Court Backs Bush on Military Detentions

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

          ---Benjamin Franklin 

This article was tucked neatly away at the bottom of the New York Times newspaper. It is a less than subtle reminder of the fascist state that America is becoming, or has become. 

President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.

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.

The court effectively reversed a divided three-judge panel of its own members, which ruled last year that the government lacked the power to detain civilians legally in the United States as enemy combatants.

Ali Al-Marri is the only person on the American mainland known to be held as an enemy combatant. The government contended, in a declaration from the defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

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.

“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,” said Jonathan L. Hafetz, a lawyer for Mr. Marri.

Mr. Marri’s unusual situation played a role, said Robert M. Chesney, a law professor atWake 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.”

“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 they could be tried on criminal charges and, if convicted, punished severely." 

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.”