On July 15, the Court of Appeals for the Fourth Circuit ruled by 5 votes to 4 in the case of Al-Marri v. Pucciarelli that the President can arrest U.S. citizens and legal residents inside the United States and imprison them indefinitely, without charge or trial, based solely on his assertion that they are “enemy combatants.”
In the words of Judge William B. Traxler, whose swing vote confirmed the court’s otherwise divided ruling, “the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions … The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities.”
As was pointed out by Judge Diana Gribbon Motz, who was steadfastly opposed to the majority verdict (and whose opinion was endorsed by Judges M. Blane Michael, Robert B. King and Roger L. Gregory), “the duration of the relevant hostilities” is a disturbingly open-ended prospect. After citing the 2007 State of the Union Address, in which the President claimed that ‘[t]he war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,'” Judge Motz noted, “Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a ‘war on terror’ has no bounds.”
To recap briefly, al-Marri, a Qatari national who had studied in Peoria, Illinois in 1991, returned to the United States in September 2001, with his U.S. residency in order, to pursue post-graduate studies, bringing his family — his wife and five children — with him. Three months later he was arrested and charged with fraud and making false statements to the FBI, but in June 2003, a month before he was due to stand trial for these charges in a federal court, the prosecution dropped the charges and informed the court that he was to be held as an “enemy combatant” instead.
He was then moved to a naval brig in Charleston, South Carolina, where he has now been held for five years and one month in complete isolation in a blacked-out cell in an otherwise unoccupied cell block. For the first 14 months of this imprisonment, when he received no visitors from outside the U.S. military or the security agencies, he was subjected to sleep deprivation and extreme temperature manipulation, frequently deprived of food and water, and interrogated repeatedly.