Court Smacks Down "Enemy Combatant" Case

[Tuckerfan]

Of course, the administration plans an appeal.

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 ruled Monday.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the constitution — and the country,” the court panel said.

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.

W00t!

[MovieMogul]

Why was he specifically transferred to military detention when he was already in criminal custody? Why, to torture him, of course!:

Thus, the predicate for any authorization to militarily detain al-Marri simply was not present – he was already incapacitated and could no longer serve the enemy.

So why was he transferred? As the court suggests in note 16, he was transferred in order to subject him to coercive, possibly abusive, interrogation. For the first sixteen months of al-Marri’s military confinement, the Government did not permit him any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.

And if that – abusive interrogation – was the reason for the military detention, then Congress did not authorize it, even if al-Marri could have been militarily detained for incapacitation purposes in the first instance. As the court explains:

The Government’s treatment of others [in the criminal justice system] renders its decision to halt al-Marri’s criminal prosecution – on the eve of a pre-trial hearing on a suppression motion – puzzling at best. Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that “indefinite detention for the purpose of interrogation is not authorized.” 542 U.S. at 521. We note, however, that not only has the Government offered no other explanation for abandoning al-Marri’s prosecution, it has even propounded an affidavit in support of al-Marri’s continued military detention stating that he “possesses information of high intelligence value.” See Rapp Declaration. Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an “enemy combatant” only after he became a “hard case” by “reject[ing] numerous offers to improve his lot by . . . providing information.” John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006).

This paragraph explains, I think, why it is very unlikely that the government will prevail on appeal in this case–because not only wasn’t there any authorized reason for the transfer of al-Marri from criminal to military detention, but in fact the manifest actual reason for transfer was fundamentally illegitimate, unauthorized by Congress, and already proscribed by the Supreme Court.