No to Indefinite Detention

It may a little soon to start celebrating the return of the rule of law, but there are encouraging signs from the courts.

A federal appeals court today ruled that the U.S. government cannot indefinitely imprison a U.S. resident on suspicion alone, and ordered the military to either charge Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

The opinion is a major blow to the Bush administration's assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States. The government is expected to appeal the 2-1 decision handed down by a three-judge panel of the conservative U.S. Court of Appeals for the Fourth Circuit, which is in Richmond, Va.

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"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found. "Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants.' "

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"This is an important victory for the rights of all individuals in this country to be free from unchecked executive detention power," said Jonathan Hafetz, al-Marri's lawyer at the Brennan Center for Justice at New York University law school. "If the government seeks to detain someone, it has the burden of producing its evidence in a court of law."