The courts fight back

Here's an issue that won't go away. Can non-US citizens who are resident in the USA be declared enemy combatants and denied the usual access to courts that US citizens would normally have¹? The Military Commissions Act (MCA), passed in a pre-election rush last year, said Yes, although some of its spinners were confused about that point ².

But today an appeals court said No. Someone living in the US, even if not a long-time Green Card holder or citizen, has more habeas corpus rights than the Act allowed.

The unfortunate subject of this case is Ali al-Marri, a Qatari who had been living as a student in the US for 3 months in late 2001 but has been locked up in a Navy prison since 2003. This is an appeals court but the Supreme Court could take the case. That would help clarify for good or ill just what rights the millions of people living in the US with something less than full citizenship have.

UPDATE 5 DECEMBER 2008: The Supreme Court is taking the al-Marri case.

UPDATE 23 JANUARY 2009: Barack Obama orders an executive branch review of the al-Marri case.

FINAL UPDATE 26 FEBRUARY: The result of the above review is apparently a decision to send al-Marri into the civilian court system. While it gets him his day in a real court, it dodges the question of whether the Commander-in-Chief can detain US residents indefinitely, upon which the Supreme Court might have ruled.

¹ There's still the issue of whether a US citizen can be declared an enemy combatant. The MCA seems to rule this out, but the Bush Administration has dodged any actual test of it, by moving Jose Padilla into the regular legal system before a court ruling, and getting one dual Saudi-US citizen to revoke his US citizenship in return for release. More legal analysis of al-Marri's case here

² The subject of this link, Andy McCarthy, has returned to the topic in the light of the al-Marri case. His perspective is that of his latter interpretation of the MCA, that anyone short of a Green Card or US citizen can be denied habeas corpus -- and therefore he's outraged that the appeals court ruled otherwise for al-Marri.

Ironically, the court's verdict is closer to McCarthy's initial rebuttal of claims that the MCA might restrict habeas corpus, when he pointed out that habeas corpus can't be taken away from people who have lawfully weaved themselves into the fabric of society. His mistake was to take this as a synonym for "Green Card", because someone who arrives on a student visa, like al-Marri, could also weave himself into the fabric of society