News Release

Can the President Detain Anyone Indefinitely?


Ali Al-Marri, who was living in Peoria, Illinois, with his wife and children, was awaiting trial in 2003. A month before his trial, he was deemed an ‘enemy combatant’ by the president. He has been held in solitary confinement ever since. On Tuesday, the Fourth Circuit ruled that the president has the authority to detain anyone deemed an ‘enemy combatant’ indefinitely. (See Glenn Greenwald, “Al-Marri and the power to imprison U.S. citizens without charges.”)

President of the Center for Constitutional Rights, Ratner said today: “The core of the Bush administration’s excesses and illegalities in the so-called ‘Global War on Terror’ is the authority he has asserted to detain anyone anywhere in the world as an ‘enemy combatant.’ The president claims this authority for anyone detained in the ‘Global War on Terror’ even if that detention was far from a battlefield and the person had nothing to do with a war as traditionally known. It’s the assertion that acts of terrorism or affiliation with a terrorist group can be treated as acts of war and alleged terrorists can be held in a way analogous to how POWs are held in a real shooting war. In other words such alleged terrorists can, according to Bush, be held indefinitely until the end of the ‘Global War on Terror.’ In normal circumstances such people would be tried for crimes in federal courts, but not today.

“Two issues arise from this. The first is what has finally been decided in the Gitmo cases — assuming the president has the claimed authority to detain people as ‘enemy combatants,’ can those people at least challenge their detention as ‘enemy combatants’ and in that challenge what process is due and what is the definition of enemy combatant? This is an important issue, but if we only win that we have lost the bigger battle — for what we would then have is a preventive detention scheme for alleged terrorists — albeit one in which the detainee can challenge that detention.

“The second issue to arise is the key one: Can a person who is alleged to commit or plan acts of terrorism or claimed to have affiliation with a terrorist group (as in al-Marri’s case) be held indefinitely as an ‘enemy combatant’ and never tried for a crime — in other words can he be preventively detained without a criminal trial? The Supreme Court has not ruled on this either in the Gitmo cases or domestic ones, which is only al-Marri at this point.

“The Fourth Circuit (5-4) has now held that a U.S. resident or lawful immigrant (the reasoning would apply to citizens as well) can be held indefinitely as an enemy combatant and never need be tried (yes he can test that detention — but the question asked at the hearing is whether he is an enemy combatant — once that is answered he can be held indefinitely.)

“In al-Marri, the bad part of the decision is based on a congressional statute — the 2001 Authorization for Use of Military Force, which addressed the use of force against al-Qaeda. It is that statute which the court said authorized the detention at issue — even though the detention took place in the U.S.

“It is a very, very dangerous decision. It literally means citizens in the U.S. can be detained as ‘enemy combatants’ in solitary confinement indefinitely and, while they can get a hearing, they never need be tried.

“The court in the narrow decision has put its imprimatur on the most dangerous departure from fundamental rights: the administration’s treatment of what should be serious crimes as acts of war and its departure from fundamental protections of our constitution that should apply to those who are alleged to have engaged in criminal conduct. The claimed legal underpinning of the brutality of the administration toward the detainees — from torture to rendition to special trials — stems from its claim to be fighting a war on terror, when in fact it should be prosecuting crimes and giving suspects the protections of a civilized society.”

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167