Fourth Circuit to Reconsider Case : Why the Administration is So Scared

[cal04]

Fourth Circuit to Reconsider Case of "Enemy Combatant" al-Marri: Why the Administration is So Scared
by Jesselyn Radack

As I predicted in an earlier diary, the Fourth Circuit Court of Appeals, the most conservative appeallate court in the country, will reconsider its stinging panel decision that slammed the Bush Administration for continuing to detain "enemy combatant" Ali Saleh Kahlah al-Marri indefinitely without charge. Even though the decision has limited or nonexistent practical consequence -- it benefits only those who are both under the direction of an enemy nation and living legally in the U.S. (a non-existent class according to the Department of Homeland Security -- the Fourth Circuit has now agreed to en banc review (by the full 10-member court) of the 2 to 1 ruling the panel made. Why? Because the decision looks to treaty obligations under the Hague and Geneva Conventions and recognizes that the Administration's arguments run directly contrary to the Constitution, as interpreted through "two centuries of growth and struggle, peace and war. . ."


Before his arrest, al-Marri, a Qatari national, was attending graduate school at Bradley University in Illinois. He was legally in the United States when he was detained. Originally, the government held him on a "material witness" warrant. Then it charged him with making false statements. Less than a month before his trial was scheduled to begin, however, the government dropped its charges against him and declared him an "enemy combatant."

In the June 11, 2007 decision at issue -- written by Judge Diana Gribbon Motz - the three-judge panel was unanimous that the jurisdiction-stripping section of the Military Commissions Act of 2006 (MCA) did not apply to al-Marri. Therefore, the court could properly entertain his petition. In addition, the panel voted 2-1 in favor of al-Marri on the merits of his petition, holding that while the government is free to try al-Marri, it is not free to continue to detain him indefinitely without charge.

Thus far, only three people have been held in the United States as "enemy combatants." One is al-Marri. Another is just-cinvicted U.S. citizen Jose Padilla - initially touted as a "dirty bomb" plotter, but later tried on completely different charges. The third is Yaser Esam Hamdi, the Louisiana native whom the government first declared a serious threat to national security, and then set free on the condition that he move to Saudi Arabia and renounce his U.S. citizenship.

All three men were held for long periods of time in a South Carolina military brig, without charge and with spotty or no access to counsel. Al-Marri is still being held there, as he has been for the past four years. Padilla's case and Hamdi's case ended up before the Supreme Court. Al-Marri's, too, is likely headed there.

But if the al-Marri decision has such limited application -- only to those who are both under the direction of an enemy nation and living legally in the U.S. -- why is the Administration so worried? Because the Fourth Circuit's al-Marri decision looks not only to law-of-war principles, but also (gasp!) to treaty obligations under the Hague and Geneva Conventions and related principles of customary international law. The opinion thus draws a line between "combatants" (members of a nation's military, militia, or other armed forces, and those who fight alongside them) and "civilians" (all other persons). And it notes that al-Marri's detention was neither the "classic wartime detention" the government claimed had rendered Hamdi an enemy combatant, nor the "classic battlefield detention" the government claimed had rendered Padilla an enemy combatant.

More significantly, it recognizes that the Administration's arguments went directly contrary to the Constitution as interpreted through "two centuries of growth and struggle, peace and war . . ."

http://www.dailykos.com/story/2007/8/24/75536/0644

The Al-Marri Decision: A Victory for One Man, and for a Principle, But One With Limited or Nonexistent Practical Consequence
http://writ.news.findlaw.com/commentary/20070618_radack.html

[cosmicone]

1. This is great!! n/t

[malaise]

2. K & R

to stop the war criminals