OK, it’s not quite like that, but a court ruling that slipped under the noise of failing banks, a rallying stock market, and the All-Star Game this week has effectively granted the president the power to imprison civilians legally in the United States simply by declaring them enemy combatants.
That’s imprisoned indefinitely. As in forever.
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.
The decision was a victory for the Bush administration, which had maintained that a 2001 Congressional authorization to use military force after the Sept. 11 attacks granted the president the power to detain people living in the United States.
Republican apologists argue that Al Qaeda is so dangerous that this concentration of power in the hands of the Executive Branch is essential to defending our freedom. Nonsense. In what sense are we “free” when we can be imprisoned at the whim of the president?
The man at the center of this case, Ali al-Marri, is a citizen of Qatar legally in the United States on a student visa. He’s been charged with credit card fraud and making false statements as part of the 9/11 investigation. Al-Marri is not accused of having any connections to al-Qaeda or the Taliban or fighting against U.S. forces. He is accused of being involved in an unproven terrorist plot, which he denies.
Sounds like Jose Padilla, whose situation was very similar except that Padilla is an American citizen.
It appears to my untrained, non-attorney’s eyes that the administration has staked a claim to the power to imprison anyone in the U.S. for any reason under the pretext of national security. Glenn Greenwald at Salon, who knows a lot more about the legal complexities involved, agrees:
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.
Bear in mind that al-Marri was arrested in Peoria, Illinois, a long way from that military brig in South Carolina. He’s been there in solitary confinement for the last five years with no criminal charges having been brought against him.
This is the core of the issue, not whether al-Marri is a terrorist or even a terrorist sympathizer. The opinion written by Justice William Traxler for the Fourth Circuit Court’s ruling is chilling:
The President has cautioned us that “[t]he war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others.” –Pres. George W. Bush, State of the Union Address (Jan. 23, 2007). Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a “war on terror” has no bounds.
If the president declares a resident of the United States, citizen or no, to be an enemy combatant, that person can disappear into a military prison for the rest of his or her life. No trial, no appeal, no contact with the outside world.
At least one officially brilliant legal mind recognizes this dangerously flawed interpretation of the constitutional limits of the president’s power:
The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.
Know who wrote that? Dyed-in-the-wool conservative, icon of the Republican right, Justice Antonin Scalia — in his dissent to Hamdi v. Rumsfeld, the first case to test the power of the president to imprison by decree.
This was the type of government our ancestors fought to overthrow about 230 years ago. Where is the outrage today?
And why do so many American evangelical Christians, who of all people should understand the concept of liberty (remember, our rights are inalienable because they are endowed by our Creator), continue to defend this administration?
Perhaps most disturbing is that so little has been said about this by prominent Democrats. They don’t object to this unconstitutional expansion of the president’s authority; they’re just waiting for their turn to use it.