In a ruling that will serve to further put a limit on President Bush’s definition of war powers, the 4th Circuit U.S. Court of Appeals ruled today that the administration can’t legally detain a legal U.S. resident as an enemy combatant with out charging him. By a 2-1 decision the court ruled that Ali Saleh Kahlah al-Marri was not stripped of his constitutional rights when was charged as an enemy combatant under the Military Commissions Act. In fact the court found that the Military Commissions Act does not apply to him. “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,” the court wrote.

The court continued, “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.”

Al-Marri is accused of legally reentering the U.S. on September 10, 2001 with his family as a part of an al-Qaeda sleeper cell designed to carry out follow up attacks after 9/11. Al –Marri was arrested in Peoria, IL and charged with being an enemy combatant. He was held for three and half years in a Navy brig in South Carolina. For the first 16 months of this time, he had no contact with the outside world. Since he was taken into taken into custody he was never formally charged with a crime, but under the first the Patriot Act then the Military Commissions Act, he was able to be detained without being charged. The legal question in this case was a fairly simple one. Do the president’s powers extend far enough to allow him to detain enemy combatants who are legal residents? The federal appeals court said it does not, they also cautioned against giving any president this much power.

The majority wrote, “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.”

As the court wrote, this decision does not mean that Al-Marri should be released. The decision is only limited to the questions of where he should be tried, and under what system. I am all for terrorists getting what they have coming to them, but in this case the precedents of the first WTC bombing and Oklahoma City, made it clear that legal U.S. residents must be tried in the civilian justice system. This is a well written decision. It also marks yet another set back for the administration’s legal doctrine that the president has unlimited war powers. He doesn’t, and it is nice to see that our system of checks and balances still works when called upon.

Text of the ruling

Jason Easley is the editor of the politics zone at  His news column The Political Universe appears on Tuesdays and Fridays at

Jason can also be heard every Sunday at 6:30 pm (ET) as the host of The Political Universe Radio Show at  blog radio 

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