The Al-Marri ruling  (pdf) this week brings the “enemy combatant” controversy back into the news. I addressed the Al-Marri case in this article (pdf) for the Cato Supreme Court Review (see pp. 37–39). In the article, I set forth a legal framework for analyzing the competing claims of security and liberty. I think factors such as citizenship and place of capture matter. 

President Bush advances the sweeping claim that the entire world, including every inch of U.S. territory is a “battlefield.” He then argues that the “battlefield” is no place for police officers, search warrants, trials, and judges. There are no rights on the battlefield. Bush is the commander-in-chief and he’ll decide who needs to be killed or locked up. And his decisions are final. No “second-guessing” by the Congress or the judiciary.

Despite his sinking poll numbers, Bush’s dangerous legal claims are alive and well. This evening, Bush could have any American secretly arrested and put on a plane for incommunicado detention and interrogation at Guantanamo. This is what a federal appellate court ruled in the Padilla case. And just when it looked as if the Supreme Court was ready to overturn that case and declare Bush’s policy (at least with respect to citizens in the USA) illegal, the Bush administration suddenly moved Padilla from military custody to civilian custody where he is now on trial in Florida. Bush’s lawyers told the Supreme Court that there was no longer any need to hear the case–since Padilla was no longer in military custody. Unfortunately, the Supreme Court agreed. By declining to hear Padilla’s appeal, the lower court precedent approving Bush’s sweeping legal claim was left in place. If an American were to be sent to Guantanamo this evening, it would take several years of litigation before the Supreme Court would be ready to rule on the matter. It is thus no exaggeration to say that right now the liberty of every American rests upon the grace of the White House.

Al-Marri’s case is about non-citizens imprisoned in military brigs inside the United States. Al-Marri is a citizen of Qatar. He entered the U.S. one day before the 9/11 attacks and the government says he is a terrorist and his mission was to engage in follow-on attacks here in the U.S. He was initially arrested and charged with criminal offenses, but then he was declared an “enemy combatant” and was moved to a military brig. He has been imprisoned in a South Carolina military prison for four years while his attorneys challenged the legality of his imprisonment. This week a federal appeals court ruled that Al-Marri must be (1) deported; or (2) charged with a crime; or (3) released from custody. The U.S. military cannot continue to keep him locked up.

This outcome creates a weird situation in which an American can be held in military custody, but a legal immigrant cannot be. I don’t agree with everything in the Al-Marri ruling, but it does reject Bush’s most sweeping claims about his power. Excerpt: “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. … We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”

Mr. Bush’s lawyers say they plan to appeal the ruling.

For a complete report on the Bush administration’s constitutional record, read this.