I spoke about the al-Marri case here and here. For the moment, sanity has reigned ... though as the opinion emphasizes over four years after he was tossed in solitary military confinement ... in the appellate court. Yes, even in the administration's favored Fourth Circuit. The lede (h/t Marty Lederman):
For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.
As Marty notes in his follow-up post, the reason he is in military custody is suspicious, since al-Marri began in criminal custody, which would have kept an alleged "enemy" confined. This is after all the alleged reason for prisoners of war, though the term is suspect to the administration since it suggests certain rights it dare not admit such people have. This, Marty suspects, is the rub -- military confinement here would allow interrogation. And, we have hints via Padilla what that means in this context.
The heck with Miranda ... solitary, with years away from his family or even a lawyer, might just "help" things along. Wink. There are twenty million, by one estimate (in a book by David Cole), legal aliens residing in this country ... like al-Marri, apparently open season. That is, unless we respect the Constitution. Those on our soil, and even if we accept the legal insanity of those who don't want to apply the principle to Gitmo, it surely applies to the continental U.S. (e.g., Peoria, Illinois), are protected by the Due Process Clause. They are "persons" with basic rights to be treated fairly. The opinion notes that such treatment is not a "get out of jail free" card:
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. 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. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.
The ruling was 2-1, but even the dissent didn't buy the argument that the court did not have jurisdiction. As the majority notes, al-Marri didn't even have the questionable combatant status tribunal that people in Gitmo are (at various times) supplied. And, besides not being a "solidier" (the opening quote hints at the reasoning, though I did not read that section yet), again, due process clearly applies in this case. This is not someone picked up in the battlefield over in Afghanistan. It is someone who is giving aid and comfort to the enemy domestically ... an alleged criminal.
Expect an en banc request and a request for cert. ... and more time lingering in a condition that even as an "enemy combatant" or "unlawful combatant" or whatever they want to call this "person" that is unjust. And, if he is so clearly dangerous and guilty, it simply is not necessary ... a fair process would prove things out. Of course, the executive here wants open-ended power, and probably not just for power's sake (though, see Cheney, that's part of it).
Meanwhile, various Republicans are strongly of the opinion that Gonzo must go. But, hey, can't allow a "no confidence" vote or anything. Underlining how bad these people are is not really a pointless enterprise, actually. The fact that they can't even ALLOW a vote given who is involved here is simply pathetic. Roll call at the link ... a few noteable no shows.