Every terrorist tabby cat loves the mouse that brings his little mouse lawyer along, or as the cat calls it, "dinner and dessert."

This is the just insane. Would the courts prefer it if the combatants were killed trying to escape or something?

I'm not quite clear enough on a few things -- a little help, perhaps?

1.) What does one have to do to earn the title "enemy combatant"? I was under the impression it required actual combat over "intent to harm".

2.) This only applies to legal residents arrested and held in the United States. Since 9/11 there have been two such cases (Padilla and this guy). Is this that big of a ruling? Would it be too difficult to detain them outside of the US?

3.) What did the OSS do in such circumstances (it wasn't public, and I'm pretty sure it wasn't pretty) and is this sort of action not an option any more? If so, why not? Many of FDR's actions leading into WWII were most assuredly illegal.

Our Enemy, Islam, has the Perfect War Plan...a “Three Pronged War Plan” (at least 3 prongs):

1) Guerrilla Warfare with a serious understanding of Terrorism tactics tossed in (perhaps “main ingredient” would be a better choice than tossed in). They use what they have perfectly. Their own civilians even (see the recent war between Israel and Hezbollah, for one example)...so to speak.

2) Propaganda to perfection. They use our MSM...their media...the entire world’s media, and it has worked well for them...especially since their ‘Enemy’ (us...infidels...etc) has been divided so, here in America especially, but also in the Western World there is much division...so to speak of a perfect understanding of what ‘dividing’ is about during war.

3) The Enemy’s own Judicial System!!! As far as this humble Low and Ignorant Insane swamp hermit knows, this may be a first for conducting Warfare. Our Enemy, Islam, is still working to perfect this one, and are getting very close to perfection.

I notice that very few new enemy combatants are arriving at Gitmo. So we either detain them overseas or shoot them on site. Nice. But, you see, this is so much more humane to the liberals. Take out the trash, but for God's sake don't tell me what's in it.

I'd love to see an actual accounting of the number of humans directly and indirectly murdered by the policies and actions of the left. Let's start in Cambodia...

I'm with k2aggie above -- I don't understand, and would like to. I trust Bush, but I don't know if I want to accept this specific behavior (especially because if it's valid for Bush it'll be valid for a later president) -- but I also don't know what exactly was done here.

Was this guy grabbed out of his house at midnight, or was he captured from behind a barricade while he was attempting to shoot at random civilians? Is there any possibility of his treatment being applied to me?

K2aggie07, Wtanksleyjr:

You can find out a little about Ali Saleh Kahlah al-Marri here.

What does one have to do to earn the title "enemy combatant"? I was under the impression it required actual combat over "intent to harm".

No, we don't need to wait until a terrorist actually kills a bunch of people before we can capture him. In general, an unlawful enemy combatant is defined by the Military Commissions Act of 2006:

(1) UNLAWFUL ENEMY COMBATANT - (A) The term 'unlawful enemy combatant' means --

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

(Follow the link above, then click on the link that reads "Enrolled as Agreed to or Passed by Both House and Senate)[S.3930.ENR]; this will take you to the table of contents. From there, click on Definitions.)

K2aggie07 continues...

This only applies to legal residents arrested and held in the United States. Since 9/11 there have been two such cases (Padilla and this guy). Is this that big of a ruling? Would it be too difficult to detain them outside of the US?

Yes it is a big deal, because if the courts can inject themselves into the Commander in Chief's execution of his plenary war-fighting powers, then there is no limit to what the courts can do.

Imagine if Congress passed a law saying that in the future, the Congress itself could sign a simple pay-raise bill into law by a majority vote, even if the president vetoed it. It's no big deal, right? Just a small pay raise? But it is a big deal for the precedent it sets: relegating the Executive to being a mere adjunct of the Legislative.

