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.
u201CTo sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Diana Gribbon Motz wrote, u201Ceven if the President calls them u2018enemy combatants,’ would have disastrous consequences for the Constitution — and the country.u201D
u201CWe refuse to recognize a claim to power,u201D Judge Motz added, u201Cthat would so alter the constitutional foundations of our Republic.u201D
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
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
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.
Chris Floyd [send him mail] is the author of Empire Burlesque: The Secret History of the Bush Regime.