July 17, 2008

Read at Your Own Risk, Then Weep

From the NY Times we learn what we always suspected and feared: BushCo has set up legal mechanisms to disappear anyone, anytime, for any reason. All hail the Emperor! (or else)
Court Backs Bush on Military Detentions
By ADAM LIPTAK, July 16, 2008
President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, [my bold] the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.
But a second, overlapping 5-to-4 majority of the court, the United States Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled.
The decision was a victory for the Bush administration, which had maintained that a 2001 Congressional authorization to use military force after the Sept. 11 attacks granted the president the power to detain people living in the United States.

[...] Mr. Marri was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science. He was charged with credit-card fraud and lying to federal agents, and was on the verge of a trial on those charges when he was moved to military detention in 2003.
Jonathan L. Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice at the New York University School of Law, called the Fourth Circuit’s decision deeply disturbing.
“This decision means the president can pick up any person in the country — citizen or legal resident — and lock them up for years without the most basic safeguard in the Constitution, the right to a criminal trial,” Mr. Hafetz said.
The 216-page decision included seven opinions, none of which commanded a majority. The only common ground was four unsigned paragraphs at the beginning of the decision summarizing the result.

The Fourth Circuit is generally considered the nation’s most conservative federal appeals court. The closely divided and complex decision in a major terrorism case therefore came as something of a surprise.
Mr. Marri’s unusual situation played a role, said Robert M. Chesney, a law professor at Wake Forest University. Mr. Marri “was lawfully present in the U.S. and then arrested and held here, as opposed to being a noncitizen captured in a foreign land,” Professor Chesney said. “This consideration makes his case more difficult even in the eyes of relatively conservative jurists.”
The five judges who ruled that the president has the authority to detain people captured in the United States offered differing criteria for who might be subject to such detention.
Judge Diana Gribbon Motz, writing for herself and three other judges, disagreed, saying that Mr. Marri was at most a civilian criminal who may be prosecuted in the courts but not detained by the executive branch.

“This does not mean that al Marri, or similarly situated American citizens, would have to be freed,” Judge Motz wrote. “Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the convicted September 11th conspirator [Zacarias Moussaoui] they could be tried on criminal charges and, if convicted, punished severely. But the government would not be able to subject them to indefinite military detention.”
J. Harvie Wilkinson, III
[...] All of the judges who would have denied Mr. Marri any relief — Judges Wilkinson, Karen J. Williams, Paul V. Niemeyer and Allyson K. Duncan — were appointed by Republican presidents; [my bold] all who would have granted him full relief were appointed by Democrats. [my bold] [This is why we need to VOTE!] Judge Traxler was appointed to the appeals court by President Bill Clinton.
In the conclusion of his long opinion, Judge Wilkinson said terrorism cases presented courts with special challenges.
“We may never know,” he said, “whether we have struck the proper balance between liberty and security, because we do not know every action the executive is taking and we do not know every threat global terror networks have in store.” [my bold] http://www.nytimes.com/2008/07/16/washington/16combatant.html?_r=3&oref=slogin&partner=rssuserland&emc=rss&adxnnlx=1216224087-H07S/h8Ofc89dLJCv5d%200A&pagewanted=print&oref=slogin
Indeed, Judge Wilkinson! Especially when the actions taken by the executive might be construed by some as part of a "global terror network." But you just following orders, c'nes pas?

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