The Progress Report:

CIVIL LIBERTIES

Constitutional Roadblock

In a "major setback" to President Bush's terrorism detention policies, the Fourth Circuit Court in Richmond, VA, yesterday ruled that "the President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention." In a 2-1 decision, the court declared that Ali Saleh Kahlah al-Marri, a Qatari national who is the last person on the American mainland known to be held as an enemy combatant, must be released from military detention. The ruling barred military detention of any civilian captured inside the United States, though the decision is limited to those who are in the country legally and have established connections here. The al-Marri ruling is only the latest in a series of blows to the Bush administration's detainee policy. In 2006, the Supreme Court ruled that the original military commissions set up by the administration "were unauthorized by federal statute and violated international law." Last week, two separate military judges ruled that the revised military commissions set up by the administration currently have no jurisdiction over any of the detainees at Guantanamo Bay because "there was a flaw in the procedure the military has used to file such charges against Guantanamo detainees." On Sunday, Gen. Colin Powell, Bush's first Secretary of State, publicly called for the closing of Guantanamo Bay and an end to the military commission system associated with it. As the New York Times writes today, this "ruling is another strong argument for bringing Mr. Bush's detention camps under the rule of law," which would entail repealing the Military Commissions Act of 2006, "closing Guantanamo Bay and...allowing the courts to sort out the prisoners...by the rules of justice that have guided this nation for more than 200 years."

A CIVILIAN DETAINED: In 2001, Al-Marri was legally residing in the United States as a student at Bradley University when he was arrested soon after Sept. 11 for credit card fraud and lying to federal agents. He was also considered an alleged material witness in the 9/11 attacks. "On June 23, 2003, just weeks before Mr. al-Marri's planned trial in the federal court, President Bush declared him an 'enemy combatant' in the 'war on terror' and ordered him transferred to military custody." He was then "held incommunicado" at the Naval Consolidated Brig in Charlestown, SC, "for 17 months while being interrogated under allegedly coercive and abusive conditions." In 2004, al-Marri's counsel filed a petition for a writ of habeas corpus, challenging his detention and beginning a process which eventually led to yesterday's decision. Writing for the majority, Judge Diana Gribbon Motz, wrote that al-Marri's original transfer to military custody was "puzzling at best," as the government offered no explanation for abandoning al-Marri's prosecution other than their assertion that he "possesses information of high intelligence value" through an alleged relationship with al-Qaeda. The court concluded, however, that "even assuming the truth of the government's allegations...the President's constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri," a citizen of a country in good standing with the U.S. who is in the country legally, "without criminal process any more than they permit the President to order the military to seize and detain without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing."

NOT AN ENEMY 'COMBATANT': The Court's decision is very specific in its ruling that the president's word alone is not sufficient to legally declare someone an "enemy combatant." Stating that while they "do not question the president's war-time authority over enemy combatants," the majority asserted that "absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the president with the power to exercise military authority over civilians within the United States." In calling al-Marri an "enemy combatant," the government never established that he "(1) is a citizen, or affiliate of the armed forces, of any nation at war with the United States; (2) was seized on or near a battlefield on which the armed forces of the United States or its allies were engaged in combat; (3) was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or (4) directly participated in any hostilities against United States or allied armed forces." Under the court's interpretation of precedent, a mere relationship to al-Qaeda is not enough to be classified an "enemy combatant" warranting indefinite military detention. Furthermore, the actual process for removing habeas status from someone declared an "enemy combatant," as laid out in the Military Commissions Act of 2006, requires a two-step process. First, "there must be an initial decision to detain; then, there must be a subsequent official decision by the government that the initial decision was 'proper.' The government never took the second step throughout al-Marri's entire detention, the Court determined.

A RETURN TO THE FEDERAL SYSTEM: As Powell said during his appearance on NBC's Meet The Press recently, abandoning the administration's misguided military detainee system does not mean the United States would "let any of those people go" who are suspected of terrorism. Rather, they would "simply" be moved to the United States and put "into our federal legal system." The Fourth Circuit Court, which is generally considered one of the most conservative appellate courts, reaches a similar conclusion in determining that while al-Marri is accused of "grave crimes," the prosecution of his case could and should be handled in the established criminal justice system. As Ken Gude, the Center for American Progress's Associate Director for International Rights and Responsibility, has argued, the administration should "close the prison at Guantanamo, and shift detainee operations to Ft. Leavenworth, KS." This move would allow the creation of a constitutional legal system for detainees that would provide for the conviction of terrorists. As it stands now, the lawless environment at Guantanamo and the questionable legal status of the current military commission system have dangerously tarnished the reputation of the United States abroad. These recent rulings against Bush's detainee policy underscore that the administration's extra-legal system has failed, and we should act expeditiously to move to a more just, constitutionally sound one.