Judges Rule Against U.S. On Detained ‘Combatant’ By Carol D. Leonnig, Washington Post Staff Writer

“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 panel found. …

The 4th Circuit, based in Richmond, is considered one of the most conservative in the country, but the three-judge panel that heard the case was not. Two judges known as moderates, both appointed by President Bill Clinton, made up the majority in the decision. … U.S. District Judge Henry E. Hudson, a Bush appointee, dissented from the opinion. Hudson contended that Bush had the power to detain enemy combatants ….

The panel found that the 2006 Military Commissions Act, which prohibits enemy combatants from challenging the basis for their imprisonment in U.S. courts, does not apply to a person living legally in the United States. The judges also doubted the legality of classifying someone as an enemy combatant who was not caught on the battlefield or was not carrying arms.

Civil libertarians who championed Marri’s case had warned that if the administration prevailed in its argument, the military could next round up U.S. citizens and jail them without trial. The court appeared to agree.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians . . . would have disastrous consequences for the constitution — and the country,” U.S. Circuit Judge Diana Gribbon Motz wrote for the majority.