What follows appeared yesterday in the Times. It's a stinging rebuke of the president, and those who supported his extralegal practices. Though most Republicans of intelligence and good faith [*] have jumped ship, and no longer support the Bush administration, a few have not. This post is for them.
For years, President Bush has made the grandiose claim that the Congressional authorization to attack Afghanistan after 9/11 was a declaration of a “war on terror” that gave him the power to decide who the combatants are and throw them into military prisons forever.
Yesterday, in a powerful 2-to-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit utterly rejected the president’s claims. The majority made clear how threatening the administration’s policies are to the Constitution and the rule of law — and how far the administration has already gone down that treacherous road.
Mr. Bush, the majority said, does not claim these powers for dire emergencies but “maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the presidency, which he and his successors may exercise as they please.”
The prisoner in this case, a citizen of Qatar named Ali al-Marri, was living in the United States legally when he was arrested and charged with being an Al Qaeda terrorist. In 2003, Mr. Bush declared Mr. Marri an enemy combatant, took him from civilian authorities and threw him into a military brig where he remains today without charges being filed.
The court did not say Mr. Marri was innocent, nor that he must be set free. It said that the law does not give Mr. Bush the power to seize a civilian living in the United States and declare him to be an enemy combatant based on whatever definition he chooses to apply. If Mr. Marri is to be kept in prison, it said, he must be tried and convicted in a civilian court.
The ruling said the Constitution and numerous precedents made it clear that foreigners living legally in this country have the same right to due process as any American citizen. It found no merit in the president’s claim that the Congressional approval of the use of military force in Afghanistan gave him authority to change that or that he has “the inherent authority” to do it on his own. Sanctioning that kind of authority “would have disastrous consequences for the Constitution — and for the country,” the judges said.
The judges said their ruling applied only to people living legally in the United States and not to the prisoners in Guantánamo Bay. But the court’s powerful arguments may be relevant to a large number of those men. Steven Shapiro, legal director of the American Civil Liberties Union, said the ruling would not help those prisoners who were captured on a battlefield and properly imprisoned as combatants. But there are hundreds of prisoners who were not taken on a battlefield but instead were picked up by the military or intelligence agents around the world and classified as combatants because of their association with Al Qaeda. The ruling said that was not an adequate definition of combatant.
This ruling is another strong argument for bringing Mr. Bush’s detention camps under the rule of law. Congress can do that by repealing the odious Military Commissions Act of 2006, which endorsed Mr. Bush’s twisted system of indefinite detentions, by closing Guantánamo Bay and by allowing the courts to sort out the prisoners — not according to the whims of one president with an obvious disdain for the balance of powers but by the rules of justice that have guided this nation for more than 200 years.
[*] I said this is for republicans of "intelligence and good faith." Whak-a-dozers who listen to Rush can stick with their boy-king president.