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Opinion

Editorial

Indefinite Detention

Published: November 24, 2008

For more than five years, the Bush administration has been holding Ali al-Marri, a legal resident of the United States, in near isolation under President Bush’s reprehensible enemy combatant doctrine. The Supreme Court is to meet on Tuesday to decide whether to review the case, and it should. The justices need to make clear that a president cannot trample on individual rights by imprisoning people indefinitely simply by asserting that they are tied to terrorism.

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Mr. Marri was arrested in Peoria, Ill., in December 2001 on criminal charges. In 2003, while his criminal case was pending, Mr. Bush designated him an enemy combatant, and he was moved to a Navy brig near Charleston, S.C. For 16 months, Mr. Marri was held incommunicado. During his detention, he reportedly has been subjected to treatment that borders on, or actually is, torture.

A three-judge panel of the United States Court of Appeals for the Fourth Circuit in Richmond, Va., ruled last year that the president lacked the authority to hold Mr. Marri in this lawless manner. In July of this year, however, that full federal appeals court vacated that decision and ruled 5 to 4 that the president had the legal authority to hold Mr. Marri as an enemy combatant. That decision, which produced an array of conflicting opinions, created considerable uncertainty about the legal basis for Mr. Marri’s detention.

The Supreme Court should accept Mr. Marri’s case both to clear up the confusion and to right a serious miscarriage of justice. There is no authority, in the Constitution or in any law passed by Congress, for a president to seize and detain indefinitely individuals in the United States without charges. If the government wants to imprison such suspects, it should bring regular criminal charges against them in the civilian system.

The stakes in this case go well beyond Mr. Marri. The federal appeals court made clear that its ruling upholding the president’s power to detain enemy combatants applies equally to American citizens. If the ruling stands, presidents would be able to throw out due process, habeas corpus and other basic constitutional and statutory rights for anyone they declared to have terrorist ties. That is an intolerable reading of the law — and one that the Supreme Court should quickly reverse.