So far the courts have been reluctant to endorse this vision of presidential power, and the Bush administration has been reluctant to test it. In 2004 the Supreme Court agreed that a U.S. citizen captured in Afghanistan while allegedly fighting alongside the Taliban, Yaser Esam Hamdi, could be held in military custody, but only if the government gave him a fair opportunity to challenge its claims. Rather than do so, the Bush administration deported Hamdi to Saudi Arabia.
Two years ago the 4th Circuit itself upheld the military detention of another U.S. citizen, Jose Padilla, an alleged Al Qaeda operative who was arrested in Chicago but reportedly served as a guard at a Taliban outpost in Afghanistan. Rather than risk having that decision overturned by the Supreme Court, the Bush administration transferred Padilla back to civilian custody, and he is now on trial for aiding terrorism.
In deciding that al-Marri can likewise be tried in a criminal court but cannot legally be kept in military detention, the 4th Circuit distinguished his case from those of Hamdi and Padilla, noting that he has not been accused of taking up arms with the Taliban. "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," the court ruled, adding that such a power "would effectively undermine all of the freedoms guaranteed by the Constitution."
With the Bush administration winding down and the strong possibility of a Democrat in the White House come January 2009, perhaps Republicans will begin to see the wisdom of this warning.