In a recent 4th Circuit decision, al-Marri v. Cmdr S.L. Wright, Judge Diana Gribbon Motz said:
“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 military detention,” Motz wrote. “Put simply, the Constitution does not allow the president to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’”
Al-Marri had been in the U.S. legally since 2001. The DOJ alleged he was a sleeper agent for the al-Qaida and that he had been to a terrorist boot camp and met with a known terrorist in the past. However, the court found no evidence that he had actually “born arms” against the U.S.
The decision has no effect on detainees captured outside of the U.S. and who are not citizens of the U.S. The court recognized that the possibility existed that al-Marri is the terrorist that the DOJ alleges but upheld the Constitution by demanding more than just allegations for someone legally on U.S. soil to be held indefinitely without the protections of criminal processes. The DOJ still has the opportunity to charge al-Marri with some specific crime and present evidence, but he will not remain in military detention.