Court Says Military Cannot Hold 'Enemy Combatant' (AP and NYT)
The Bush administration cannot use new anti-terrorism laws to keep
U.S. residents locked up indefinitely without charging them, a
divided federal appeals court said Monday. The ruling was a harsh
rebuke of one of the central tools the administration believes it has
to combat terror.
"To sanction such presidential authority to order the military to
seize and indefinitely detain civilians," Judge Diana Gribbon Motz
wrote, "even if the President calls them 'enemy combatants,' would
have disastrous consequences for the Constitution — and the country."
"We refuse to recognize a claim to power," Judge Motz added, "that
would so alter the constitutional foundations of our Republic."
In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel
found that the federal Military Commissions Act doesn't strip Ali al-
Marri, a legal U.S. resident, of his constitutional rights to
challenge his accusers in court. It ruled the government must allow
al-Marri to be released from military detention.
Now we've got something going on. Now there's a little something to
play for. This ruling draws a clear line in the sand on one of George
W. Bush's most egregious abuses of the illegitimate power he was
given (by the courts) in 2000: his self-proclaimed, arbitrary,
unchecked right to designate anyone he pleases an "enemy combatant"
and keep them locked up indefinitely in military detention.
Now it seems certain that the case will reach the Supreme Court, and
we will have a clear-cut answer at last: Are we still a semblance of
a Republic, where our liberties are inalienable – or is our freedom
simply the "gift" of an autocrat (elected or otherwise), who can
bestow it or take it away at his own will?
Bush tried to enshrine this bogus, banana-republic power into law
last year, with the ludicrous and sinister Military Commissions Act
(MCA) that breezed through Congress with the full-throated "jawohls"
of the rubber-stamp Republicans and the mildest, most token
opposition from the Democrats. In usual Bushist fashion, the law was
weasel-worded in such a way as to leave huge, deliberate ambiguities
in its meaning. Thus Democrats and the few "moderate" Republicans
could say that it was intended only for suspect foreigners (as if it
were OK to lock up anyone in the world indefinitely on the
unchallengeable say-so of whatever moral idiot manages to slither
down the greasy path to the White House). But Bushist cognoscenti –
especially those in the courts – could use the same language to
uphold the Dear Leader's dictatorial powers.
But Bush has run into a spot of bother lately with a few of his
judicial appointees – such as Judge Reggie Walton, who handed down a
stiff sentence to Scooter Libby – that honorable and respected public
servant who tried to flim-flam the FBI about his role in crippling
the nation's ability to stop the spread of nuclear weapons. (Walton
also had some choice words for the Establishment types who intervened
on behalf of poor, poor, poor little Scooter.) And now the 4th
District, where the Administration has tried to steer all of the
cases involving its tyrannical usurpations, has betrayed the Master
as well. For the appeals panel clearly saw – and openly named – the
true intentions of the MCA, as SCOTUSblog notes:
The Circuit Court found the government's claim of "inherent"
presidential authority to order military detention of civilians to
be "breathtaking," and was broad enough even to allow detention of
U.S. citizens.
And so the judges confirmed what we have been saying here for months:
that the MCA was indeed designed to codify full-blown dictatorial
powers for the president – the most open attempt yet to kill off the
Republic and bury its body in the Crawford scrub brush. Whatever its
obfuscatory language, the intent of the bill was crystal clear, a
clarity the judges noted today – but which the Democratic leadership
has still not recognized even now, having refused so far to use their
new majority powers to strike down the MCA: something they could have
done during their first week in office.
Now comes the scary part: the ascent of the case to the Supreme
Court. For although Bush has let a few honest conservative jurists
slip into the system – largely by accident or through inattention, no
doubt – he has taken special pains in placing rock-ribbed loyalists
on the Supreme Court, even elevating one of them, the dim time-server
John Roberts, to the role of Chief Justice. It is almost certain that
Roberts and his fellow Bush creation, Samuel Alito, will vote for the
Boss when the case comes before them. Likewise, the ludicrous and
sinister Clarence Thomas – a creation of Bush I, who obviously took
cynical delight in foisting this resentful, underqualified,
ideological hack on the nation, especially as a replacement for an
historical figure like Thurgood Marshall – will toe the family line,
as he did in rewarding Little Georgie the presidency in 2000. The
irony is that the case may hinge on the genuinely disturbed mind of
Antonin Scalia, who has occasionally shown an independent bent on
these Constitutional questions.
