Outside the Beltway

4th Circuit Strikes Down Indefinite Detentions

James Joyner · Monday, June 11, 2007 · 2 comments

The federal courts have dealt yet another blow to the Bush administration’s policy of denying due process to those it deems “enemy combatants.”

Adam Liptak notes that,

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.

WaPo’s Carol Leonnig adds:

The opinion is a major blow to the Bush administration’s assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States.

[…]

The appeals panel said President Bush overstretched his authority by declaring Marri an “enemy combatant,” because the Constitution protects both U.S. citizens and legal residents such as Marri from an unchecked military and from being detained without charges and a fair trial. The court rejected the administration’s claim that it was not relevant that Marri was arrested in the United States and was living here legally on a student visa.

“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,” the panel found. “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.’ “

Marty Lederman provides a more detailed legal analysis:

The principal merits holding in the court of appeals’ opinion today in al-Marri is that Congress has not authorized the indefinite military detention of a person who is (i) protected by the Due Process Clause (including, at a minimum, U.S. citizens and residents); and who is (ii) not under the direction of an enemy nation — and that if Congress had authorized such a detention, it would raise profound Due Process questions under Milligan.

The court assumes, without deciding, that if a detainee is under Al Qaeda’s direction but is not protected by the Due Process Clause (as the court assumes for sake of argument Hamdan, for instance, is not), or if the person is taking direction from, or fighting on behalf of, the Taliban, then Congress has authorized that person’s detention, principally because such detentions would not raise the same Due Process problems that are raised here (and in the latter case, because the laws of war would authorize the detention, and Congress is presumed to have given the President such law-of-war authorities).

The decision will, of course, be appealed, either to the entire 4th Circuit or to the U.S. Supreme Court, which is likely to take the case given the magnitude of the issues involved. It strikes me as incredibly likely, though, that this will be reversed given the steady steam of SCOTUS precedents in the other direction.

While I’m more sympathetic than hard-core libertarians to long-term detention of terrorists and other unprotected belligerents caught overseas, it’s patently obvious that American citizens and resident aliens are entitled to due process. To hold otherwise would give the government power that would be far more dangerous than anything contemplated by Ali al-Marri.

As Kevin Drum rightly notes, “Al-Marri might be ‘the type of stealth warrior used by Al Qaeda,’ but nobody’s denying that. The question at hand is whether the federal government is allowed to simply assert this indefinitely without evidence.” Surely, the answer to that is No.