Appeals Court Orders Enemy Combatant Free by Military

[insane man]

June 11, 2007
Appeals Court Orders Enemy Combatant Free by Military
By ADAM LIPTAK

In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, Judge Diana Gribbon 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.”

The ruling was handed down by a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., in the case of Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant.

Mr. Marri, whom the government calls a sleeper agent for Al Qaeda, was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.

He has been held for the last four years at the Navy Brig in Charleston, S.C.

Judge Motz wrote that Mr. Marri may well be guilty of serious crimes. But she said that the government cannot circumvent the civilian criminal justice system through military detention.

Mr. Marri was charged with credit-card fraud and lying to federal agents after his arrest in 2001, and he was on the verge of a trial on those charges when he was moved into military detention in 2003.

The government contended, in a partly declassified declaration from a senior 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.

Two other men have been held as enemy combatants on the American mainland since the Sept. 11 attacks. One, Yaser Hamdi, was freed and sent to Saudi Arabia after the United States Supreme Court allowed him to challenge his detention in 2004.

The other, Jose Padilla, was transferred to the criminal justice system last year just as the Supreme Court was considering whether to review his case. He is now on trial on terrorism charges in federal court in Miami.

A dissenting judge in today’s decision, Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, wrote that President Bush “had the authority to detain al-Marri as an enemy combatant or belligerent” because “he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States.”

Jonathan Hafetz, the litigation director of the Liberty and National Security Project of the Brennan Center for Justice at New York University School of Law and one of Mr. Marri’s lawyers, said of the court’s decision: “This is landmark victory for the rule of law and a defeat for unchecked executive power. It affirms the basic constitutional rights of all individuals — citizens and immigrants - in the United States.”

Writing for the majority, Judge Motz ordered the trial judge in the case to issue a writ of habeas corpus directing the Pentagon “within a reasonable period of time” to do one of several things with Mr. Marri. He may be charged in the civilian court system; he may be deported; or he may be held as a material witness; or he may be released.

“But military detention of al-Marri,” Judge Motz wrote, “must cease.”

Times (http://www.nytimes.com/2007/06/11/washington/11cndcnd-combatant.html)

[hotballa]

I'm not cool with the president having the power to declare who's an enemy combatant and who isn't, but this guy does seem to be the kind of guy that we're all looking out for. The enemy combatant term is fine with me, I just think it needs more oversight to prevent abuse.

[giddyup]

I really doubt that President Bush made the call on this guy...

[tigermission1]

I'm not cool with the president having the power to declare who's an enemy combatant and who isn't, but this guy does seem to be the kind of guy that we're all looking out for. The enemy combatant term is fine with me, I just think it needs more oversight to prevent abuse.

How about bringing forth the evidence and putting the guy on trial?

That's a radical idea for ya...

[Major]

I really doubt that President Bush made the call on this guy...

You missed the point entirely.

[mc mark]

You missed the point entirely.

No he didn't.

My question is what is Bush and his justice department afraid of to let these people have an open and fair trial?

[geeimsobored]

How about bringing forth the evidence and putting the guy on trial?

That's a radical idea for ya...

I understand some of the criticisms of the administration regarding trying possible terrorists in courts but yes at the very least use the court-martial system.

In fact, I think the court-martial system is the perfect compromise and the infrastructure for it is already set up.

[KingCheetah]

Yet another example of liberal trial lawyers emboldening the terrorists.

[insane man]

I really doubt that President Bush made the call on this guy...

isn't that even worse. that some flunkie from liberty law is making these decisions?

[Sishir Chang]

Its good to see a return of the rule of law, hopefully....

[Major]

No he didn't.

My question is what is Bush and his justice department afraid of to let these people have an open and fair trial?

Yes, and giddyup focused on Bush specifically and not his administration (the justice department), thus missing the point. :)

In his world, if Bush doesn't do something himself, he's not responsible for it.

[Deckard]

How about bringing forth the evidence and putting the guy on trial?

That's a radical idea for ya...
Why? Wouldn't you rather just torture the guy and see if he'll tell you anything?



D&D. Replicant Democrat.

[HayesStreet]

Why? Wouldn't you rather just torture the guy and see if he'll tell you anything?



D&D. Replicant Democrat.

Is it possible that having an 'open' trial would reveal too much about the methods we use to find, track, and/or detain terrorists?

[mc mark]

Is it possible that having an 'open' trial would reveal too much about the methods we use to find, track, and/or detain terrorists?


[edit] If we don't torture, kidnap and fly people to undisclosed prisons around the world, detain people without access to lawyers or the courts what's the problem?

