Letters to the Editor
Greenlabormike
Published Letters: 16
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Inherent Constitutional Authority
[Read the article: Al-Marri and the power to imprison U.S. citizens without charges]
[Read more letters about this article: Here]In my desperate attempt to find some silver lining in the decision, I found this passage relating to the Bush Administration's claim that it has "inherent constitutional authority" to detain civilians as enemy combatants, irrespective of the AUMF:
"According to the Government, the President’s 'war-making powers' afford him 'inherent' authority to subject persons legally residing in this country and protected by our Constitution to military arrest and detention, without the benefit of any criminal process, if the President believes these individuals have 'engaged in conduct in preparation for acts of international terrorism.' See Rapp Declaration. Given that the Government has now acknowledged that aliens lawfully residing in the United States have the same due process rights as United States citizens, this is a breathtaking claim — and one that no member of the court embraces." p.55, first paragraph.
Given the ultimate outcome, this is a small consolation, but I think it gives hope that this ultimate power of tyranny has not been embraced by any federal court - yet.
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@ LiberalArtist
[Read the article: Al-Marri and the power to imprison U.S. citizens without charges]
[Read more letters about this article: Here]Here's the text of the operative language of the AUMF (I cut the pre-ambulatory "Whereas-es":
Be it Resolved that the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements.--
(1) Specific statutory authorization.-- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) Applicability of other requirements.-- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
As you can see, it's pretty straightforward, but rather chilling in its broad language. According to the Fourth Circuit, if the President "determines" that you are aiding or abetting Al-Qaeda, then he can put you in military prison "until hostilities cease," which at the current rate, is forever.
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@kimocrossman
[Read the article: Al-Marri and the power to imprison U.S. citizens without charges]
[Read more letters about this article: Here]kimocrossman said:
"How can Pres declare US Citizens as US Enemy Combatants? - he does not have Domestic authorities under AUMF Limited War on foreign 9/11 terrorists only."
Well, you can read the relevant text yourself:
"Be it Resolved that the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
There is no language limiting where the President can act, geographically speaking. If a "person" determined by the President to have aided the terrorist attacks is found to be in the US, nothing in the AUMF prohibits him from detaining that person, even a US citizen.
Having read the decision (albeit not with this particular issue in mind) I don't recall that there was any discussion of the legislative history of the AUMF regarding Daschle's claim that Bush sought to add "in the United States and". I'm not sure it would have made any difference to the Fourth Circuit in the al-Marri case. The actual language suggests that it would have been superfluous to the issue. It's more likely that Bush intended to use that language to justify wiretapping and other domestic surveillance activities inside the US in contravention of FISA.
The scary thought is that Bush/Cheney had something even more nefarious in mind by proposing that language. Sad to say, there is probably no level of malign intent one can ascribe to the Bush Administration that exaggerates what Cheney, Addington, Bush, and others actually intended.
Nevertheless, the Fourth Circuit interpreted the AUMF to allow military detention of civilians, and it's up to the Supreme Court to rule otherwise. Not an inspiring thought.