Just a week after the only two detainees at Guantanamo Bay charged with crimes had the charges against them thrown out by military courts, the only captive in the war on terror held within U.S. borders was freed by a federal appeals court. He was freed only momentarily, but I’ll get to that in a second. The more important point is that the judiciary (even the military judiciary) is in revolt, protecting our civil liberties from the Bush Administration’s out-of-control war on terror tactics.
The ruling today pertains to Ali Saleh Kahlah al-Marri, a Qatari national who was studying computer science in Peoria, Illinois, until his December 2001 arrest for allegedly being an al Qaeda agent. The federal government chose not to put al-Marri through the court system reserved for all other incarcerated people, instead labeling him an enemy combatant and keeping him at a naval brig for South Carolina for four years. Much of that time was spent without charges or any sense of when his detention would end.
The court did not find Al-Marri innocent. Instead, it found that civilians arrested in this country — not abroad — and held domestically — not at Guantanamo — cannot be held indefinitely and eventually tried in a military tribunal system that parallels the regular court system but offers fewer rights and operates in secrecy. On a macro scale, the ruling says you can’t round people up in the United States, call them terrorism suspects, and then hold them in shady places while making shady claims about trying them in shady courts. It’s a victory for anyone who didn’t want to see a Children of Men scenario play out within our borders.
But because the court didn’t find al-Marri innocent, it is ordering him from the military custody he was previously in into a different state of the government’s choosing. He can be charged in the civilian court system, he can be deported, he can be held as a material witness, or he can be released. But he can’t be held in military detention any longer. Wrote the court:
“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… We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”