[HayesStreet]

[edit] If we don't torture, kidnap and fly people to undisclosed prisons around the world, detain people without access to lawyers or the courts what's the problem?

I'm not sure what you're saying. I don't think this article is talking about flying people to undisclosed prisons in other countries, is it? I'm asking if having an open trial might reveal too much about how we find, track, and detain terrorists.

[DonkeyMagic]

I'm not sure what you're saying. I don't think this article is talking about flying people to undisclosed prisons in other countries, is it? I'm asking if having an open trial might reveal too much about how we find, track, and detain terrorists.

he's complicating this issue with bringing up another.

[mc mark]

he's complicating this issue with bringing up another.


For the slow people on the board I'm saying if we don't do those things, then we should have no problem having open and fair trials for detainees.

[pgabriel]

Is it possible that having an 'open' trial would reveal too much about the methods we use to find, track, and/or detain terrorists?

so we shouldn't have open trials on drug dealers, murderers, rapists burgulars etc etc.

[HayesStreet]

For the slow people on the board I'm saying if we don't do those things, then we should have no problem having open and fair trials for detainees.

Well, actually I don't think 'kidnapping' per se is illegal. Secret prisons in other countries doesn't have anything to do with this issue. OTOH saying 'let's not do those things' when we're talking about 'finding, tracking, and detaining terrorists' seems like you're purposely avoiding the question at hand. Further, there doesn't seem to be any reason to call someone slow when you're not on point at all.

[HayesStreet]

so we shouldn't have open trials on drug dealers, murderers, rapists burgulars etc etc.

I don't believe I said that. What I asked was whether or not an open trial would compromise our ability to find, track, and catch terrorists. Strange how people keep answering with non-answers or other questions. If you really want to say "yes, it would - but it's worth the tradeoff" then say that, lol.

[geeimsobored]

Is it possible that having an 'open' trial would reveal too much about the methods we use to find, track, and/or detain terrorists?

So use a court-martial instead.

[pgabriel]

I don't believe I said that. What I asked was whether or not an open trial would compromise our ability to find, track, and catch terrorists. Strange how people keep answering with non-answers or other questions. If you really want to say "yes, it would - but it's worth the tradeoff" then say that, lol.


I know what you said, the point is that is our judicial system. open trials. you don't pick and choose who you want open trials for. lol

[DonkeyMagic]

Well, actually I don't think 'kidnapping' per se is illegal. Secret prisons in other countries doesn't have anything to do with this issue. OTOH saying 'let's not do those things' when we're talking about 'finding, tracking, and detaining terrorists' seems like you're purposely avoiding the question at hand. Further, there doesn't seem to be any reason to call someone slow when you're not on point at all.


first rule of message boards. when in doubt...insult. stupid ;)

[Deckard]

Is it possible that having an 'open' trial would reveal too much about the methods we use to find, track, and/or detain terrorists?
I think we should operate under the US Constitution. I also think that the Bush Administration has been so blatantly trampling that Constitution and the Bill of Rights that people should be outraged, with Bush and Cheney facing impeachment. From a political point of view, as a Democrat, I haven't been for actually impeaching the two, although they certainly deserve it. Addressing your comment, either we have a system of laws governing this nation, or we don't. I believe you operate under that system of laws and don't make up your own or ignore them based on an entire series of "what ifs." Anything can and has been justified using the "logic" of the Bush Administration.

Follow the Constitution and let the chips fall where they may. I have faith in our justice system. Following the logic of Bush and his crew could very well lead us down a path towards the kind of "democracy" exercised in Egypt and Pakistan, where democracy is a sham, and the ruling government does whatever it likes under the guise of "national security." That's not the America I want, and I don't think it is the America you want, either. Did you ever imagine, in your wildest dreams, that you would see the President, the Vice-President, and their administration defending the use of torture? Do you want to be held indefinitely, without counsel, because of a mistake, and have no recourse? Think about it.



D&D. Replicant Democrat.

[pgabriel]

talk about slippery slope

[NewYorker]

I think you let them go back to where you found them. After all these years, I doubt they are of much value. Send them back to Afganistan and let the gov't there decide what to do with them.

[mc mark]

Well, actually I don't think 'kidnapping' per se is illegal. Secret prisons in other countries doesn't have anything to do with this issue. OTOH saying 'let's not do those things' when we're talking about 'finding, tracking, and detaining terrorists' seems like you're purposely avoiding the question at hand. Further, there doesn't seem to be any reason to call someone slow when you're not on point at all.