That is the magnitude of the power the 4th Circuit is trying to seize for itself; because if they can undeclare al-Marri from being an unlawful enemy combatant, turning him into a normal civilian defendant instead and giving him all the same rights and protections that are available to people charged with residential burglary or passing bad checks... then that means the courts can countermand any military order the president gives.

The limitation that this applies only to lawful residents captured or held on U.S. soil is a self-imposed limitation; tomorrow, the court could declare a new standard.

The point is that the president, as Commander in Chief, has his own plenary power that does not depend upon the other branches agreeing to it. But this ruling negates that, saying that no, the Judiciary will second-guess every decision made by the Executive. (So who gets to second-guess the Judiciary?)

The Constitution divides up the powers of government; the power actually to prosecute war is firmly and absolutely lodged with the Executive branch by Article II, Section 2. But now a three-judge panel of the 4th Circus comes along and says no, they get to decide who America's military enemies are... not the president.

You don't see a problem with this?

In addition, this ruling quietly overturns part of the Military Commissions Act itself, because the act says that "any alien unlawful enemy combatant is subject to trial by military commission under this chapter," where "alien" is defined as "a person who is not a citizen of the United States."

But Ali al-Marri is not an American citizen; he is only a legal resident. Thus, the court yesterday threw out the provision of the MCA that allowed a trial by military commission for any unlawful enemy combatant who is not a citizen, saying we also cannot try lawful residents.

What did the OSS do in such circumstances (it wasn't public, and I'm pretty sure it wasn't pretty) and is this sort of action not an option any more?

No, we cannot simply capture and hang enemy combatants we find in the United States, as we did during World War II, because of the recent Hamdi decision, among other reasons; the Supreme Court held that even unlawful enemy combatants must get some sort of trial... which is the purpose of the MCA.

Dafydd

The Fourth Circuit is a good court. This was an odd panel, and I think the result was an aberration.

Normally, the dissenting judge leads the charge to get rehearing en banc, and then tries to get enough additional votes to turn his dissent, somewhat revised, into a majority opinion for the full en banc court. That can't happen here because the dissenting judge was, in effect, a "special guest star" — a district judge sitting "by designation" — and as such, he can't participate in the discussion over the vote for rehearing en banc or the re-argument.

Nevertheless, the case is of sufficient importance that it is guaranteed to get a close look by the other judges of the Fourth Circuit who weren't on the panel. I think the odds are high that the Fourth Circuit will grant re-hearing en banc, and upon doing so, that it will reach a different result.

You don't see a problem with this?
Didn't say that. I said I didn't know, and I'd like it to be cleared up. Perhaps I'm dense, but I'm not meaning to be.

Apparently this guy was funding (or had plans to fund) terrorists, falling under the "purposefully and materially supported hostilities" section. In that case, congress has given the president the power to declare him an unlawful combatant, and the President has done so -- so far, so good.

And then the judiciary comes along and kicks over the apple cart, saying, in effect, that the MCA is wrong and you can't do that.

This particular case aside, how is this different than any other example of the courts practicing judicial review of a law? Wouldn't it be just as correct to say that court found the "alien" provision in the MCA to be unconstitutional? Or would they have to specify that in their ruling?

PS Dafydd you know what would be great? A way to email questions so I can save posts for when I actually have opinions.

K2aggie07:

PS Dafydd you know what would be great? A way to email questions so I can save posts for when I actually have opinions.

I keep dithering back and forth over this issue, but I haven't decided yet. Naturally, we could have up to ten e-mail addresses through the host server... but do we want them?

(Technically, we already have them... and you can probably guess the addresses! But I literally have never even checked any of them, not even once; so anything sent there falls into a black hole.)

On the love hand, I suppose it's possible that people could send us hot news tips -- but I find that improbable. Who would send us tips? We're not a newspaper or even a news site.

On the hate hand, I already receive scores of e-mails each day... mostly Big Lizards comments and trackbacks, each and every one of which (except junked trackbacks) generates a separate e-mail for me to read.

