Habeas Corpus Edges Bush Regime, 2-1


It was a close call, but on a 2-1 decision June 11 by a panel of the 4th Circuit Court of Appeals preserved the Constitution — at least for now — by saying that even “criminal civilians” can’t be held indefinitely in military detention. In other words, the basic habeas corpus right has survived — for the Bush regime to fight against another day.

Read the brilliant opinion in al-Marri v. Wright penned by Judge Diana Gribbon Motz, and check out the dissent, which is tacked on to the same document.

The 4th Circuit, based in Richmond, Virginia, isn’t exactly the most liberal appellate court. Far from it, in fact. But Motz’s opinion speaks loud and clear, at least (as I said yesterday) for now:

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 judge wound up agreeing with lawyer Jonathan Hafetz of NYU’s Brennan Center for Justice, which tackles lots of fascinating constitutional issues. Check this Brennan Center page for background of the case. And just in case you’ve forgotten that habeas is so important that it’s actually written into the Constitution, see Hafetz’s Ten Things You Should Know About Habeas Corpus. Speaking of yesterday’s decision, Hafetz noted:

The ruling puts the United States where it belongs: in full support of fundamental habeas corpus rights even in times of perceived emergency. The Court soundly and rightly rejected the Administration’s attempt to treat the globe as a battlefield that is exempt from rule of law. The decision protects legal residents and citizens from secret detention.

Just for good measure, here’s another morsel from Motz:

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.

The case is a flash point for the conflict between Dick Cheney‘s — I mean, the president’s — power and the rights guaranteed by the Constitution.

Almost as interesting (and heartening) as Motz’s opinion was the amicus brief filed last November in the case by a gaggle of former Justice Department officials (including Janet Reno). As the excellent Jurist site reported at the time, those people argued that

the existing criminal justice system is more than up to the task of prosecuting and bringing to justice those who plan or attempt terrorist acts within the United States — without sacrificing any of the rights and protections that have been the hallmarks of the American legal system for more than 200 years. The federal government is eminently capable of both protecting our nation’s security and safeguarding our proud traditions of civil liberties. We would do well to remember Benjamin Franklin’s admonition that “[t]hose who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

Yeah, and don’t you forget it.