An attack on King George's "grandiose claim"

By Diane Silver

The New York Times has a nice editorial today about why the Fourth Circuit Court of Appeals ruling is so important as an attack on "the whims of one president with an obvious disdain for the balance of powers."

The editorial does not tackle the issue of whether the ruling will stand, but instead talks about why the legal reasoning is a strong attack on the imperial presidency.

More on the end of the imperial presidency

By Diane Silver

[updated 3:58 p.m.]

Marty Lederman at Balkinization argues that the the Bushies actions against the central figure in today's case -- al-Marri -- were motivated by their wish to torture him. Andrew Sullivan is not amused, and neither am I.

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More details, links to the decisions are located at the American Constitution Society blog. Good stuff here.

Great decision today.

Is the imperial presidency ending? Could be.

By Diane Silver

[updated 1:25 p.m.]

The New York Times and Washington Post have the details on today's appeals court ruling that rejects the Bushies' claims that they can do anything they darn well please with anyone, that is, as long as they claim said individual is an enemy combatant. The Post reports:

The opinion is a major blow to the Bush administration's assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States. The government is expected to appeal the 2-1 decision handed down by a three-judge panel of the conservative U.S. Court of Appeals for the Fourth Circuit, which is in Richmond, Va.

Although this decision is from a divided court, it also comes from a conservative panel. Very interesting.

The New York Times quotes one judge who does not sound at all pleased with the Bushies.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, Judge Diana Gribbon Motz wrote, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”

“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”

I can already hear the screams, though, claiming that this is a horrible decision because Bush and company say the defendant is an Al Qaeda member. Well, perhaps he is and perhaps he isn't. What counts, though, is that in the United States you can't just point to someone and scream "bad guy," and then lock that person away forever.

If there are no rules, if there is no need for evidence, then anyone can be called an enemy combatant and locked away. That "anyone" could be folks like you or me who post unpopular political opinions on blogs. That could be my 80-year-old mother who might go to a peace march. Heck, I suppose they could prosecute my late, lamented cat Ernestine for, just well, being wrong.

I do not want a terrorist out on our streets anymore than anyone else does. However, this ruling gives the Bushies ample ways to keep this guy locked up if there is reason to do so.

It is. Way. Past. Time. To end this imperial presidency.

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[earlier post]

Yet another sign that civil liberties are becoming important in America again. The New York Times just sent an email alert reporting:

Appeals Court Orders 'Enemy Combatant' Free

Court rules that the Bush administration cannot detain an immigrant as an "enemy combatant" without charging him.

I can't find anything else online about this, even at the Times, but it sounds good indeed. More details when I get them.