The-Hogs.net - Washington Football Discussion, Redskins to Commanders Era

Judges Say U.S. Can’t Hold Man as ‘Combatant’
By ADAM LIPTAK

The federal appeals court in Richmond, Va., ruled yesterday that the president may not declare civilians in this country to be “enemy combatants” and have the military hold them indefinitely. The ruling was a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism.

The ruling came in the case of Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., who is the only person on the American mainland known to be held as an enemy combatant. The court said the administration may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation.

“But military detention of al-Marri must cease,” Judge Diana Gribbon Motz wrote for the majority of a divided three-judge panel.

The court, the United States Court of Appeals for the Fourth Circuit, said a fundamental principle is at stake: military detention of someone who had lawfully entered the United States and established connections here, it said, violates the Constitution.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge 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.”

“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our republic.”

Does our constitution protect people from other countries only when they legally enter the country?

DesertSkin wrote:I'm curious 'cause, while I'm certainly not an expert on our constitution, I was always under the understanding that it protects US citizens and had no real bearing on non-citizens. I'd need to know those answers before I could really form an opinion. My guts tells me that if he was here legally, then he has some protections and military combatant isn't what he should be held under.

Irn-Bru wrote:
In the view of the authors of the constitution, it enumerates the natural rights of U.S. citizens and puts restraints on government power. It does not grant us our rights in any way.

Therefore, it doesn't make sense (to me) to think that non-American citizens somehow lack rights, or that the restrictions on governmental power don't apply when the civilians in question are non-citizens. If the government through the constitution is simply recognizing the rights of humans, and in particular American citizens, why should it be allowed to go out of its way to trample on the rights of others?

Irn-Bru wrote:On this same topic; I would consider seriously any presidential candidate that could in full conscience sign this 10-point commitment:

http://americanfreedomagenda.org/


Those that couldn't do so shouldn't be considered fit to lead our nation, in my opinion. My

DesertSkin wrote:Are you agruing that the right to free and peaceful assembly, the right to keep and bear arms, and the right to unreasonable searches are natural rights?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,

I see these as societial choices and, in our nation, granted to us as a right protected under the constitution.

Either way, I don't think it has much bearing on my orginal questions.

Yes -- sort of. All of these different "rights" are expressions of the basic natural rights of every human: life, liberty, property. If you have those three rights, you have all of the rights mentioned above, and more. But all of the "rights" that we normally think of can be pared down to those principles.

Once again, I'd argue that this is also the view of the founding fathers who wrote the constitution.

For example, here are the words from the Declaration of Independence, a document written before the constitution enumerated rights:

Quote:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,

If rights came from the consent of "society" (by which I think you mean the government), then it would be impossible to justifiably overthrow a tyrannical State against the will of the rulers, which is what the American independence thinkers claimed to be doing.

If this is true, then if an amendment to pass abolishing free speech and setting restrictions on what could be said when and where, would you agree that such an amendment was the will of the people and therefore Americans would no longer have a right to free speech? My description of that scenario would be that the government no longer recognizes the right to free speech, rather than saying that the people actually no longer have that right.

Well, I think that it does. If it is the case that there are no natural rights, and that Americans enjoy their rights because the constitution gives them such rights, then what Bush is doing shouldn't offend anyone's moral sensibilities -- at least not as far as human rights go.

If, on the other hand, one does hold the view that humans qua humans have natural rights, then what our government has been and continues to do is rather disturbing and wrong on the basis of these rights.

Irn-Bru wrote:In the view of the authors of the constitution, it enumerates the natural rights of U.S. citizens and puts restraints on government power.

KazooSkinsFan wrote:- By saying the Constitution "enumerates" our rights, that is implying if the constitution doesn't say it it's not a right. Not so. The other way around, if it's not a power enumerated to government it's not a power of government. Like Social Security, the Welfare state and so on

- By saying the government puts "restraints on government power" that implies the only restraints are the ones specified.

DesertSkin wrote:Personally, I think your view on this is dangerous. If that were/is true, then wouldn't our moral obligations and constitutional requirement be that we must alter or abolish all foriegn governments that do not provide and protect those right or does that text only apply to particular boundaries?

OK, maybe cultural is a better term. All I'm trying to point out is that some things we see in other culture as an important and fundamental right, is not a big deal in other cultures.

Yes, if it passed all the gates to become a constitutional ammendment. . .

While I respect your conclusion on the subject, I maybe phrased my orginal question wrong. I'm looking for legal precedents (SP??) or specific text in the constitution that clearly spells it out.

