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Tuesday, June 12, 2007

George II Thwarted (So Far) on Habeas Corpus

George II may not arrest a U.S. resident on U.S. soil -- citizen or not -- and hold him in a military brig without charge indefinitely. So says the Fourth U.S. Circuit Court of Appeals in an important 2-1 ruling yesterday. We can only hope it will be sustained on further appeal.

Contrary to the Bush administration's obnoxious autocratic position, Kahlah al-Marri (a married Bradley University student and father in the U.S. but a citizen of Qatar) has the right to file a habeas-corpus petition and the right to have any case against him handled by the civilian criminal justice system. This holds even if, as the administration charges, al-Marri is an al Qaeda "sleeper agent" who has volunteered for a "martyr mission" in the United States.

Money quote:
[T]he Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely. . . . 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 [habeas corpus] 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. . . . We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
The opinion his here (pdf).

If you're watching cable TV news, you may not know about this case. The channels are too busy covering Paris Hilton's detention. I await the filing of her habeas corpus petition.


Thomas Bell said...

And to think: In 2007, we only have the judicial branch to protect our freedom, and even that is iffy (e.g., Wickard, Arver, Kelo, et al)

Anonymous said...

The judicial branch, part of the same government as the legislative and executive branches, is as uninterested in protecting our "freedom" as the other two.

Freedom does not exist in society. There are only varying degrees of tyranny.

My advice -- cease using the words "we" and "our" and begin exercising your vocabulary with words like "I" and "my."

After all only you and I can reason. "We" cannot.

Anonymous said...

George II?

I thought the current occupant of the White House is the third George to hold the office. Would not George III be more accurate?

Sheldon Richman said...

Yes, but I am stressing the dynastic aspect. Thanks.