Tuesday, June 12, 2007

Al-Marri Case

I am certain that all of you have been keeping up with the Al-Marri case in the 4th Circuit. Yesterday, that court decided 2-1 that the government had to either release Al-Marri or transfer him back to civilian criminal authorities. He has been held in a Naval Prison off Charleston for 4 years.

The opinion runs 86 pages. I've only skimmed it and am not an expert on the issues it addresses, but I am struck by something.

The majority opinion is long and the dissent is short. I like short opinions.

Furthermore, the majority is confusing and the dissent is much clearer. I like clear opinions.

The dissenter, who was a District Court judge sitting by designation, clearly articulated why he disagreed with the majority and gave good reasons. Here's the clearest part:

While I commend the majority on a thoroughly researched and
impressively written opinion, I must conclude that their analysis
flows from a faulty predicate. In my view, the appellant was
properly designated as an enemy combatant by the President of the
United States pursuant to the war powers vested in him by Articles
I and II of the United States Constitution and by Congress under
the Authorization to Use Military Force (AUMF).

At this point, the only opinions that matter are the opinions of the Supreme Court, so I'll spare ya'll my analysis. But thanks, Judge Hudson, for a clear opinion.

One more thing: the majority includes a "parade of horribles" that goes beyond the actual facts of the case. Al-Marri is not a U.S. citizen, but they include this paragraph:

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.
The eloquence is great and I am glad to know that the 4th Circuit is out there protecting me, but why talk about detaining citizens in a case where no citizen has been detained, especially when the primary purpose of the dicta is to make an emotional appeal?


Mark said...

Are you having as much fun as I am studying for the bar?

Thomas Richie said...

Yes. Or no. Maybe. I don't know.

Who is John Galt?