saleh Kahlah al-Marri (in the U.S. on a student visa and detained at his home in Peoria, Illinois), the Bush administration has not only claimed that power in theory but has aggressively exercised and defended it in practice.
The Bush administration’s strategy of imprisoning these “enemy combatants” in a South Carolina military brig has (by design) ensured that subsequent legal challenges are heard by the Fourth Circuit Court of Appeals, the most right-wing judicial circuit in the country. In September, 2005, a three-judge panel from that circuit issued a ruling in the Jose Padilla case (.pdf) that actually upheld the President’s power to arrest and indefinitely detain even U.S. citizens arrested on U.S. soil without charging them with any crime — a decision which the U.S. Supreme Court refused to review (because the Bush administration, after 3 1/2 years of lawless imprisonment, avoided that review by finally charging Padilla with a crime), thus leaving that Padilla decision as still-valid law in this country.
Citing the allegation that Jose Padilla had “served as an armed guard at what he understood to be a Taliban outpost” in Afghanistan (Dec. at 7), the 2005 Padilla decision held that “the President is authorized by the AUMF to detain Padilla as a fundamental incident to the conduct of war.” The court rejected Padilla’s claim that — as a U.S. citizen who was “captured” on U.S. soil — he was entitled under the Constitution to be charged with a crime and tried in a civilian court. Under Padilla, the President thus has the power to imprison even U.S. citizens in a military brig indefinitely, merely be alleging that they are “enemy combatants” who have “taken up arms against the U.S.”
Yesterday, the full Fourth Circuit appellate court, in a 5-4 ruling (.pdf), expanded that Draconian power even further. This ruling was issued in al-Marri’s case, whose extraordinary plight I’ve previously written about in detail. Al-Marri is a citizen of Qatar who, in 2001, was in the United States legally, on a student visa. He was a computer science graduate student at Bradley University in Peoria, Illinois, where he had earned an undergraduate degree a decade earlier. In Peoria, he lived with his wife and five children. Shortly after the 9/11 attack, al-Marri was detained as a material witness and subsequently charged in a civilian court with a variety of crimes relating to credit card fraud and making false statements as part of the 9/11 investigation. He vehemently denied those accusations, and — in June, 2003 — he was preparing for his criminal trial, scheduled to begin the following month.
Suddenly — a month before his trial was to begin — George Bush declared him to be an “enemy combatant” and ordered the U.S. military to seize him from civilian officials and transfer him to military custody. There — in a South Carolina military brig — al-Marri has remained for the last five years, with no criminal charges having been brought against him and no meaningful opportunity to contest his guilt in a court of law. He has been kept in solitary confinement and denied any contact with the outside world other than his lawyers.
The Fourth Circuit’s 5-4 ruling yesterday upheld the President’s authority to detain al-Marri in a military prison as an “enemy combatant.” What makes the ruling so striking is that — unlike Hamdi and Padilla — not even the Bush administration claims that al-Marri fought alongside the Taliban, fought against U.S. forces, or had even been to Afghanistan. He’s simply a civilian accused by the President of being involved in a terrorist plot. As one of the seven separate opinions issued as part of the court’s ruling yesterday noted [p. 28]: …
Continue reading. It’s important that you know this. It could in time be you who’s whisked away to Lubyanka a secret prison. From later in the column:
So, then, the President has the power to imprison in a military prison even U.S. citizens inside the U.S. — who are pure civilians, having not been anywhere near a battlefield — indefinitely and without having to charge them with any crime.
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