Saturday, June 16, 2007

Sanity prevailing...?

Anonymous Liberal tells us that there may yet be a spark of sanity in the courts:
Earlier this week, a panel of the Fourth Circuit Court of Appeals held that the government did not have the authority to detain Ali Saleh Kahlah Al-Marri–a Qatari national who had come to the United States on a student visa–indefinitely without process. Al-Marri, who the government claims is a terrorist, has spent the last four years in a military brig in South Carolina. He has not been charged with a crime or even an immigration violation.

In its court filings, the Bush administration argued that Congress had implicitly provided statutory authority for this sort of detention when it passed the Authorization for Use of Military Force (AUMF) shortly after 9/11. The Fourth Circuit rejected this argument, noting that “if Congress intended to grant this authority it could and would have said so explicitly.”

The Court then pointed out an obvious historical flaw in this argument:

In fact, shortly after Congress enacted the AUMF, it enacted another statute that did explicitly authorize the President to arrest and detain “terrorist aliens” living within the United States believed to have come here to perpetrate acts of terrorism. . . .

[T]he Patriot Act establishes a specific method for the Government to detain aliens affiliated with terrorist organizations, who the Government believes have come to the United States to endanger our national security, conduct espionage and sabotage, use force and violence to overthrow the government, engage in terrorist activity, or even who are believed likely to engage in any terrorist activity. Congress could not have better described the Government’s allegations against al-Marri — and Congress decreed that individuals so described are not to be detained indefinitely but only for a limited time, and by civilian authorities, prior to deportation or criminal prosecution.

In sum, Congress has carefully prescribed the process by which it wishes to permit detention of “terrorist aliens” within the United States, and has expressly prohibited the indefinite detention the President seeks here. The Government’s argument that the President may indefinitely detain al-Marri is thus contrary to Congress’s expressed will.


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