4th Circuit: Military Can't Detain Civilians Under "Enemy Combatants" Statute

^{See also: Civil Liberties in the War on Terror (gallery)}

One would think that it goes without saying that the government can't arrest a suspect without a warrant, then transfer that suspect to military custody for four years of detention. On Tuesday, the conservative 4th Circuit Court of Appeals said it. Extended excerpt from the 2-1 majority ruling written by Judge Diana Gribbon Motz:

... [M]ore than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held even although the Government has never alleged that he is a member of any nation's military, has fought alongside any nation's armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends their detention, asserting that al-Marri associated with al Qaeda and "prepar[ed] for acts of international terrorism." It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute -- enacted four years after al-Marri's seizure -- strips federal courts of jurisdiction even to consider this habeas petition.

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government's allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri's conduct, he has committed grave crimes. But 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.

The Department of Justice has announced plans to appeal the case, so this initial ruling is not definitive. But as in the case of Judge Taylor's ruling in ACLU v. NSA, a federal judge has issued a strong rebuke to an administration that seems to present the belief that in any war, real or metaphorical, the executive branch should have unfettered power. If left unchecked, acts like the detention of al-Marri -- coupled with an informal declaration of an eternal, symbolic war -- could be milestones representing our government's transition from a liberal democracy into something else. The 4th Circuit's ruling has blocked one more avenue to this gloomy scenario.

Read more:

• Judges Say U.S. Can't Hold Man as "Combatant" (New York Times)
• The 4th Circuit's Majority Ruling in al-Marri v. Wright [Adobe PDF]