Curbing Misuse of the 'Enemy Combatant' Provision
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In their July 2 op-ed, "Impunity for al-Qaeda," David B. Rivkin Jr. and Lee A. Casey argued that the federal appeals court in Richmond should reconsider its decision of last month in the case concerning Ali Saleh Kahlah al-Marri. Contrary to what Mr. Rivkin and Mr. Casey suggested, it is the executive branch, not the courts, that has sought through misuse of the "enemy combatant" category to create legal vacuums, not only at Guantanamo Bay but also here in the United States.
If the president's extreme position had been upheld in the Marri case, any of the millions of noncitizens legally residing in the United States could have been detained indefinitely as "enemy combatants," simply on the president's say-so.
The appeals court pointed out quite correctly that Mr. Marri's four-year detention without trial was clearly contrary to the will of Congress, which in the USA Patriot Act authorized the emergency detention of suspected "alien terrorists" for up to seven days, not forever.
There is no indication whatsoever that Congress intended to expand the traditional laws of war beyond their usual application in battlefield situations against other nations to make it possible for the military to grab people in Peoria, Ill., and make them disappear into a legal black hole. And, as the U.S. Court of Appeals for the 4th Circuit explained, granting the president that kind of unchecked executive power "would have disastrous consequences for the Constitution."
JENNY S. MARTINEZ
Stanford, Calif.
The writer, an associate professor of law at Stanford University, filed a friend-of-the-court brief on behalf of Ali Saleh Kahlah al-Marri in the appeals court .