First off the slow comment wasn't directed towards you.

Second are you seriously saying kidnapping isn't illegal? And secret prisons have everything to do with your question.

Anyway, I'll answer your question clearly and distinctly. No, if we are following the law, I don't think that having open and fair trials would hinder our ability to find, track and detain terrorists or anybody for that matter.

[giddyup]

Yes, and giddyup focused on Bush specifically and not his administration (the justice department), thus missing the point. :)

In his world, if Bush doesn't do something himself, he's not responsible for it.
My response was to a response to the article not the story itself...

[HayesStreet]

So use a court-martial instead.

That's a possibility for sure. But that would still have to be different than an 'open' trial. Would the defending counsel get a free hand to question the government on their informants with AQ, for example? Would they get to ask anything about the technology used to find and track these guys? The point is that the defense is obviously going to press these pain points whether or not the guy is actually AQ or whatever.

I know what you said, the point is that is our judicial system. open trials. you don't pick and choose who you want open trials for. lol

Your argument is 'that's the way it is.' Hardly compelling and doesn't answer my question.

I think we should operate under the US Constitution. I also think that the Bush Administration has been so blatantly trampling that Constitution and the Bill of Rights that people should be outraged, with Bush and Cheney facing impeachment. From a political point of view, as a Democrat, I haven't been for actually impeaching the two, although they certainly deserve it. Addressing your comment, either we have a system of laws governing this nation, or we don't. I believe you operate under that system of laws and don't make up your own or ignore them based on an entire series of "what ifs." Anything can and has been justified using the "logic" of the Bush Administration.

Follow the Constitution and let the chips fall where they may. I have faith in our justice system. Following the logic of Bush and his crew could very well lead us down a path towards the kind of "democracy" exercised in Egypt and Pakistan, where democracy is a sham, and the ruling government does whatever it likes under the guise of "national security." That's not the America I want, and I don't think it is the America you want, either. Did you ever imagine, in your wildest dreams, that you would see the President, the Vice-President, and their administration defending the use of torture? Do you want to be held indefinitely, without counsel, because of a mistake, and have no recourse? Think about it.



D&D. Replicant Democrat.

Or it could lead us down the same road other perfectly functioning democratic states have gone down like England or France, who have far less protections for the individual in national security matters. I'm not saying we should be cognizant of the potential slippery slope but neither should we pretend that is the probable or necessary outcome.

[pgabriel]

Your argument is 'that's the way it is.' Hardly compelling and doesn't answer my question.


I apologize oh ultimate judge of arugments

[DonkeyMagic]

sometimes "thats the way it is" is as good of an answer as you can get

[Deckard]

Or it could lead us down the same road other perfectly functioning democratic states have gone down like England or France, who have far less protections for the individual in national security matters. I'm not saying we should be cognizant of the potential slippery slope but neither should we pretend that is the probable or necessary outcome.
So you would prefer the system of France and Britain, both of which have fewer rights for the individual, to our own? Hayes, I simply can't believe you are serious. Guilty until proven innocent? That isn't our system, and damned well should never be.



D&D. Replicant Democrat.

[HayesStreet]

Second are you seriously saying kidnapping isn't illegal?

I don't think it is. See the Court decisions about the FBI kidnapping the Achille Lauro terrorist, or the old Kerr-Frisbee doctrine. It is not illegal for the government to seize someone and transport them into custody, even when they are out of the country.

And secret prisons have everything to do with your question.

No, you are referencing extradordinary rendition - this guy the article talks about is not a case of that - he is being held in a Navy brig, not Turkey.

Anyway, I'll answer your question clearly and distinctly. No, if we are following the law, I don't think that having open and fair trials would hinder our ability to find, track and detain terrorists or anybody for that matter.



See above - if the defense is allowed to cross examine and find out about informants, technology used, and techniques - I think it is haphazard at best to claim that wouldn't compromise our efforts to stop terrorism.

So you would prefer the system of France and Britain, both of which have fewer rights for the individual, to our own? Hayes, I simply can't believe you are serious. Guilty until proven innocent? That isn't our system, and damned well should never be. D&D. Replicant Democrat.

Not necessarily, Deckard. But the point I'm making is that everyone repeatedly points to a Egyptian style democracy/dictatorship as the end result of these policies, when there are a lot more possibilities than that including in democracies functioning as reasonably well as our own.

