Court Takes Second Look at Enemy Combatant Case

NY Times ^ | November 1, 2007 | ADAM LIPTAK

[Former Military Chick]

RICHMOND, Va., Oct. 31 — It seemed like a foregone conclusion that the full United States Court of Appeals for the Fourth Circuit would be receptive to the Bush administration’s contention that it has the authority to detain people it calls enemy combatants.

The court’s conservative reputation is well known, and in August it decided to rehear the case in which a three-judge appeals panel rejected aspects of the administration’s position.

But, based on the pointed, practical and frequently passionate questioning here on Wednesday in the case of Ali al-Marri, the judges of the Fourth Circuit are divided and troubled, and it was not clear which way the majority was leaning.

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In 2004, the Supreme Court ruled that Congress had granted the president power to detain at least those enemy combatants captured on the battlefield in Afghanistan, even if they are American citizens, for the duration of hostilities there. Based on that decision, the Fourth Circuit in 2005 upheld the detention of Jose Padilla, an American arrested at a Chicago airport. Although Mr. Padilla was said to have ties to Al Qaeda, the Fourth Circuit decision largely turned on his own activities on the battlefield in Afghanistan.

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The appeals panel in Mr. Marri’s case ruled, 2 to 1, in June that the powers Congress granted to the president in September 2001 extended only to the detention of people who had taken up arms against the United States as part of the armed forces of an enemy nation. That would include people who fought alongside the Taliban but not most members of Al Qaeda.

[Former Military Chick]

The central question before the nine judges hearing the case on Wednesday was whether the executive branch may capture people in the United States and subject them to indefinite military detention without charges.

No. They SHOULD be shot on sight as spies operating behind the lines out of uniform. But since there’s no way they’d go for that, indefinite POW status should suffice.

[DoughtyOne]

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