Irn-Bru wrote:

DesertSkin wrote:I'm curious 'cause, while I'm certainly not an expert on our constitution, I was always under the understanding that it protects US citizens and had no real bearing on non-citizens. I'd need to know those answers before I could really form an opinion. My guts tells me that if he was here legally, then he has some protections and military combatant isn't what he should be held under.

In the view of the authors of the constitution, it enumerates the natural rights of U.S. citizens and puts restraints on government power. It does not grant us our rights in any way.

Therefore, it doesn't make sense (to me) to think that non-American citizens somehow lack rights, or that the restrictions on governmental power don't apply when the civilians in question are non-citizens. If the government through the constitution is simply recognizing the rights of humans, and in particular American citizens, why should it be allowed to go out of its way to trample on the rights of others?

Our founders assumed natural rights for all mankind and sought to severely limit governmental power over all individuals.

They must follow the same laws, and, should they be accused of a crime, they should have the same due process that anyone else has.

Countertrey wrote:Still, no one has responded to Desertskins request for any history of case law on this. Does none exist?

I still am not sure what the "this" in that sentence (the word was "it" in Desertskins' post) is, precisely.

Serious questions: What constitutional rights do non-citizens have? Does our constitution protect people from other countries only when they legally enter the country? What if they're imprisoned in another country like in most Gitmo cases?

Gibbs4Life wrote:We are at war with radical Islam period (is there such thing as peacefull islam?).

All three judges yesterday agreed that a new law, the Military Commissions Act, did not defeat the court’s jurisdiction. The law says the federal courts have no jurisdiction to hear challenges from any noncitizen “who has been determined by the United States to have been properly detained as an enemy combatant.”

Unlike the men held at Guantánamo Bay, Cuba, Mr. Marri has not yet received even the cursory review of his designation as enemy combatant, performed by a military panel known as a combatant status review tribunal. The Military Commissions Act, Judge Motz concluded, “was not intended to,and does not, apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States.”

Mr. Marri was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University. He was charged with credit-card fraud and lying to federal agents, and he was on the verge of a trial on those charges when he was moved into military detention in 2003. He has been held for the last four years at the Navy brig in Charleston.

Mr. Marri’s transfer to military custody, Judge Motz wrote, is “puzzling at best.” The usual reason offered for the indefinite detention without charges of enemy combatants is to immobilize them and prevent them from returning to the battlefield. But Mr. Marri was already held pending his criminal trial.

June 12, 2007
Judges Say U.S. Can’t Hold Man as ‘Combatant’
By ADAM LIPTAK

The federal appeals court in Richmond, Va., ruled yesterday that the
president may not declare civilians in this country to be “enemy
combatants” and have the military hold them indefinitely. The ruling was a
stinging rejection of one of the Bush administration’s central assertions
about the scope of executive authority to combat terrorism.

The ruling came in the case of Ali al-Marri, a citizen of Qatar now in
military custody in Charleston, S.C., who is the only person on the
American mainland known to be held as an enemy combatant. The court said the administration may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation.

“But military detention of al-Marri must cease,” Judge Diana Gribbon Motz
wrote for the majority of a divided three-judge panel.

The court, the United States Court of Appeals for the Fourth Circuit, said
a fundamental principle is at stake: military detention of someone who had lawfully entered the United States and established connections here, it
said, violates the Constitution.

“To sanction such presidential authority to order the military to seize
and indefinitely detain civilians,” Judge 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 a statement, the Justice Department said it would ask the full Fourth
Circuit to rehear the case, which could eventually reach the Supreme Court. The statement added that Mr. Marri represented a danger to the United States.

“Al-Marri is an individual who trained at Osama bin Laden’s terrorist training camp in Afghanistan,” the Justice Department statement said. “In the summer of 2001, he met with Khalid Shaykh Muhammed, the mastermind of the September 11th attacks, and entered the United States just before September 11 to serve as an Al Qaeda sleeper agent and to explore methods of disrupting the U.S. financial system.”

“The president has made clear,” the statement continued, “that he intends
to use all available tools at his disposal to protect Americans from further Al Qaeda attack, including the capture and detention of Al Qaeda agents who enter our borders.”

Mr. Marri was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University. He was charged with credit-card fraud and lying to federal agents, and he was on the verge of a trial on those charges when he was moved into military detention in 2003. He has been held for the last four years at the Navy brig in Charleston.

Mr. Marri’s transfer to military custody, Judge Motz wrote, is “puzzling at best.” The usual reason offered for the indefinite detention without charges of enemy combatants is to immobilize them and prevent them from returning to the battlefield. But Mr. Marri was already held pending his criminal trial.

