Court slaps Bush down…again

In the latest setback for the Bush Administration, a federal appeals court slapped the President down for violating the constitutional rights of a U.S. resident through use of the questionable and discredited “military tribunals.”

Even worse for Bush, the rebuke came from a conservative federal appeals court that the White House thought would rule favorably but the court said the President cannot order people locked up as long as he wants by calling them “enemy combatants.”

Instead, the court ruled, Bush should follow the law and the Constitution but the President, as he always does, plans to appeal.

The fight continues.

The Associated Press reports:

The three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that the government should charge Ali al-Marri, a legal U.S. resident and the only suspected enemy combatant on American soil, or release him from military custody.

The federal Military Commissions Act doesn’t strip al-Marri of his constitutional right to challenge his accusers in court, the judges found in Monday’s 2-1 decision.

“Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants,'” the court said.

Such detention “would have disastrous consequences for the Constitution — and the country,” Judge Diana G. Motz wrote in the majority opinion, which was joined by Judge Roger Gregory. Judge Henry E. Hudson, a federal judge in Richmond, dissented.

“This is a landmark victory for the rule of law and a defeat for unchecked executive power,” al-Marri’s lawyer, Jonathan Hafetz, said in a statement. “It affirms the basic constitutional rights of all individuals — citizens and immigrants — in the United States.”

The government intends to ask the full 4th Circuit to hear the case, Justice Department spokesman Dean Boyd said.

“The President has made clear that he intends to use all available tools at his disposal to protect Americans from further al-Qaida attack, including the capture and detention of al-Qaida agents who enter our borders,” Boyd said in a statement.

The court said its ruling doesn’t mean al-Marri should be set free. Instead, he can be returned to the civilian court system and tried on criminal charges.

In his dissent, Hudson said the government properly detained al-Marri as an enemy combatant.

“Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States,” wrote Hudson, who was appointed to the federal bench by President Bush. The other two judges were appointed by President Bill Clinton.

The decision is the latest in a series of court rulings against the Bush administration’s anti-terrorism program.

Last August, a federal judge in Detroit said the government’s domestic spying program violated constitutional rights to free speech and privacy, and the constitutional separation of powers. Five months later, the Bush administration announced it would allow judicial review of the spying program run by the National Security Agency.

A year ago, the Supreme Court threw out Bush’s system of military trials for detainees at Guantanamo Bay, saying he had exceeded his authority and was in violation of international treaties. The Republican-led Congress then pushed through legislation authorizing war-crime trials for the detainees and denying them access to civilian courts.

But last week, military judges barred the Pentagon from prosecuting two of the Guantanamo detainees because the government had failed to identify them as “unlawful” enemy combatants, as required by Congress. The decisions were a blow to efforts to begin prosecuting dozens of detainees the government regards as the nation’s most dangerous terrorism suspects.

Al-Marri has been held in solitary confinement in the Navy brig in Charleston, S.C., since June 2003. The Qatar native has been detained since his December 2001 arrest at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11, 2001, terrorist attacks to study for a master’s degree at Bradley University.

Federal investigators found credit card numbers on al-Marri’s laptop computer and charged him with credit card fraud. Upon further investigation, the government said, agents found evidence that al-Marri had links to al-Qaida terrorists and was a national security threat. Authorities shifted al-Marri’s case from the criminal system and moved him to indefinite military detention.

Al-Marri has denied the government’s allegations and is seeking to challenge the government’s evidence and cross-examine its witnesses in court. Hafetz said prosecutors haven’t charged his client because they lack evidence, “or the evidence they’ve obtained is through torture, unreliable or unacceptable in civilized society.”

Al-Marri is currently the only U.S. resident held as an enemy combatant within the U.S.

Jose Padilla, who is a U.S. citizen, had been held as an enemy combatant in a Navy brig for 3 1/2 years before he was hastily added to an existing case in Miami in November 2005, a few days before a U.S. Supreme Court deadline for Bush administration briefs on the question of the president’s powers to continue holding him in military prison without charge.

Yaser Hamdi, an American citizen captured in Afghanistan in 2001, was released to his family in Saudi Arabia in October 2004 after the Justice Department said he no longer posed a threat to the United States. As a condition of his release, he gave up U.S. citizenship.

If the government’s stance was upheld, civil liberties groups said, the Justice Department could use terrorism law to hold anyone indefinitely and strip them of the right to use civilian courts to challenge their detention.

The Bush administration’s attorneys had urged the federal appeals panel to dismiss al-Marri’s challenge, arguing that the Military Commissions Act stripped the courts of jurisdiction to hear cases of detainees who are declared enemy combatants. They contended that Congress and the Supreme Court have given the president the authority to fight terrorism and prevent additional attacks on the nation.

The court, however, said in Monday’s opinion that the act doesn’t apply to al-Marri, who wasn’t captured outside the U.S., detained at Guantanamo Bay or in another country, and who has not received a combatant status review tribunal.

“The MCA was not intended to, and does not apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States,” the court said.

The court also said the government failed to back up its argument that the Authorization for Use of Military Force, enacted by Congress immediately after the Sept. 11 attacks, gives the president broad powers to detain al-Marri as an enemy combatant. The act neither classifies certain civilians as enemy combatants, nor otherwise authorizes the government to detain people indefinitely, the court ruled.

