‘Enemy Combatants’ Cast Into a Constitutional Hell

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, practices law in New Jersey and is the senior judicial analyst at Fox News.

President Bush has declared Ali Saleh Kahlah Al-Marri of Peoria, Ill., an enemy combatant.

Al-Marri was arrested shortly after Sept. 11, 2001, and indicted by a federal grand jury for lying to FBI agents about the dates he traveled in the U.S. and the dates he made certain telephone calls and for possession of false credit cards. When he refused to cooperate with the Justice Department in its investigation of terrorism, as is his right, Atty. Gen. John Ashcroft asked a court to dismiss the indictment against him, which it did; asked President Bush to declare Al-Marri an enemy combatant, which he did Monday; and then whisked Al-Marri under cover of darkness from a federal holding facility in Chicago to a Navy brig in South Carolina.

Al-Marri could languish there for the rest of his life without ever having been convicted of a crime. He has no access to family, friends or lawyers, and he may never see a judge, a jury or a prosecutor. Under this administration’s interpretation of the law, it’s possible that he won’t be charged, tried or convicted, and all the while he’ll be held in solitary confinement.

The president -- using standards not legislated by Congress, not approved by any court and never made known to the public -- has claimed the right to incarcerate enemy combatants until the war on terrorism is over. But when will that be?


The president has also floated a plan to try enemy combatants before secret panels of American soldiers whenever he wants to -- such as in Cuba, where he claims the U.S. Constitution doesn’t apply.

What’s going on here? An end run around the Constitution.

The administration has done this before. Yaser Esam Hamdi, a 19-year-old American arrested in Afghanistan near a field of battle but without a weapon, and Jose Padilla, a 25-year-old American arrested at O’Hare Airport in Chicago after meeting with Muslim clerics in Pakistan, have both been declared enemy combatants.

In Hamdi’s case, the U.S. Court of Appeals, after a partly secret argument, agreed that he could not see a lawyer. In Padilla’s case, a federal district judge ordered the government to let him speak with his lawyer, but the government has refused to do so and has appealed. In both cases, the government made the ludicrous argument that because neither Hamdi nor Padilla was charged with a crime, neither was entitled to a lawyer.

In all three of these cases, the government relies for support on a misunderstood U.S. Supreme Court decision rendered in the World War II Quirin case. The court allowed President Roosevelt to arrest, charge and try before a military tribunal eight German soldiers who made it to our shores. The eight were, the court declared, enemy combatants because they were uniformed soldiers of a foreign government on which the U.S. had declared war.

Nowhere in the Quirin opinion did the court say the president had blanket authority to declare anyone an enemy combatant at the request of the attorney general. Nowhere did the court say the president could indefinitely lock up anyone who didn’t cooperate with the Justice Department.

In fact, Quirin actually stands for the very opposite than that which the government claims: It says all persons in this country are entitled to basic due-process rights. The danger of the government’s arguments in support of its policy of punishment by fiat cannot be overestimated.


The government wants to disregard -- even avoid -- the Constitution itself. It has told lower federal courts that the president is not required to reveal his reasons for designating a person an enemy combatant and that his actions in doing so are not reviewable in any court. If that were so, it would stand American constitutional law on its head.

The U.S. Supreme Court has held countless times that all persons confined by the government are presumed innocent until proven guilty, must be told the reasons for their confinement and are entitled to challenge those reasons promptly in a court. And the Supreme Court has also held countless times that it has power to review and to void all acts of the Congress and the president.

For more than 200 years, judicial review, by which the courts enforce the Constitution’s guarantees against the wishes of reluctant prosecutors, has been the salvation of our freedoms.

The very core of American history, law and culture condemns the ideas of punishment before trial, denial of due process and secret government by fiat.

We have tried the likes of Timothy McVeigh and Charles Manson, Al Capone and O.J. Simpson, Tokyo Rose and the Rosenbergs. So who is an enemy combatant? Not John Walker Lindh, who fought alongside the Taliban. Not Zacarias Moussaoui, who the government says helped plan the 9/11 attacks. Not Lyman Faris, who allegedly plotted to blow up the Brooklyn Bridge. The Constitution protected their rights.

Who is an enemy combatant? Today, it can be anyone the president wants.

And that is terrifying.