Anthony Barnett (London, OK): A report this morning in the The New York Times: "The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention." Judge Diana Gribbon Motz said, writing for the majority in a ruling by the federal appeals court in Richmond, Virgina. The Times describes the ruling as, “a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism”.
It relates to a man who on the face of it seems to have been a Bin Laden recruit. If so, say the court, he should be charged properly. Ali al-Marri, a citizen of Qatar now in military custody in South Carolina, is the only person in the US known to be held as an enemy combatant. The court said the administration “may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation”.
“But military detention of al-Marri must cease,” it ruled. According to the Times, the United States Court of Appeals for the Fourth Circuit said, "a fundamental principle is at stake: military detention of someone who had lawfully entered the United States and established connections here... violates the Constitution. 'To sanction such presidential authority to order the military to seize and indefinitely detain civilians,' Judge Motz wrote, 'even if the president calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country. We refuse to recognize a claim to power,' Judge Motz added, 'that would so alter the constitutional foundations of our republic.'"
What seems striking to me is that in the United States such a ruling, however belated, has a popular appeal. It draws on its “constitutional patriotism” – see my post below. Here, by contrast, when judges made similar decisions to prevent detention without charge they are accused of being unpatriotic, out-of-touch, old fogies: traitors even betraying the country to political correctness and strange European rules, see Tony Blair’s recent letter to the country in the Sunday Times (and an OK post about it) when he attacked Lord Hoffman for a making a ruling on exactly the lines of the US appeals court.
