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Fourth Circuit Rules al-Marri Must be Released from Military Detention

Fourth Circuit Rules al-Marri Must be Released from Military Detention

Jun-11-07 03:35 pm

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Ali Saleh al-Marri

The Fourth Circuit Court of Appeals ruled in a 2-1 decision that Ali Saleh al-Marri must be released from military detention. The opinion can be found here.

An analysis will follow-- but for now I would encourgage you to take a look at Marty Lederman's excellent posts over at Balkinization and quote Judge Diana Gribbon Motz's concluding comments from the majority opinion:

In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital.Lincoln famously asked: “[A]re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” Abraham Lincoln, Message to Congress in Special
Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865 at 246, 254 (Don E. Fehrenbacher ed., 1989). The authority the President seeks here turns Lincoln’s formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he
and his successors may exercise as they please.

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences
for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations
of our Republic.

Tags: enemy combatant detainees human rights terrorism

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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