Jacob Sullum

The Patriot Act, passed a month and a half after Al Qaeda's attacks on the World Trade Center and the Pentagon, gave the attorney general the authority to detain aliens suspected of terrorism for up to seven days before charging them or seeking their deportation. But according to the Bush administration, this provision was unnecessary.

By the administration's account, the president already had the authority to detain not just aliens but citizens, not just for a week but for life, based on his own determination that they qualify as "enemy combatants." Rejecting this theory, the U.S. Court of Appeals for the 4th Circuit has struck a blow for due process and the rule of law, both of which are threatened by President Bush's assertion of the king-like power to lock people up at his discretion and throw away the key.

The 4th Circuit's ruling deals with Ali al-Marri, a legal U.S. resident from Qatar who was attending graduate school in Peoria, Ill., when the FBI arrested him in December 2001. Initially held as a material witness in the 9/11 investigation, he was later charged with credit card fraud and lying to the FBI.

In June 2003, a month before al-Marri was scheduled to be tried on those charges, Bush issued an order that described him as an Al Qaeda operative and transferred him to military custody. Since then he has been imprisoned at the Navy brig in Charleston, S.C.

Bush says Congress approved this sort of detention in September 2001, when it authorized the use of military force against the "nations, organizations or persons" who "planned, authorized, committed or aided" the 9/11 attacks. He also argues that he does not need congressional permission, because he has the inherent power as commander in chief of the armed forces to hold enemy combatants in military custody until the cessation of hostilities to prevent them from returning to the battlefield.

In Bush's view, an enemy combatant is anyone he suspects of involvement with terrorism, the battlefield is the entire world and the cessation of hostilities occurs when terrorism has been decisively vanquished -- i.e., never. The upshot is that the president has the unilateral, unreviewable authority to grab legal residents and American citizens off the streets of the United States and imprison them indefinitely.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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