'Disastrous Consequences for the Constitution'

President Bush's profoundly un-American notion that he can arrest and indefinitely hold people without trial if he simply designates them "enemy combatants" ran afoul of the judicial branch yesterday.

Carol D. Leonnig writes in The Washington Post: "A federal appeals court ruled yesterday that President Bush cannot indefinitely imprison a U.S. resident on suspicion alone, ordering the government either to charge Qatari national Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

"The opinion is a blow to the Bush administration's assertion that the president has exceptionally broad powers to combat terrorism, including the authority to detain without charges foreign citizens living legally in the United States. . . .

"The appeals panel ruled that Bush had overreached his authority and that the Constitution protects U.S. citizens and legal residents such as Marri from unchecked military power. . . .

"'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 panel found. . . .

"The judges also doubted the legality of classifying someone as an enemy combatant who was not caught on the battlefield or was not carrying arms.

"Civil libertarians who championed Marri's case had warned that if the administration prevailed in its argument, the military could next round up U.S. citizens and jail them without trial. The court appeared to agree.

"'To sanction such presidential authority to order the military to seize and indefinitely detain civilians . . . would have disastrous consequences for the constitution -- and the country,' U.S. Circuit Judge Diana Gribbon Motz wrote for the majority."

Adam Liptak writes in the New York Times: "The ruling was a stinging rejection of one of the Bush administration's central assertions about the scope of executive authority to combat terrorism. . . .

"'We refuse to recognize a claim to power,' Judge Motz added, 'that would so alter the constitutional foundations of our republic.'"

Marri was already in custody on criminal charges when he was transferred to a military brig. Writes Liptak: "Judge Motz suggested that the government's purpose in moving Mr. Marri to military custody was one the Supreme Court held improper in a 2004 decision, Hamdi v. Rumsfeld, that of subjecting him to harsh interrogation.

"For his first 16 months in the brig, Mr. Marri was allowed no contact with his family or lawyers. He was, a lawsuit filed on his behalf in 2005 said, denied basic necessities and subjected to extreme sensory deprivation. Interrogators threatened to send him to Egypt or Saudi Arabia, the lawsuit said, 'where, they told him, he would be tortured and sodomized and where his wife would be raped in front of him.'"