Leftist Moonbats? Is that code for “Jacques is braindead so just hurl sticks”? The Bush doctrine…if you don’t have an argument just yell louder.

Lookie here Jacques…ohhhh why not Jack Jacques? It is more American…real grip the rifle and pry it out of your cold chattering teeth perhaps…doesn’t sound so…dare I say…sissified.

Anyway Jack/Jacques…the consitution is why we do things in this country…assuming you know nothing of it…it is the central glue to entire society. As it is the most important document we collectively adhere to and cherish, it isn’t for sale, loan, or change unless there are a lot of people who want it so and vote that way to amend it…which has not been the case.

habeas corpus is the key to the rights preserved in that document for without habeas, there would be no access to a court of law to preserve or fight for an alledged abridgement of these rights…Clear so far? Follow closely.

For instance free speech means nothing unless, if denied it, you can go to court to address the denial…and a judge takes over things and arguments are made and a decision is made that is binding on all parties…Still following me? I know this is tough but its kinda basic so it has to be so clear that even a pinhead can get the idea.

So we have this fella in custody ready to go to trial on some serious shit. In the middle of the night those charges are dropped and some soldiers show up and take him away. (military acting as law enforcement perhaps???)… now he doesn’t get a trial. He can’t even get to a court. He really has trouble seeing an attorney. 4 years pass. .. finally someone tells The Decider in Chief…hey, President WooWoo, you can’t do this. We are a nation of laws under the constitution.

Now, tell me where I lost you?

Yes. Leftist moonbats.

What of the military’s role in all this? I would think there is a procedural issue in the arrest at the very least if the military was involved. If not, how did he get from civilian law enforcement to a military detention…was this done in the dead of night?

I would think that every citizen should be afraid – be very afraid – that military detention can be ordered by one man and that civilian law enforcement just hands someone over without a squabble.

Is anyone discussing this?

The definition of “illegal enemy combatant” in the MCA includes both citizens and noncitizens. The Court in Hamdi found “no bar to [the United States’] holding one of its own citizens as an enemy combatant,” but the majority required that detained citizens receive the opportunity to challenge an enemy combatant designation. To respect the narrow Hamdi decision, the MCA limits military commissions’ jurisdiction to aliens/non-residents only. The legal resident distinction was a bit blurry, but as I mention below, was of little consequence. The Bush administration has not seriously attempted to enforce the MCA against resident aliens (a thoroughly logical decision given Hamdi and Hamdan).

The MCA does not afford non-citizen and non-resident detainees the same right to challenge adjudications as citizens or legal residents. Section 950j in the Act strips courts of jurisdiction over any cause of action, including habeas corpus petitions, related “to the prosecution, trial, or judgment of a military commission . . . including challenges to the lawfulness of procedures of military commissions.” None of it applies to citizens or legal resident aliens! While the Bush administration has always lobbied for a broad interpretation that would cover both aliens and citizens (as they should, regardless of your personal feelings on the position), they had little chance or expectation of actually winning this case.

Despite the “harsh rebuke” label instantly applied by the MSM, this ruling is pretty much a straight reading of the MCA. Congress learned from the Court’s decision in Hamdi. More importantly it affects all of 2 detainees: Jose Padilla, who was already rendered to civilian custody under civilian charges, and Ali al-Marri, the appellant in this case. This ruling reaches none of the merits of the MCA itself, and has significance only because it represents another potential opportunity for the Supreme Court to rule on the MCA. I’ve written extensively on the Military Commissions Act, so I’ll spare the full reasoning for you here. Head over to SSRN (at the URL included in this post) or pick up a copy of Issue 4 of Indiana Law Journal Volume 82 if you want to know more about what I think on the MCA generally.

The DOJ plans to make a motion for rehearing and rehearing en banc in the case, and whoever loses will undoubtedly file a cert petition with the Supreme Court. We’ll see where this one goes (I agree with Andrew above that Kennedy is the key), but for now, don’t believe the hype: this is a generally meaningless ruling for both sides. Whatever your feelings on it, the MCA is still good law and this decision changes nothing.

-Doug Hass

But, there are fewer options for the government than the Court’s ruling would suggest. For the charges upon which Al-Marri was originally held, there are serious speedy trial, statute of limitations and time served issues. Should Al-Marri face new charges, there are issues of the taint the evidence against him may have of coercion used in obtaining evidence. Showing that Al-Marri is held in good faith as a material witness is difficult at this point, as he has been out of action for four years making his knowledge stale and tainted by prior coersion. And, Patriot Act detention is indeed for a limited period of time (does it apply at all when so much time has already been spent in executive detention?).

Deportation of Al-Marri to Qatar is probably the most attractive option for the Government if it loses in the U.S. Supreme Court. Indeed, giving the cooperativeness of the Qatar government, it might even amount to certain imprisonment upon arrival under Qatar’s monarchical legal system.

Suppose the government wins on the grounds set forth by the dissent in the 4th Circuit. Then you have a finding on the books that the MCA’s jurisdictional provisions are flat out unconstitutional. Surely, the government would appeal that finding a well. And, if the government and Al-Marri were both requesting review at the same time for different reasons, could SCOTUS resist taking this case as it resisted taking Boumedine? In any case, three of the four liberal judges would certainly vote for cert (based on Boumedine), and Justice Stevens, who kept his powder dry in Boumedine, probably out of doubts about how Kennedy would rule, would likely see the Al-Marri case as his best shot at making good law in this area because the facts are more favorable than in the other cases.

Unless the government can get, in en banc review, a four square favorable ruling on jurisdiction, it has to worry about what happens next.

The Al-Marri 4th Circuit ruling on both jurisdiction and the merits is the equivocating, distinction drawing kind of opinion one could easily imagine Kennedy feeling sympathy with. Its fact specific nature leaves open distinguishing opinions in the future on either jurisdictional or merits grounds. It is under the currently known facts a “one off” ruling with the least cost to war on terrorism policies and the biggest return for civil liberties. A ruling would provide the administration with a roadmap for future cases by engaging in prompt CSRT review and receiving great deferrenc from courts from mere declarations of administration officials that have to say specified things and are effectively unreviewable as to veracity.