Judge Motz suggested that the government’s purpose in moving Mr. Marri to military custody was one the Supreme Court held improper in a 2004
decision, Hamdi v. Rumsfeld, that of subjecting him to harsh interrogation.

For his first 16 months in the brig, Mr. Marri was allowed no contact with his family or lawyers. He was, a lawsuit filed on his behalf in 2005 said,
denied basic necessities and subjected to extreme sensory deprivation.
Interrogators threatened to send him to Egypt or Saudi Arabia, the lawsuit
said, “where, they told him, he would be tortured and sodomized and here
his wife would be raped in front of him.”

Judge Motz, joined by Judge Roger L. Gregory, wrote that Mr. Marri might
well be guilty of serious crimes. But she said the government could not circumvent the civilian criminal justice system through military detention. The court reversed a lower-court decision that had denied Mr. Marri’s challenge to his detention.

Two other men have been held as enemy combatants on the American mainland since the Sept. 11 attacks. One, Yaser Hamdi, was freed and sent to Saudi Arabia after the Supreme Court allowed him to challenge his detention in 2004. The other, Jose Padilla, was transferred to the criminal justice system last year. He is now on trial on terrorism charges in federal court in Miami.

All three judges yesterday agreed that a new law, the Military Commissions Act, did not defeat the court’s jurisdiction. The law says the federal courts have no jurisdiction to hear challenges from any noncitizen “who has been determined by the United States to have been properly detained as an enemy combatant.”

Unlike the men held at Guantánamo Bay, Cuba, Mr. Marri has not yet received even the cursory review of his designation as enemy combatant,
performed by a military panel known as a combatant status review tribunal. The Military Commissions Act, Judge Motz concluded, “was not intended to, and does not, apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States.”

The majority and the dissenting judge, Judge Henry Hudson, visiting from
the Federal District Court for the Eastern District of Virginia, differed mainly on whether civilians may ever be classified as enemy combatants.

Because Mr. Marri was not alleged to have fought with the Taliban or the
armed forces of any enemy nation or to have engaged in combat with United States forces, Judge Motz wrote, Mr. Bush was powerless to have the military detain Mr. Marri any more than he could have ordered the military detentions of “the Unabomber or the perpetrators of the Oklahoma City bombing.”

In dissent, Judge Hudson wrote that Mr. Bush “had the authority to detain
al-Marri as an enemy combatant or belligerent” because “he is the type of
stealth warrior used by Al Qaeda to perpetrate terrorist acts against the
United States.”

Judges Motz and Gregory were appointed by President Bill Clinton, and
Judge Hudson by Mr. Bush. Jonathan Hafetz, one of Mr. Marri’s lawyers and the litigation director of the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law, said a contrary ruling could have had devastating consequences.

Under the administration’s theory, Mr. Hafetz said, “the executive could
effectively disappear people by picking up any immigrant in this country,
locking them in a military jail and holding the keys to the courthouse. This is exactly what separates a country that is democratic and committed
to the rule of law from a country that is a police state.”

The decision appears unlikely to have any immediate effect on the men held at Guantánamo. Judge Motz emphasized that the court’s analysis was limited to those with substantial connections to the United States who had been seized and detained within its borders.

Still, White House critics said the ruling was only the latest in a series
of setbacks for the administration.“Last Monday, two military judges handpicked to preside over the Guantánamo Bay trials rejected the claim that a presidential order alone was sufficient to give the courts jurisdiction over the detainees,” said Jennifer Daskal, advocacy director of the United States Program of Human Rights Watch. “And today, one of the nation’s most conservative courts squarely rejected the president’s unprecedented assertion that he, alone, could hand out the label of ‘enemy combatant’ without any sort of independent court review.”

The appeals court yesterday ordered the trial judge in the case to issue a
writ of habeas corpus directing the secretary of defense to release Mr.
Marri from military custody “within a reasonable period of time to be set
by the district court.” The government can, Judge Motz wrote, transfer Mr.
Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with a grand jury proceeding or detain him for a limited time under a provision of the U.S.A. Patriot Act.

But the military cannot hold him, Judge Motz wrote. “The president cannot
eliminate,” she wrote, “constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.”

KazooSkinsFan wrote:

Gibbs4Life wrote:We are at war with radical Islam period (is there such thing as peacefull islam?).

Yes

Believe me, I'm no liberal pansy on dealing with terrorists or the war on Islamic fanaticism. While I don't agree with all of Bush's actions I think he's a lot more right then the appeasement policy of the Democrats. But I have I have several Muslim friends and I would accuse them of no more inciting, supporting, condoning, advocating or understanding violence against anyone then I do.