"President can order the military to seize from his home and indefinitely detain anyone"

[kpete]

"Even in times of national peril-we must follow law-lest this country cease to be a nation of laws

Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone in this country - including an American citizen - even though he has never affiliated with an enemy nation, fought alongside any nation's armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power. 2 Even in times of national peril, we must follow the law, lest this country cease to be a nation of laws.


-Judge Motz, p7

From Judge Traxler, writing for the majority (p98):

Under the current state of our precedents, it is likely that the constitutional rights our court determines exist, or do not exist, for al-Marri will apply equally to our own citizens under like circumstances. This means simply that protections we declare to be unavailable under the Constitution to al-Marri might likewise be unavailable to American citizens, and those rights which protect him will protect us as well.

Another key passage from his majority opinion (p72):

I am of the opinion that the AUMF also grants the President the authority to detain enemy combatants who associate themselves "with al Qaeda, an entity with which the United States is at war," and "travel" to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets," even though the government cannot establish that the combatant also "took up arms on behalf of that enemy and against our country in a foreign combat zone of that war."

Nothing in that passage delinates some legal distinction between civilian enemy combatants and citizen ones. Why should it? The 5th Amendment, which is the basis of al-Marri's request for relief here does not make any distinction about citizenship versus mere presence on US jurisdiction. The 5th Amendment is a universal right. If the Majority thinks the government can ignore it for civilians, why would citizens have any extra protection under it?

.........

Finally, of the passages I've dug up on this, from Judge Motz' outstanding opinion in the minority (p7):

Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone in this country - including an American citizen - even though he has never affiliated with an enemy nation, fought alongside any nation's armed forces, or borne arms against the United States anywhere in the world.

more here:
http://www.dailykos.com/storyonly/2008/7/16/9368/98658/819/552423
http://www.openleft.com/showDiary.do?diaryId=6966

[razors edge]

1. This is a failed state.

As all states do, we to have entered the twilight and moved beyond. This post reminds me of something I read today on STR. Excerpted from the end of an article I don't fully agree with, but this part is about right.

It is not the anarchist who is guilty of wishful thinking. Those who believe that a single institution can be given a monopoly on force, the right to be the judge in cases against itself, and the sole right to interpret the laws binding itself, and then be expected to behave because of a piece of paper--they are the ones indulging in utopian fantasies.

[Winterblues]

2. Padilla comes immediately to mind

They have already done this and the Extreme Court ruled it just fine and dandy. Padilla is/was an American citizen picked up on the streets of Chicago. He was a gang member and the government said he was an enemy combatant and they locked him up for years without council or speedy trial or a jury of his peers. In fact they held him for years without even charging him of any crime.