The Marri case has been shaky from the beginning. I first wrote about
it in July 2003 ("Troubled Sleep: Getting Used to the American
Gulag"):
A few days after the Faris "triumph," [the kidnapping – by Bush
agents – of U.S. citizen Iyman Faris) the Regime took things a step
further, actually removing a terror suspect from the judicial system
and plunging him into the limbo-land of military custody. Illinois
graduate student Ali al-Marri had been imprisoned since December
2001, after Ashcroft told his agents to round up "anyone with a
Muslim-sounding name," the Village Voice reports. Held for months on
minor charges, al-Marri, a Qatari national, was finally accused of
being a "sleeper agent"…
But al-Marri maintained his innocence, refusing to "cooperate" with
Ashcroft's agents. So the Commander himself intervened, declaring the
miscreant an "enemy combatant"-- although federal agents admitted
he'd neither taken up arms against America nor planned any terrorist
attacks, Knight-Ridder reports. Even so, he's now at the mercy of
Bush's khaki kangaroo court.
Marri, like Jose Padilla, was obviously being used as a test case to
establish the Bushists' "right" to seize anyone it wanted to and
subject to them to whatever treatment they wanted to dish out. But
today's court ruling struck explicitly at these claimed powers. As
SCOTUSblog notes:
The key part of the ruling on presidential powers declared: "Even
assuming the truth of the government's allegations [against al-
Marri], the President lacks the power to order the military to seize
and indefinitely detain al-Marri....[W]e have found no authority for
holding that the evidence offered by the Government affords a basis
for treating al-Marri as an enemy combatant, or as anything other
than a civilian....The President's constitutional powers do not allow
him to order the military to seize and detain indefinitely al-Marri
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."
"In light of al-Marri's due process rights under our Constitution and
Congress's express prohibition in the Patriot Act on the indefinite
detention of those civilians arrested as 'terrorist aliens' within
this country," the majority said, "we can only conclude that in the
case at hand, the President claims a power that far exceeds that
granted him by the Constitution."
"The President claims a power that far exceeds that granted him by
the Constitution." This has been one of the overarching themes of
this blog, and of my journalism in general, since I wrote my first
column on this subject ("Panic Attack: A Blank Check for Tyranny") on
September 21, 2001 – just ten days after the 9/11 attacks. Everything
that we have seen unfold over the past six years – the outrageous
abuses of authority, the lawlessness, the gulag, the torture, the
instigation of a monstrous war of aggression – was seeded in
the "enabling act" that Congress granted to Bush four days after the
attack. That legislation – again, deliberately weasel-worded in such
an ambiguous manner that Democrats could claim that it limited the
president's response to the attacks while the Bushists – and some
courts as well – have used it as, well, a blank check for tyranny.
Although today's ruling is most welcome, it is a tragedy that we have
come to this point at all: that a federal court has been forced to
consider the "question" of whether a president has the arbitrary
power to stick people in military dungeons without charges for as
long as he likes. Why should this even be a question, a matter for
debate? And bear in mind, as we have noted here before, these cases
involving the incarceration of Bush's Terror War captives still do
not address the even more sinister power that the Bush Administration
has claimed, and acted upon: the arbitrary power to kill anyone it
arbitrarily declares an enemy of the state. Bush has even devolved
this authority to lower-ranking agents in the field, giving them,
literally, a license to kill.
We have supp'd full with horrors, and there are more to come. But the
appeals court ruling is still a draught of clean water – some relief
from the witch's brew we've been forced to drink for so long.
Sic Semper Tyrannis: A Slap in the Face of the Crawford Caligula
Chris Floyd, Empire Burlesque
:: Article nr. 33620 sent on 12-jun-2007 17:08 ECT
www.uruknet.info?p=33620
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