Fourth Circuit Court Ruling Gives Bush Dictatorial Powers

Posted by Steven D., Booman Tribune at 4:39 AM on July 17, 2008.

Quick note from Joshua H: The headline on this piece was based on my December interview with the Center for Constitutional Rights' Michael Ratner -- who has fought like hell against Bush's claimed war powers. Ratner told me, "The difference between a police state and a nonpolice state is, fundamentally, whether the executive can pick you up and disappear you or whether you can go to a court and challenge the executive, whether you can say: 'What's the legal reason you're holding me?'"

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The Fourth Circuit Court of Appeals (one level below the Supreme Court) has just ruled that Bush was granted the unlimited power by Congress to detain indefinitely anyone in the United States (you, me, your teenage son or daughter, anyone at all) merely be declaring them an enemy combatant. In a split 5-4 decision the Fourth Circuit also held that said enemy combatant was permitted to "challenge" that detention, but failed to elaborate on what form that challenge should take. From the NY Times:

President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.

But a second, overlapping 5-to-4 majority of the court, the United States Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled. [...]

The court effectively reversed a divided three-judge panel of its own members, which ruled last year that the government lacked the power to detain civilians legally in the United States as enemy combatants. That panel ordered the government either to charge Mr. Marri or to release him. The case is likely to reach the Supreme Court.

How helpful the decision will be to Mr. Marri remains to be seen, as the majority that granted him some relief was notably vague about what the new court proceeding should look like. In that respect, Tuesday's decision resembled last month's decision from the United States Supreme Court granting habeas corpus rights to prisoners held at Guantánamo Bay.

Mr. Marri is the only person on the American mainland known to be held as an enemy combatant. The government contended, in a declaration from the defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system. [...]

Jonathan L. Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice at the New York University School of Law, called the Fourth Circuit's decision deeply disturbing.

"This decision means the president can pick up any person in the country -- citizen or legal resident -- and lock them up for years without the most basic safeguard in the Constitution, the right to a criminal trial," Mr. Hafetz said.

This is a "deeply disturbing" opinion, even though it comes from only one appellate court, and one of the more conservative ones at that. It points up the danger of allowing Republican Presidents to appoint judges to the Federal bench who have authoritarian and partisan leanings. I have little doubt that the same justices who signed off on this grant of unlimited power to the Executive Branch would have seen the matter very differently if a Democrat held the office of President.


Of course, Congress can resolve this issue simply by passing legislation limiting the effect of the 2001 Authorization for Use of Military Force (the AUMF, for short). I doubt those in Congress, which passed the AUMF shortly after 9/11, ever intended to grant the President the unlimited power to detain Americans merely by declaring them "enemy combatants." On the other hand, I seriously doubt that our current crop of Democrats will have the political courage necessary to revise the AUMF to limit the scope of the President's authority. Certainly not in an election year. They've already shown their cravenness in the debate over the amendments to FISA when they caved in to President Bush's demands. It's highly doubtful they would suddenly develop a spine on this matter, regardless of Bush's massive disapproval rating among Americans. Mention the wqrd "terrorism" and they all seem to cower in fear for their political lives, despite all the evidence that Republicans and their policies are loathed by a majority of Americans.


So, in effect, we are at the mercy of Justice Kennedy, the one conservative member of the Supreme Court who has shown himself willing to vote with the more liberal justices on issues involving the rights of individuals detained by the Bush administration as enemy combatants. Kennedy was the justice who wrote the most recent majority opinion which held that detainees at Guantanamo Bay had the right to invoke the writ of habeas corpus to challenge their detentions. If and when this case reaches the Supreme Court he will be the one who decides what rights, if any, persons detained by Bush will have.


We already know how the other eight justices will vote. Roberts, Alito, Thomas and Scalia demonstrated in the dissenting opinions written in the Boumediene v. Bush that they would have granted President Bush any authority he deemed necessary to indefinitely imprison individuals suspected of terrorist sympathies without any right of habeas corpus review in the federal courts.


Similarly, we know how the so-called "liberal" Justices Stevens, Ginsberg, Souter and Breyer will likely vote on the matter. They will probably decide that Bush cannot imprison American citizens or non-citizens without giving them the rights to (1) challenge their detentions in federal court, (2) be presented with the evidence against them, (3) cross-examine their accusers, and (4) present evidence showing that there is no basis in law or fact for their detention. It's also likely that these four justices would refuse to countenance the notion that the AUMF gave Bush a free hand to imprison anyone he saw fit. So, in the end, it will all depend on how Justice Kennedy interprets the Constitution and the AUMF. Only his opinion matters as to whether or not Bush is free to detain you or I as enemy combatants, and the extent to which we could challenge that detention in the federal courts.


Until that happens, be very careful what you say and to whom. For who knows what constitutes evidence of terrorist allegiance in the minds of our national security professionals. Mr. al-Marri still doesn't know what precise information landed him in prison as a suspected Al Qaeda sleeper agent. All he knows is that someone at the CIA signed an affidavit claiming that he was a terrorist. Because that is all it takes, my friends, to put you in prison and deprive you of your liberty. The opinion of one man. And until Congress or the Supreme Court holds otherwise you live in a police state, different from that of the former Soviet Union or Argentina under the rule of the Generals only by the degree to which that authority has been exercised -- so far.

Tagged as: bush, detentions, 4th circuit, enemy combatant status