Rejected
by Dover Bitch

I was travelling last week and I’m still catching up on all the news I missed. Today, I read the Fourth Circuit’s al-Marri opinion and is it a doozy (PDF).

If John Yoo and David Addington weren’t done emptying out the liquor cabinet by p. 71, the conservative court’s smackdown of the unitary executive theory here was probably enough alone to send them into a slurred-speech babble (emphasis mine):

In light of al-Marri’s due process rights under our Constitution and Congress’s express prohibition in the Patriot Act on the indefinite detention of those civilians arrested as “terrorist aliens” within this country, we can only conclude that in the case at hand, the President claims power that far exceeds that granted him by the Constitution. 17

We do not question the President’s war-time authority over enemy combatants; but absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. See Toth, 350 U.S. at 14 (“[A]ssertion of military authority over civilians cannot rest on the President’s power as commander-in-chief, or on any theory of martial law.”). The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.”

A “well-established purpose of the Founders” was “to keep the military strictly within its proper sphere, subordinate to civil authority.”

Marty Lederman had much more last week on the decision. TalkLeft had a series of posts on the case as well.

After the 2006 elections, the concern-troll Republicans warned the new majority they better not “overreach.” Certainly, nobody will accuse them of doing that with a straight face.

But when future generations look back at the hubris and avarice of the Bush administration, the word “overreach” might be among the most appropriate. An overreaching view of authority. Overreaching in foreign policy. Overreaching in privatization. Overreaching in trying to control ideas and facts. Overreaching in expecting the military to fix everything.

Great news from the Fourth Circuit and incredible to see how roundly rejected the law-breaking of this president has been. After watching Congress abdicate their obligations for so long, the hearings these past few months have been nothing short of flabbergasting. Learning that the leaders of the Justice Department were, at one point, on the verge of resigning, and now seeing conservative courts saying “enough…” It makes me think this might be America, after all.

While we’re on the subject of looking at Bush’s place in history, I cannot wait to read Glenn Greenwald’s new book, A Tragic Legacy, due to be released June 26.