[pgabriel]

sometimes "thats the way it is" is as good of an answer as you can get

that really isn't what I'm saying. What I'm saying is that you can't make special provisions to go around the constitution because you feel that one type of criminal is more dangerous than the other. we have a justice system.

the issue as I understand isn't even about open trials, it was about bush deeming these guys enemy combatants and therefore avoiding the justice system for citizens or foreigners here legally. changing the justice system isn't an option, it sets a bad precedent imo.

[HayesStreet]

that really isn't what I'm saying. What I'm saying is that you can't make special provisions to go around the constitution because you feel that one type of criminal is more dangerous than the other. we have a justice system.

You can - illegals who get caught at the border don't get trials by jury, etc. They get some of the benefits of our system but not the whole shebang.

the issue as I understand isn't even about open trials, it was about bush deeming these guys enemy combatants and therefore avoiding the justice system for u.s. citizens. changing the justice system isn't an option, it sets a bad precedent imo.

This guy wasn't a citizen.

[pgabriel]

You can - illegals who get caught at the border don't get trials by jury, etc. They get some of the benefits of our system but not the whole shebang.



This guy wasn't a citizen.


before you replied I edited my post to also include people here legally.

[Deckard]

Not necessarily, Deckard. But the point I'm making is that everyone repeatedly points to a Egyptian style democracy/dictatorship as the end result of these policies, when there are a lot more possibilities than that including in democracies functioning as reasonably well as our own.
And, again, you are OK with that?



D&D. Replicant Democrat.

[HayesStreet]

And, again, you are OK with that? D&D. Replicant Democrat.

Well, to be fair I don't think you've answered my question.

But to answer your question - I have strong concerns about the government being forced to reveal in an 'open' trial the people, methods and technology used to track terrorists. I am not against a check on the executive branch, maybe a special magistrate or something, but I am not really bothered by the lack of open proceedings. I do not think the current policy is optimal, but I am not persuaded by the doomsaying propagated by some.

before you replied I edited my post to also include people here legally.

I think you mean 'after' I replied. :)

[pgabriel]

really this boils down to your philosophy about fighting terrorists. is this a law enforcement issue or is it a military issue.

[pgabriel]

I think you mean 'after' I replied. :)


not to argue, but you had clicked reply but your post wasn't there even after I edited mine. so you're half right

[NewYorker]

what does it mean to be a terrorist? If you are fighting under the Taliban are you a terrorist - or a religious zealot army volunteer?

A guy with a gun who wants to shoot up Americans probably isn't a terrorist. Just a POW. Could some of those guys be used in terrorist plots? Probably...but so could 10,000 other psyho's running around Afganistan.

Point isn't that they should just be released and set free. The should be sent back to their home and let the gov't there decide what to do with them. The idea that after numerous years of being imprisoned that they have any useful information is ridiculous. They have no knowledge. They are merely POW's now.

[HayesStreet]

not to argue, but you had clicked reply but your post wasn't there even after I edited mine. so you're half right

Well, we know that I at least clicked reply before you edited since my post quotes your quote pre-edit. We only have your assertion that your edit happened before I hit reply.

But I'm a glass half full kinda guy so... ;)

what does it mean to be a terrorist? If you are fighting under the Taliban are you a terrorist - or a religious zealot army volunteer?

A guy with a gun who wants to shoot up Americans probably isn't a terrorist. Just a POW. Could some of those guys be used in terrorist plots? Probably...but so could 10,000 other psyho's running around Afganistan.

Point isn't that they should just be released and set free. The should be sent back to their home and let the gov't there decide what to do with them. The idea that after numerous years of being imprisoned that they have any useful information is ridiculous. They have no knowledge. They are merely POW's now.

What does fighting under the Taliban have to do with this guy? He was arrested IN the US.

[insane man]

But to answer your question - I have strong concerns about the government being forced to reveal in an 'open' trial the people, methods and technology used to track terrorists. I am not against a check on the executive branch, maybe a special magistrate or something, but I am not really bothered by the lack of open proceedings. I do not think the current policy is optimal, but I am not persuaded by the doomsaying propagated by some.

the notion that majority of people dont understand this concern is wrong.

everyone gets it. thats why you can have military courts martial. you can have only attorneys with security clearances see evidence. there are tons of ways to balance that. what is currently happening isn't a balance. it is a farce.

the mca of 06 isn't not 'optimal' it is a kangaroo court.

ps: we dont need an egyptian style government. we can just send people to egypt to have an egyptian style torture. or wait we have secret prisons too.

[DonkeyMagic]

we can just send people to egypt to have an egyptian style torture. or wait we have secret prisons too

secret prisons does not mean torture.

[mc mark]

secret prisons does not mean torture.

Then why are they secret?

