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June 11, 2007

Fourth Circuit Rules Bush Has No Authority To Imprison Committed Terrorists As "Unlawful Enemy Combatants"

The curious claim? The very fact that this particular terrorist posed entirely as a civilian -- even while preparing to wage covert war on the US -- somehow takes him out of the category of "combatant" and puts him in the more favorable category of "civilian." In other words, if you're an unlawful combatant but comport yourself with some of the rules of warfare, you can be permanently detained as an enemy combatant captured on the battlefield; but if you're an unlawful combatant who observes none of the rules of warfare, you get a get-out-of-detainment-free card courtesy of the US Constitution.

It's oft-stated that the Constitution "is not a suicide pact." Au contraire says the Fourth Circuit.

I'm getting awfully sick of these assholes:

[A]bsent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. 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. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.”

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

There's some reason for optimism; Orin Kerr at Volokh predicts the Supreme Court will reverse, if the Fourth Circuit doesn't reverse itself in an en banc reconsideration.


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posted by Ace at 09:08 PM

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