Deeply Disturbing - Democratic Underground

babylonsister

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Wed Jul-16-08 06:12 PM
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Deeply Disturbing

Deeply Disturbing

by Steven D
Wed Jul 16th, 2008 at 01:21:19 PM EST

The Fourth Circuit Court of Appeals (one level below the Supreme Court) has just ruled that Bush was granted the unlimited power by Congress to detain indefinitely anyone in the United States (you, me, your teenage son or daughter, anyone at all) merely be declaring them an enemy combatant. In a split 5-4 decision the Fourth Circuit also held that said enemy combatant was permitted to "challenge" that detention, but failed to elaborate on what form that challenge should take. From the NY Times:

President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.

But a second, overlapping 5-to-4 majority of the court, the United States Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled. <...>

The court effectively reversed a divided three-judge panel of its own members, which ruled last year that the government lacked the power to detain civilians legally in the United States as enemy combatants. That panel ordered the government either to charge Mr. Marri or to release him. The case is likely to reach the Supreme Court.

How helpful the decision will be to Mr. Marri remains to be seen, as the majority that granted him some relief was notably vague about what the new court proceeding should look like. In that respect, Tuesday’s decision resembled last month’s decision from the United States Supreme Court granting habeas corpus rights to prisoners held at Guantánamo Bay.

Mr. Marri is the only person on the American mainland known to be held as an enemy combatant. The government contended, in a declaration from the defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system. <...>

Jonathan L. Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice at the New York University School of Law, called the Fourth Circuit’s decision deeply disturbing. “This decision means the president can pick up any person in the country — citizen or legal resident — and lock them up for years without the most basic safeguard in the Constitution, the right to a criminal trial,” Mr. Hafetz said.

This is a "deeply disturbing" opinion, even though it comes from only one appellate court, and one of the more conservative ones at that. It points up the danger of allowing Republican Presidents to appoint judges to the Federal bench who have authoritarian and partisan leanings. I have little doubt that the same justices who signed off on this grant of unlimited power to the Executive Branch would have seen the matter very differently if a Democrat held the office of President.

more...

http://www.boomantribune.com/story/2008/7/16/132119/723