No more guarantees -- Mark Buchanan

"For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution...,"

So begins the judgement handed down Monday by Judge Diana Gribbon Motz of the Fourth Circuit Court of Appeals in the case of Ali Saleh Kahlah Al-Marri. Motz's opinion is worth reading, as it illustrates in a most disturbing way just how far our norms of what is acceptable have been twisted out of shape over the past six years. Should the President have the right to detain and imprison any non-citizen for as long as he likes? And should he be able to do so without providing any evidence? According to the current administration, yes. And the law, as it has recently been rewritten, comes frighteningly close to backing them up.

What is perhaps most disturbing about the opinion is that it seems – to my admittedly very non-expert legal mind – to rest on what is almost a technicality. Indeed, the court had to engage in some tricky reasoning just to conclude that it had jurisdiction to hear the case in the first place. The Military Commissions Act (MCA), a statute passed by congress in October 2006, says that “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

By an order of President Bush in 2003, Al-Marri was “determined by the United States” to be an enemy combatant, and according to the administration, that's the end of the argument; the court therefore has no jurisdiction. The court argues, however, that the government never took the required steps to ensure that Al-Marri was “properly detained” as an enemy combatant, and so the MCA did not preclude it from hearing the case. Had the MCA not contained the words “to have been properly detained,” Al-Marri would have no recourse – nor would any other non-citizen detained and imprisoned for any reason whatsoever.

The point isn't, of course, that Al-Marri is innocent. On that matter, we simply have no idea, as the government refuses to present any evidence. If they do have evidence, then they have options. "Al-Marri can be returned to civilian prosecutors,” the opinion continues, “tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely."

At least for now. But we're hanging on by a thread that is worryingly thin.