[insane man]

secret prisons does not mean torture.

well im sure nothing is torture to you short of ripping off an arm.

i think you are lying to yourself id you dont think in this case secret prisons are torturing.

[DonkeyMagic]

well im sure nothing is torture to you short of ripping off an arm.

i think you are lying to yourself id you dont think in this case secret prisons are torturing.

sorry, but a secret prison is not automatically torture. If you think torture is going on there, that is one thing, but that 1st statement is true,,,secret prison does not automatically mean torture is being done.

thats my point. Nothing is torture to me? really? Wow, i learned something new about myself.

[mc mark]

sorry, but a secret prison is not automatically torture. If you think torture is going on there, that is one thing, but that 1st statement is true,,,secret prison does not automatically mean torture is being done.




Seriously insane man! How can you argue with that logic?

[insane man]

sorry, but a secret prison is not automatically torture. If you think torture is going on there, that is one thing, but that 1st statement is true,,,secret prison does not automatically mean torture is being done.

i dont care.

secret prisons that the CIA operates in eastern european nations and perhaps others practice 'torture' in the international law sense.

i can make an irrelevant statement and shift the argument too. semantics are cute and all...but so what. secret prisons that US operates commit torture.

[DonkeyMagic]

i dont care.

secret prisons that the CIA operates in eastern european nations and perhaps others practice 'torture' in the international law sense.

i can make an irrelevant statement and shift the argument too. semantics are cute and all...but so what. secret prisons that US operates commit torture.

lol. :D

you dont care then why did you respond. thats always a good conversation starter and really opens things up..."i dont care".


implying one thing means another, when it does not, is always cute as well...but you dont care so its all good

[HayesStreet]

the notion that majority of people dont understand this concern is wrong.

That's your opinion, not fact. I think this thread shows that many people don't even get that far in their analysis.

everyone gets it. thats why you can have military courts martial. you can have only attorneys with security clearances see evidence. there are tons of ways to balance that. what is currently happening isn't a balance. it is a farce.

Giving an Al Qaeda attorney a security clearance doesn't really solve the problem. :eek:

[geeimsobored]

That's a possibility for sure. But that would still have to be different than an 'open' trial. Would the defending counsel get a free hand to question the government on their informants with AQ, for example? Would they get to ask anything about the technology used to find and track these guys? The point is that the defense is obviously going to press these pain points whether or not the guy is actually AQ or whatever.

Well, here's the difference. Court-martials are set up to provide a level of protection for the military. There isn't a way for outside influences like the media to get in and find out what's going on. And as for the trial itself, all involved would be members of the military, including the attorney who would be part of something like a JAG unit. (similar to how the military commissions work)

The big difference is that court martials actually have standards for evidence, unlike the military commissions. Also, the defense is guaranteed fundamental rights like the ability to review the evidence. Now I know you'll say that presents the possibility of an intelligence leak but at some point there's a limit. Everyone in the room is part of the military except the defense who's being held so it's not like he can really leak anything.

Court-martials, in my opinion, provide a reasonable balance for both sides.

[JayZ750]

Well, we know that I at least clicked reply before you edited since my post quotes your quote pre-edit. We only have your assertion that your edit happened before I hit reply.

But I'm a glass half full kinda guy so... ;)

c'mon pgab, why'd you back down....your back and forth was fun. you could have come back with, "Ya, but my post doesn't have an 'Last Edited By' tagline, and yours was 9 minutes after mine, so clearly I had finished my edit before you finished youre reply!"

let's try and keep this spat going!

[HayesStreet]

Well, here's the difference. Court-martials are set up to provide a level of protection for the military. There isn't a way for outside influences like the media to get in and find out what's going on. And as for the trial itself, all involved would be members of the military, including the attorney who would be part of something like a JAG unit. (similar to how the military commissions work)

The big difference is that court martials actually have standards for evidence, unlike the military commissions. Also, the defense is guaranteed fundamental rights like the ability to review the evidence. Now I know you'll say that presents the possibility of an intelligence leak but at some point there's a limit. Everyone in the room is part of the military except the defense who's being held so it's not like he can really leak anything.

Court-martials, in my opinion, provide a reasonable balance for both sides.

Seems reasonable. Can you court martial a civilian?

[insane man]

Seems reasonable. Can you court martial a civilian?

im not sure. but congress would certainly pass legislation to allow courts martial of civilians.

[DreamRoxCoogFan]

Yet another example of liberal trial lawyers emboldening the terrorists.

i really hope your joking.

[mc mark]

i really hope your joking.


He is.