Bad Day for Bush

Yesterday was a bad day for Bush.

His immigration bill has stalled.

His watch was stolen.

But I'm most interested three-judge panel in the Fourth Circuit's rejection of the Government's position that a non-combatant resident alien, apprehended on American soil, could be held indefinitely as an "enemy combatant." (By the way, for clarity, let's say what we mean. "Enemy Combatant" is a term of art under the Geneva Convention that means a "solider.") This is a pretty narrow holding: if you are a soldier in, e.g., the Taliban, you could be held even if apprehended in the U.S.; if you are apprehended outside the U.S. you have to still go through Gitmo's separate administrative process to determine if you're a solider. Only if you're not a solider is the military precluded from holding you. And, the panel rejected that the President has power to unilaterally decide that someone is a solider, especially someone who is within the U.S. and to whom the Constitution applies. That's it. My summary of the 86 page opinion. And this would not be that notable an outcome but for the Gov't making some really wacky arguments that the Court then had to address.

My favorite was the argument that the President has inherent power under the Constitution (that means power not in any way tempered by the Courts or Congress) to detain anyone who he believes threatens the country under his war powers. Wrong. Wrong. Wrong. As I once heard in law school, "Your position is like the thirteenth chime of a clock, not only is it irrelevant and nonsensical, but it also calls into question the legitimacy of all previous chimes." Or another good response would have been: "Mr. [President], what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul." And, oh, in case there's some confusion, that means WRONG.

Any person within the United States and any citizen anywhere enjoy Constitutional protections against intrusion of government power. Among those protections: habeas corpus (the right to a petition a court for release from wrongful confinement); civilian primacy over the military; due process of law. The government's whacked out position led to such fantastic sound-bites as “We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.” We can all thank god that some of Justice's positions are so insane. Otherwise we wouldn't have the amusement of watching them get struck down quite so hard.

But, leaving aside Bush's power grabs that no court's going to allow, and looking ahead at the narrow heart of the split of opinion between the majority and dissent -- whether Al-Marri was a solider for Al Queda or just some schmuck who associated with them -- it will probably go for a rehearing before the full Fourth Circuit. The decision yesterday was by two Clinton appointees with one Bush II appointee dissenting. The full Fourth Circuit is generally regarded as one of the most conservative in the country, so I'd expect them to lean more towards the dissent. This is by no means the end of this story.

(I promise. Back to running next time.)

June 9: 4.14 miles in 30:36 (7:22/mi)
June 10: 12.6 miles in 1:36:07 (7:38/mi)
June 12: 8.6 miles in 68:40 (7:59/mi)
June 13: 4.4 miles in 32:57 (7:29/mi)