The case, which is expected to reach the Supreme Court, could help define how much authority the government has to indefinitely detain those accused of terrorism and to strip detainees of their rights to challenge the lawfulness or conditions of their detention.


  1. gene

    Laughing!!!!!! And I’m sure Bushie-boy/idiot/moron/looser /murderer/lier/evil/human-trash/asshole /arrogant/delusional….want loose any sleep over this.

  2. anthny

    I would not call that a bitch slap, but a little slap on the wrist. And of due course the regime will appeal.
    A Bitch Slap would be the regime going to prison for ____________fill in the blank. They have broken every law under our constitution.

  3. Editor

    For a conservative court to rule this way is a stunning rebuke.

    The headline stands as written.

  4. Steve Horn

    However, this administration doesn’t need a bitch slap – they need a size 13 boot in the ass.

    Hudsons comments were chilling – “Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States”

    Think about it – the guy didn’t break any laws – it was just assumed that he was associating with people who may (or may not) have been giving consideration to breaking laws. Perhaps the fact that he was a graduate student put him on the radar (as yet another intellectual).

    This isn’t even an Orwellian “Thought Crime” – this is someone elses assumption that you have the potential to engage in a thought crime!

    The Soviet Gulag was filled to the brim with intellectuals who, it was feared, might, at some time in the future, give consideration to speaking out against “the state”.

    For the past few years I’ve been mistaken – I’d thought that Bush used Hitler as a role model – it would appear that he’s been using Stalin all along.

    Dog help us all –


  5. PazMir

    Congratulations to the Fourth Circuit Court! Fascinating, isn’t it, that this conservative court should be displaying some balls while those newly-elected Democrats are still searching for theirs.

  6. Donnat

    who are interested in upholding the Constitution! This could be the start of something good.

    Or maybe that guy’s mullet hairdo appealed to their Bush supporter sensibilities…


  7. SteveGinIL

    …to emplace judges at all levels, especially, of course, in the Supreme Court, so that when overruled at one level, they could just take it to the next level and get approval on at least SOME things they do, either by the SCOTUS okaying them or a lower court doing so and the plaintiffs giving up at some level. Every little bit the Bushies/imperialists/royalists prevail is another bit of America down the tubes. They know it and are taking the long view. And all the progressives and Liberals who jump from one Bush “gotcha” to the next – spreading themselves all over the place – are playing into their hands. Rather than leaving some of them to hammer on each point, ALL the Liberals like lemmings scurry from one “Bush done it agin'” to the next, until one of these days the seaside cliff will loom up and they will all flee over the side, wailing, “Bush is a fuckup!” all the way to their doom.
    The Liberals are completely right in all of it, but their strategies are those of a snitch, with no thought but to think themselves superior, while all around them Rome burns…
    They all look around and blame Bush for the problems around us, but Bush couldn’t get away with it unless the checks didn’t work. All along it was the GOP Senate enablers and the Doormat Democrats whom the Liberals elected year after year and who – when the chips were down and the republic was on the line – worried more about offending people or groups – or letting themselves be mischaracterized by the right – than about fighting for the nation and The People. Too scared to oppose Bush after 9/11 (though it started decades earlier), they were paralyzed for fear of being accused of being unpatriotic or weak on terrorism, they WERE weak – terrorized by the words of Insane Cheney and the Village Idiot. If the Dems had fought as the true representatives of The People, We The People wouldn’t be in this mess. A government of checks and balances only works when those checks stand up and call them on their illegalities. Some did (Kennedy, Kucinich and Byrd come to mind, certainly), but too many were wusses when we needed more battlers.
    And all along our rights and our freedoms are being whittled away.
    Throw out the bums – ALL OF THEM!

  8. a.knight

    is that the Bush Admin’s time in office is almost over, and the conservatives are beginning to look ahead to a possible Democratic President. One Dem candidate seems to strike pure terror into a Contemporary Conservative’s mind. I don’t want them to dip into their color-coordinated emergency box of Depends, so aI’ll just use initials: HRC.

    Today’s Boston Globe had a relevant article:

    Charlie Savage, “Disaffected conservatives set a litmus test for ’08 – Want vow to curb presidential power“, Boston Globe, June 12, 2007

    The article states that a brand new conservative political group called American Freedom Agenda, put together by Richard Viguerie, a well-known long term PitchmanCon along with with Bob Barr and David Keene. Barr was for The Patriot Bill before he was against it, and voted for its First incarnation. Looking at Keene’s authorship at The American Conservative Union, which he chairs, I could not discern just when he turned against Bush as a non-conservative, but it was after the 2004 election, and he was blaming the Dems for Iraq as early as November 29, 2006. How’s that for CaponHawk Cut-n-Runaway? The ACU’s home page is currently attempting to scare their readership with pictures of both Hillary and Nancy prominently placed on it. What is it with Modern Conservatives rabid fear of Female Democratic Politicians anyway? Is it based on some creepy Freudian mom fixation, personal performance anxiety, or are they all just a little bit Foley deep down in their repressed subconsciousnesses?