Too late to blink

The Bush administration's disastrous policy towards persons it refers to as detainees appears to be (at long last) coming home to roost.

I'd thought this would have happened earlier with the Padilla case. Padilla, you'll remember was the U.S. citizen imprisoned without having been convicted, tried, or even charged. The Padilla case was a perfect vehicle to deliver a final rebuke of the detainee policy, but (right before a filing deadline) the government blinked and gave Padilla a trial.

Well, as it happens, there was another detainee whose appeal has been winding its way up the ladder - a legal alien seized on U.S. soil and held for four years. His name is Ali al-Marri, and while his case isn't quite the same as Padilla's, his case came to the 4th U.S. Circuit and he won.

al-Marri's ultimate guilt or innocence I'd leave up to whatever judical body will get to make that ruling, but the principle the court stuck to (and one I heartily applaud) is that of Habeus Corpus. The Executive can lock you up, but there will be a day of reckoning for their decision - and they will have to prove that what they have done is justfied.

The Bush administration has been saying otherwise - that the Authorization for the Use of Force gave them sweeping new powers to detain people without trial.

Bupkis, says the court. He gets a trial.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

There's also a nice bit of judical snark (emphasis added):

Furthermore, the Government’s treatment of al-Marri suggests that, despite its litigation posture, it does not actually believe that the [Combatant Status Review Tribunal] process in the [Detainee Treatment Act] and [Military Commissions Act] applies to al-Marri. In the four years since the President ordered al-Marri detained as an enemy combatant, the Government has completed CSRTs for each of the more than five hundred detainees held at Guantanamo Bay. Yet it was not until November 13, 2006, the very day the Government filed its motion to dismiss the case at hand, that the Government even suggested that al-Marri might be given a CSRT. At that time the Government proffered a memorandum from Deputy Secretary of Defense Gordon England directing that al-Marri be provided a CSRT "upon dismissal" of this case. This memorandum is too little too late.

Ooo-rah. Now here's hoping the Supremes back this ruling up with some gusto.