A Startling Civil Liberties Twist

Well, this is a dangerous ruling.  Today, The District of Columbia Circuit Court of Appeals ruled that the Presidential power to detain terrorists goes beyond even the Geneva Convention and other “rules of war”, according to the New York Times.  This is especially interesting in that it was just about a unanimous decision; two of the judges agreed on the same opinion, but even though the third agreed with them in the ruling, he wrote his own concurring opinion.  This judge, Stephen F. Williams, argued that the scope of the President’s power “goes beyond even what the government argued.”  According to the Times, these judges are the most conservative of all the Federal judges; the two writing the majority opinion were appointed by President George W. Bush, while Judge Williams was appointed by the President who is now revered by the GOP as being the model conservative, Pres. Ronald Reagan.  Political orientation aside, this is potentially one of the scariest rulings to emerge from the American courts in recent memory.

The decision itself was upholding a lower court ruling that a Guantanamo detainee, Ghaleb Nassar al-Bihani, should not be released under a habeas corpus petition.  That lower decision and the appeal were based on a 2008 Supreme Court decision, Boumediene v. Bush, which allows detainees to challenge their detention.  According to this decision, while Guantanamo detainees can challenge their detention in Federal court, there are limits placed on it, which have largely been left to be defined to the courts.  The decision in this later case, al-Bihani v. Obama, is among the first to apply this ruling.  It can still be reheard by the full Appellate Court, or it can be overturned by the Supreme Court, but this decision is enough to give civil libertarians pause.

Judge Brown also wrote a concurring opinion, in addition to signing on to the majority.  In it, she suggests that the war has brought America “past the leading edge of a new and frightening paradigm, one that demands new rules be written.  War is a challenge to law, and the law must adjust.”  Wow.  Civil Liberties proponents had a field day with the Patriot Act; this decision should be challenged ASAP.  In essence, Judge Brown legitimizes the entire Bush doctrine regarding enemy combatants.  It is a step backward if this decision is allowed to stand, especially because of the venue.  As the New York Times points out, the District of Columbia Circuit would be the primary legal venue for many of the Guantanamo cases.  Therefore this ruling will have a major influence.  Assuming at least one of the civil-liberties-related interest groups is not asleep at the wheel, this story is not over.