4th Circuit Court of Appeals to Bush: You Have Delusions of Grandeur (Congress, enemy)

[Jason_Els]

I haven't seen this mentioned here yet but it is an important rebuke to the Bush policy of subverting Constitutional protections in the name of security.

The U.S. Court of Appeals for the Fourth Circuit is considered the most conservative of all the Federal courts of appeal and for the court to release such a stinging opinion is completely out of character. It is important to note that the case involves a native of Qatar who was legally residing in the United States with his family. Ali Saleh Kahlah al-Marri was taken prisoner by civil authorities and then handed to military authorities where he has stayed without any writ of habeus corpus since his arrest in 2001 when he was accused of aiding al Qaeda. In 2002 al-Marri was also accused of credit card fraud but since his detention by the Federal government on the grounds that he is an enemy combatant, the charges have been dropped.

The decision essentially returns the case to the lower court and orders the Secretary of State to issue a writ of habeus corpus so that al-Marri can have his case tried in a court of law. Despite this ruling, the government does not have to release al-Marri. He could be remanded back to the civilian court system to face criminal charges, he could be deported, held for a relatively brief amount of time under the Patriot Act, or even held as a witness in a Federal grand jury investigation.

al-Marri may not be the poster boy for Constitutional protections against illegal search and seizure, but this ruling is important because it forcefully rebukes the Bush administration's policy of holding American citizens and legal residents as enemy combatants. The test will be to see if the Bush administration actually does as the court orders.

The following are excerpts from the court's decision:

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."

In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln famously asked: "[A]re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865 at 246, 254 (Don E. Fehrenbacher ed., 1989). The authority the President seeks here turns Lincoln's formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he 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. 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.

Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, [but when] the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. - United States Court of Appeals for the Fourth Circuit

[Aqualung]

I'm glad to see at least one branch of government is standing up to Bush. Congress doesn't have to guts to stand up to our would-be dictator.

[GregW]

About time. Now to see if Dubya bothers to notice.

[saganista]

Originally Posted by Aqualung

I'm glad to see at least one branch of government is standing up to Bush.

The courts, including the 4th Circuit, could have included such language as this in a variety of earlier opinions, all of which went principally against the President's claims of Article 2 powers as well. It is good to see such words at last delivered, but there remains the question...what took so long?

Originally Posted by Aqualung

Congress doesn't have to guts to stand up to our would-be dictator.

They have the guts...they don't have the votes. There are enough die-hards left in the Senate in particular to keep a majority of 60 from forming, and as well to prevent an override of Bushie vetoes, of which we may expect to see many more as these fortunately final years roll on. So long as this remains the case, Congress can draft bills, but it it can't get them enacted into law. I suspect we'll be hearing very little from right-wingers over the matter of dreaded obstructionism for a while...they'll be busy instead engaging in it...

[Jason_Els]

This is where impeaching and removing Gonzales comes in. Removing him requires only a simple majority. I think that would send a very definite message to the White House.

[saganista]

Cabinet officers can be and have been impeached. But the act would be a little like Bill Frist (another bozo) and his Nuclear Option for getting extremist judicial nominees confirmed to the bench. Enough damage has already been done to the republic by the hapless neocon folly of the Clinton impeachment that some pause should be taken in considering the use of this weapon again. We will not likely govern ourselves well or wisely if we must ever be on alert for the Impeachment of the Week. That said, if Mr. Bush continues to pay so much less attention to the will of his countrymen than he did in claiming all that 2004 political capital that, like everything else he has ever had in his life, he has now squandered, then use of the Impeach-Gonzalez option as a stick to dangle before the eyes of the imperious one may indeed become a tactic of choice. But there will have to be both a will and a way actually to invoke the option should His Stubbornness continue to refuse to budge in the face of overwhelming demands that he simply cut the crap...

[Jason_Els]

I think it late enough as it is. We've heard Gonzales' testimony before Congress. Either he has Alzheimer's or he's lying. Either way, he's unfit for the office he holds. I believe it more important that we have executive officers in place who hold the Constitution to be above any single person in government and in no executive office is that more important than the Attorney General. Using impeachment is extreme but then how many Attorneys General have we had flagrantly subvert the Constitutional process? I don't belive we've ever had a President refer to the Constitution he is sworn to uphold as, "just a piece of paper."

This country is in dire need of effective leadership that adheres to the legal framework of the government. Either do the job as described or get out, one way or the other. Congress does itself no favors by neglecting its duty just because the previous President faced the same charges.