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Talking Points: Due Process

Yesterday, the Fourth Circuit Court ruled that the President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian subject to indefinite military detention.

Yesterday, in a “major setback” to President Bush’s terrorism detention policies, the Fourth Circuit Court in Richmond, VA ruled that “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.” In a 2-1 decision, the court declared that Ali Saleh Kahlah al-Marri, a Qatari national who is the last person on the American mainland known to be held as an enemy combatant, must be released from military detention. The ruling barred military detention of any civilian captured inside the U.S., though the decision is limited to those who are in the country legally and have established connections here. On Sunday, Gen. Colin Powell, Bush’s first Secretary of State, publicly called for the closing of Guantanamo Bay and an end to the military commission system associated with it. As the New York Times writes today, “this ruling is another strong argument for bringing Mr. Bush’s detention camps under the rule of law“, which would entail repealing the Military Commissions Act of 2006, “closing Guantanamo Bay and…allowing the courts to sort out the prisoners…by the rules of justice that have guided this nation for more than 200 years.”

  • Al-Marri was a civilian in the United States illegally detained without process. In 2001, Al-Marri was residing in the U.S. legally as a student at Bradley University when he was arrested soon after September 11 for credit-card fraud and lying to federal agents. He was also considered an alleged material witness in the 9/11 attacks. “On June 23, 2003, just weeks before Mr. al-Marri’s planned trial in the federal court, President Bush declared him an ‘enemy combatant’ in the ‘war on terror’ and ordered him transferred to military custody.” He was then “held incommunicado” at the Naval Consolidated Brig in Charlestown, South Carolina “for 17 months while being interrogated under allegedly coercive and abusive conditions.” In 2004, al-Marri’s counsel filed a petition for a writ of Habeas Corpus, challenging his detention, beginning a process which eventually led to yesterday’s decision. The court concluded that “even assuming the truth of the government’s allegations…the President’s constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri,” a citizen of a country in good standing with the U.S. who is in the country legally, “without criminal process any more than they permit the President to order the military to seize and detain without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing.”
  • The President does not have the power to simply declare a civilian to be an enemy combatant. The Court’s decision is very specific in its ruling that the President’s word alone is not sufficient to legally declare someone an “enemy combatant.” Stating that while they “do not question the President’s war-time authority over enemy combatants,” the majority asserted that, “absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President with the power to exercise military authority over civilians within the United States.” Under the court’s interpretation of precedent, a mere relationship to al-Qaeda is not enough to be classified an “enemy combatant” warranting indefinite military detention. Furthermore, the actual process for removing habeas status from someone declared an “enemy combatant,” as laid out in the Military Commissions Act of 2006, requires a two-step process. First, “there must be an initial decision to detain; then, there must be a subsequent official decision by the government that the initial decision was ‘proper.’ The government never took the second step throughout al-Marri’s entire detention, the Court determined.
  • The United States has a court system that works, it is time to close Guantanamo and return those detainees to work their way through the courts. As former Secretary of State Colin Powell said during his appearance on NBC’s Meet The Press recently, abandoning the administration’s misguided military detainee system does not mean the United States would “let any of those people go” who are suspected of terrorism. Rather, they would “simply” be moved to the United States and put “into our federal legal system.” The Fourth Circuit Court, which is generally considered one of the most conservative appellate courts, reaches a similar conclusion in determining that while al-Marri  is accused of “grave crimes,” the prosecution of his case could and should be handled in the established criminal justice system. As Center for American Progress Ken Gude has argued, the administration should close the prison at Guantanamo, and shift detainee operations to Ft. Leavenworth, KS.” This will allow the creation of a constitutional legal system for detainees that would provide for the conviction of terrorists. As it stands now, the lawless environment at Guantanamo and the questionable legal status of the current military commission system have dangerously tarnished the reputation of the United States abroad.