If readers start sending me direct e-mail as well -- questions, comments, arguments, suggestions -- I would feel uncomfortable not answering them... so that means a potentially big batch of extra e-mails to which I must actually respond -- or else feel guilty.

(Of course, being inhuman, I don't actually feel "guilt" per se; but I would suffer the appearance of guilty remorse and the expectation of cutting my stomach, which are just as bad.)

What I've done instead is compensate by encouraging topic drift in the comments, as well as questions and unrelated thoughts.

I'll keep thinking about it, but I still lean against.

Dafydd

Correct me if I am wrong but wasn't this guy brought in from another country. If so he may be a legal resident but he was not aprehended here.

Davod:

Correct me if I am wrong but wasn't this guy brought in from another country?

Yes: Peoria, Illinois. Alas, although Californios know that Peoria is, in fact, a different planet, federal judges insist it be considered part of the United States... hands across the Great Lakes, and all that.

Dafydd

Yes it is a big deal, because if the courts can inject themselves into the Commander in Chief's execution of his plenary war-fighting powers, then there is no limit to what the courts can do.

Of course, the courts can do just that -- that's long since been decided (early in this nation's life). They can't (supposedly) micromanage a war, but they can critique policy. Why shouldn't they?

What I'm trying to find out isn't what the limits are on the courts; it's what the limits are on the executive. The president isn't unlimited in most other areas; and this area, by all the logic you've given so far, would allow him to arrest anyone, give no cause whatsoever, and detain forever or execute, with no consequences to him.

I *definitely* see that the executive MUST have a free hand in prosecuting a war; that's why the executive, unlike the other branches of gov't, comes down to one person. I definitely see that we're in a war, and I see who's on our side and who's not. The trick is to strike a balance between fighting the war NOW, and being able to fight it when the next president takes office. Continuity is important too, and since we don't have dictators-for-life, that requires the rule of Law.

Check out this link for more details on this line of thought.

Anyhow, I can see that the law requires that the person to be detained be a bad person, but I don't see how that badness is to be judged.

-Billy

Oh, here's a very good article (well, a blog post) on this topic from an actual lawyer. He agrees with you, and I find his post clarifying and convincing. Yes, there is a continuum between warfighting and justice-system (my words, not his); this case does seem to be FAR closer to warfighting than to something appropriate for the justice system.

This is what I wanted to believe anyhow, so I'm good now.

(BTW, I don't find your logic about "the president HAS to have unrestricted authority" convincing at _all_. If he had unrestricted authority there would be no balance of powers. Your example about Congress passing a law allowing for raises without possibility of veto is a precise example of this: congress' power is _restricted_.)

-Billy

Wtanksleyjr:

What I'm trying to find out isn't what the limits are on the courts; it's what the limits are on the executive. The president isn't unlimited in most other areas; and this area, by all the logic you've given so far, would allow him to arrest anyone, give no cause whatsoever, and detain forever or execute, with no consequences to him.

Yes, that is exactly what I'm saying... except for your last line. The president naturally incurs consequences for all of his actions:

• He must run for reelection;
• He can be impeached and removed by Congress;
• Under the Hamdi decision, to which I don't particularly object, the basic process that the president sets up is subject to Court review; but that process need not be a normal civilian criminal trial -- which is what the 4th just ruled al-Marri is entitled to receive.

But I also don't believe that the courts should have the opportunity to review (second guess) every decision made about every individual enemy combatant, rehearing the tribunal cases itself and substituting its own judgment for that of the tribunal.

The Supreme Court can pass on the process; but the only grounds for appeal should be "the tribunal did not follow the rules Congress and the president set up and which the Court approved" -- not "the military judge, acting within the proper process, made the wrong decision on the evidence."

BTW, I don't find your logic about "the president HAS to have unrestricted authority" convincing...

Although you put that in quotation marks, I of course never said any such thing. In future, if you're going to paraphrase, rather than quote, please indicate that's what you're doing; otherwise people get confused!

Dafydd

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