You Can't Say You Weren't Warned

Just last Tuesday the Fourth Circuit Court of Appeals decided that President Bush has the power to indefinitely hold civilians captured in the U.S. If he determines you are an enemy combatant he can hold you in a military prison for as long as he wants and you have no recourse even if you are a U.S. citizen. As usual, Glenn Greenwald has an excellent synopsis of the case involving a Qatar citizen named Ali Saleh Kahlah al-Marri who came to the U.S. on September 10, 2001, to return to school.

The circuit court first heard the appeal last year the opinion then (59 pages) is a much different read than the most recent one (216 pages). In last year's opinion the three judge panel carefully addressed each point of contention and applied case law to each. I found it to be a very good example of how the legal language is parsed and meaning is determined. The panel also granted an en banc hearing in which a larger group of judges hears the appeal. Last Tuesday's opinion is the result of that. It rehashes much of last year's opinion but this one is tough to follow. Each judge concurs in part and disagrees in part but all in different parts so it's difficult to figure out what their trying to say. And then there are statements like this:

"I feel firmly, however, based on the facts presented, that al-Marri’s petition should be dismissed. The executive’s decision to detain him — or any similarly situated member of al Qaeda, lawfully in this country or not — is a proportionate response targeted precisely at those terrorists who slaughtered thousands of civilians on our soil and threaten to do the same to tens of thousands more."

This seems like a reasonable statement. And granted, when you read the government's accusations, it certainly seems like al-Marri could be a terrorist. But the question is, "What does the law say?" It matters not what you feel or that you think the president gave a proportionate response. What does the law say about al-Marri's right to habeas corpus and his status as an enemy combatant? Last year's opinion addressed that quite well. This one does not. It doesn't contain as much fear of terrorism as Justice Scalia's dissent in a recent Supreme Court ruling, but it has enough.

Most disturbingly, this opinion applies not only to legal and illegal aliens in America, but to American citizens as well. Not long after the attacks on September 11, 2001, Ari Fleischer, the White House spokesman told us that Americans "should be careful of what they say and what they do." As a nation we submit to the rule of law--more carefully than ever before.