Via Adam B, via email: “The Fourth Circuit today held that this Administration violated the Constitution by holding Ali Saleh Kahlah al-Marri as an enemy combatant in a military brig without formally charging him for years.”
From the opinion (.pdf).
For over two centuries of growth and struggle, peace and war, the
Constitution has secured our freedom through the guarantee that, in the
United States, no one will be deprived of liberty without due process of
law. Yet more than four years ago military authorities seized an alien
lawfully residing here. He has been held by the military ever since —
without criminal charge or process. He has been so held despite the fact
that he was initially taken from his home in Peoria, Illinois by
civilian authorities, and indicted for purported domestic crimes. He has
been so held although the Government has never alleged that he is a
member of any nation’s military, has fought alongside any nation’s armed
forces, or has borne arms against the United States anywhere in the
world. And he has been so held, without acknowledgment of the protection
afforded by the Constitution, solely because the Executive believes that
his military detention is proper.While criminal proceedings were underway against Ali Saleh Kahlah
al-Marri, the President ordered the military to seize and detain him
indefinitely as an enemy combatant. Since that order, issued in June of
2003, al-Marri has been imprisoned without charge in a military jail in
South Carolina. Al-Marri petitions for a writ of habeas corpus to secure
his release from military imprisonment. The Government defends this
detention, asserting that al-Marri associated with al Qaeda and
“prepar[ed] for acts of international terrorism.” It maintains that the
President has both statutory and inherent constitutional authority to
subject al-Marri to indefinite military detention and, in any event,
that a new statute — enacted years after al-Marri’s seizure — strips
federal courts of jurisdiction even to consider this habeas petition. We
hold that the new statute does not apply to al-Marri, and so we retain
jurisdiction to consider his petition.Furthermore, we conclude that we must grant al-Marri habeas relief. Even
assuming the truth of the Government’s allegations, the President lacks
power to order the military to seize and indefinitely detain al-Marri.
If the Government accurately describes al-Marri’s conduct, he has
committed grave crimes. But we 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.This does not mean that al-Marri must be set free. Like others accused
of terrorist activity in this country, from the Oklahoma City bombers to
the surviving conspirator of the September 11th attacks, al-Marri can be
returned to civilian prosecutors, tried on criminal charges, and, if
convicted, punished severely. But the Government cannot subject al-Marri
to indefinite military detention. For in the United States, the
military cannot seize and imprison civilians — let alone imprison them
indefinitely.
I’m sure Roberts and Alito will disagree, but it certainly is refreshing to see the courts slapping down this unitary executive theory. Bravo to the Fourth District.
