Imprisonment without charges unconstitutional

Editorial

A ruling Monday that President Bush does not have the constitutional authority to detain a legal U.S. resident indefinitely without charges in a Navy brig in South Carolina was narrowly crafted to the facts of the case and studiously avoided discussing prisoners held in similar circumstances at Guantanamo Bay in Cuba.

But the ruling could do a great deal to undermine some of the extravagant claims made for the president’s powers in wartime – even a time when Congress has not declared war as the Constitution requires.

Ali al-Marri was born in Qatar and was living with his family in Peoria, Ill., and studying computer science at Bradley University when he was arrested Dec. 12, 2001. He was originally charged with credit card fraud and lying to federal agents. But federal investigators claim he trained with al-Qaida in Afghanistan, met with 9/11 mastermind Khalid Shaikh Muhammad in the summer of 2001 and was dispatched by al-Qaida as a “sleeper agent” to the United States.

In 2003, on the verge of a trial on the original charges, he was designated an “enemy combatant” and moved to the Navy brig in Charleston, S.C. He was not allowed to see family or lawyers for 16 months, and according to a brief filed on his behalf in 2005, was subjected to harsh interrogation techniques.

On Monday a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that keeping him in a military prison indefinitely was beyond the president’s authority. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them ‘enemy combatants,’” wrote Judge Diana Motz for herself and Judge Roger Gregory, “would have disastrous consequences for the Constitution – and for the country.”

The court – including the Bush-appointed Judge Henry Hudson, who dissented on the main finding – agreed that al-Marri was exempt from a law passed last fall (yet to be tested judicially) that bars Guantanamo detainees from access to U.S. courts. He was living in the United States legally rather than having been captured on a foreign battlefield. Therefore U.S. courts had proper jurisdiction over his case.

The Justice Department has announced it will appeal the case to the full 13-judge Fourth Circuit, sitting en banc. However that goes, the result is likely to be appealed to the U.S. Supreme Court.

We hope the court agrees that simply imprisoning U.S. residents without filing charges is repugnant to the U.S. Constitution and to the very concept of the rule of law.