Hurrah for the 4th Circuit Court

Jacob Sullum wraps up the news about the U.S. Court of Appeals for the 4th Circuit decision which strikes down the government's claim to have the power to detain suspects and hold them without charges indefinitely:

By the administration's account, the president already had the authority to detain not just aliens but citizens, not just for a week but for life, based on his own determination that they qualify as "enemy combatants." Rejecting this theory, the U.S. Court of Appeals for the 4th Circuit has struck a blow for due process and the rule of law, both of which are threatened by President Bush's assertion of the king-like power to lock people up at his discretion and throw away the key.

[. . .]

In deciding that al-Marri can likewise be tried in a criminal court but cannot legally be kept in military detention, the 4th Circuit distinguished his case from those of Hamdi and Padilla, noting that he has not been accused of taking up arms with the Taliban. "The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the court ruled, adding that such a power "would effectively undermine all of the freedoms guaranteed by the Constitution."

With the Bush administration winding down and the strong possibility of a Democrat in the White House come January 2009, perhaps Republicans will begin to see the wisdom of this warning.

The power to hold someone in custody for an indefinite period of time without ever charging them with a crime is too much power to grant to any government. As Blackstone wrote, "The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." (Quoted here.) The US Constitution is pretty clear on this, too: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Neither of those two cases apply to the current situation.