Tuesday, June 12, 2007

The Fourth Circuit rewinds to 9-10-01

Andy McCarthy rips a decision by the Fourth Circuit, al-Marri v. Wright, indicating that any person who arrives legally in the United States cannot be declared an unlawful enemy combatant by the President and instead is entitled to all protections of the United States criminal justice system. McCarthy describes the holding thus:

"Although it did not conclusively rule on the issue (finding a technical path around it), Judges Motz and Gregory transparently indicated their inclination for finding that any alien who is lawfully present inside the United States is entitled to all the rights and privileges of the Constitution — just as if he were an American citizen."

The decision is merely a panel decision, which means that the Government can seek rehearing en banc (by the full Fourth Circuit). In addition, the panel composition indicates that al-Marri (a terrorist sleeper agent designated as an enemy combatant by the President) hit the jackpot for sympathetic jurists. The author of the opinion is Diana Gibbon Motz, a Clinton appointee. Joining her was Roger Gregory, a recess appointee by President Clinton whom President Bush nominated for a full appointment in 2001 in a politically inane attempt to mollify Democrats opposing his judicial nominees in the wake of the 2000 election.

Hopefully the panel decision will be reviewed by the full court -- the likelihood of the decision surviving en banc review is minimal.

(Cartoon courtesy C&F)

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