Back to News & Commentary

Court Reviews President's Wartime Power Grab

Share This Page
November 1, 2007

Does the President want to implement a policy of presidential prerogative trumping the Constitution, international law, and… well…everything – not just on foreign soil, but in America’s heartland as well?

It sometimes seems that way. It was smack dab in the heart of the Midwest that Ali Saleh al-Marri was arrested in 2001. At the time, al-Marri was living with his wife and five children and studying at Bradley University in Peoria, Ill., He was arrested by the police in December and first charged in the civilian justice system for financial fraud. As a civilian, al-Marri should have enjoyed all the constitutional protections people expect when they are in the United States legally – a speedy, and fair trial for example.

But, just weeks before his trial, the President himself declared al-Marri an enemy combatant. He was promptly transferred to military custody and thrown into the isolation wing of a naval brig in Charleston, S.C. And there he has remained – uncharged – for the last four years. In all this time, the government has never alleged that al-Marri was part of any military force or that he ever took up arms against the United States; they’ve never said that anything that would appear to qualify al-Marri as a “combatant” at all.

Last June, in an adamant 2-1 decision, a panel of the 4th Circuit Court of Appeals ruled that President Bush had overstepped his authority by locking up al-Marri without charge. Yesterday, the full nine-person federal appeals court in Richmond, Va.,reviewed that decision.

This case is undoubtedly headed to the Supreme Court. In the meantime, the 4th Circuit would do well by upholding the original decision. The first panel rightly found that, “the President lacks power to order the military to seize and indefinitely detain al-Marri.” It’s that simple. Endless military detention for someone who legally resides in the United States is an extreme affront to the Constitution.

But perhaps more convincing to those who aren’t as big of fans of the Bill of Rights as we are, there’s little evidence that military detention of civilians is necessary to prosecute crimes of terrorism. In the original decision, Judge Diana Gribbon Motz wrote “We 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. This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians – let alone imprison them indefinitely.”