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Bush’s Tyranny Thwarted — For Now

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The news media seemed too preoccupied with Paris Hilton’s detention to notice, but a U.S. appeals court last week struck a major blow for liberty. A three-judge panel of the U.S. Fourth Circuit Court of Appeals ruled that the Bush administration may not declare a U.S. resident, whether a citizen or not, an “enemy combatant,” throw him in a military prison, and hold him without charge indefinitely — all without judicial review. Try him in the civilian courts or let him go, the judges said.

This double affirmation of habeas corpus and defendants’ rights is a stunning setback for President Bush’s attempt to assert autocratic powers under cover of his “war on terror.”

The government alleges that Ali Saleh Kahlah al-Marri, a married student at Bradley University in Peoria, Ill., and a citizen of Qatar (a country with which the administration is not at war), is an al-Qaeda “sleeper agent” who volunteered for a “martyr mission” in the United States. He was initially charged with criminal possession of credit-card numbers and making false statements to the FBI and on bank forms. But when he asked the court to suppress evidence on grounds that he had been tortured, the administration moved to dismiss the charges, declared him an “enemy combatant,” and put him a naval brig.

“Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri,” Judge Diana Gribbon Motz wrote in the 2-1 majority opinion. “If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.”

The decision is important because the Military Commissions Act, passed last year, purported to abolish habeas corpus for “aliens.” The court said, however, that this provision applies not to civilians living in the United States, but only to detainees at Guantanamo Bay, Cuba, who were apprehended in Afghanistan and other foreign locations. Thus, unfortunately, the status of the mere suspects at Guantanamo was left unchanged. But the ruling is important nonetheless.

“Congress,” the court said, “sought … to preserve the rights of aliens like al-Marri, lawfully residing within the country with substantial, voluntary connections to the United States, for whom Congress recognized that the Constitution protected the writ of habeas corpus.” The administration “does not assert that al-Marri: (1) is a citizen, or affiliate of the armed forces, of any nation at war with the United States; (2) was seized on or near a battlefield on which the armed forces of the United States or its allies were engaged in combat; (3) was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or (4) directly participated in any hostilities against United States or allied armed forces.”

Thus al-Marri can’t be an enemy combatant, and the Bush administration has no constitutional or statutory power to declare him one. That is no small matter.

As the court stated, “For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely…. 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.”

The importance of the centuries-old, hard-won principle of habeas corpus as a bulwark against tyranny cannot be exaggerated — for what good is a bill of rights if those whom the government imprisons may not publicly contest their detention? Isn’t the absence of habeas corpus a defining characteristic of despotism?

The Bush administration will ask the full appeals court to hear the case, and whatever happens there, it will most likely go to the U.S. Supreme Court, where anything is possible. We can only hope the appeal will fail.

Some find it tempting to relax the traditional protections of the accused in “exceptional” cases. But it’s worth reminding ourselves that preventing tyranny requires us to resist that temptation — especially in such cases.

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    Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.