Q: "Mommy, why are you dressed as President Bush if you don't like him?"
A: "Because he's the scariest person I can think of. . ."
Today the full Fourth Circuit Court of Appeals will hear the government's appeal of the case it lost regarding Ali Saleh Kahlah al-Marri. Why should we care since the earlier decision in his case has limited or nonexistent practical consequence? Because the facts of his case reflect the worst-case scenario with which the government always tries to scare us: an al-Qaeda terrorist blending in and living among us, lying in wait to unleash the next 9/11. . . Boo!
On June 11, the U.S. Court of Appeals for the Fourth Circuit issued its decision in the case of Ali Saleh Kahlah al-Marri. The Court not only rejected the Bush Administration's arguments, but suggested in its first paragraph that they went directly contrary to the Constitution, as interpreted through "two centuries of growth and struggle, peace and war...."
The three-judge panel was unanimous that the jurisdiction-stripping section of the Military Commissions Act of 2006 (MCA) did not apply to al-Marri. Therefore, the court could properly entertain his petition. In addition, the panel voted 2-1 in favor of al-Marri on the merits of his petition, holding that while the government is free to try al-Marri, it is not free to continue to detain him indefinitely without charge.
Today the full Fourt Circuit -- eleven of them -- will hear the case. Who cares? The earlier decision benefits only those who are both under the direction of an enemy nation and living legally in the U.S. -- a class of persons that, if the Department of Homeland Security is to be believed, does not exist.
The reason we should care is that it this question bears on the broader proposition that people can be held indefinitely in the United States as "enemy combatants," without ever being charged and with spotty access to counsel (the others who've enjoyed this dubious distinction were Jose Padilla and Yaser Esam Hamdi.)
Before his arrest, al-Marri, a Qatari national, was attending graduate school at Bradley University in Illinois. He was legally in the United States when he was detained. Originally, the government held him on a "material witness" warrant. Then it charged him with making false statements. Less than a month before his trial was scheduled to begin, however, the government dropped its charges against him and declared him an "enemy combatant." The question of who can be deemed an "enemy combatant" remains a troubled and troubling one.
It's too bad the government is appealing the decision (as I made the easy prediction that it would), by requesting today's en banc review in the Fourth Circuit. That's the trick. If the Fourth Circuit does not reverse, then I'm sure the government will petition the Supreme Court.
Luckily, the Supreme Court has ruled against the Administration in all enemy combatant cases. That's the treat.