By a two-to-one margin, a federal appeals court has repudiated George W. Bush’s right to snatch a civilian off the streets of America and hold the person indefinitely without trial. But the makeup of the three-judge panel was a fluke, with two Clinton appointees comprising the majority.

The proportion of Republican appointees to Democrats on the full U.S. Court of Appeals in Richmond, Virginia, is the opposite, eight-to-four Republican. So, the Bush administration retains high hopes that the full court will agree to review the case of Ali al-Marri and grant the President the authority he wants.

The case, which tests the limits of Bush’s claims to “plenary” – or unlimited – powers as Commander in Chief, eventually is expected to reach the U.S. Supreme Court where Bush has four of nine justices solidly in his corner – Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

Assuming the roster of the Supreme Court remains the same, the swing vote is expected to be Justice Anthony Kennedy, who is considered a loyal Republican – the author of the December 2000 ruling awarding Bush the White House – but who has objected to some elements of Bush’s expansive presidential authority.

The two-to-one decision in Richmond on June 11 also highlights the schism that is opening in the federal courts. On one side are a relatively small number of Democratic judges, often allied with aging moderate Republicans, and on the other are more extreme conservatives, many with ties to the right-wing Federalist Society agreeing that Bush’s “war on terror” must trump civil liberties.

For at least a while longer, Bush’s faction would appear to have time on its side with the old guard fading away and Bush still in position to pick the successors, although the slim Democratic Senate majority has complicated the process.

On the U.S. Supreme Court, for instance, moderate Republican John Paul Stevens is 87 years old and Democrat Ruth Bader Ginsburg is known have battled health problems. If one of those seats should open and if Bush could push through even a moderately conservative justice or a right-wing senator like, say, Orrin Hatch, the President might have the solid majority that he has long coveted.

That means that if Bush can either persuade Justice Kennedy on the al-Marri case or replace one of the more liberal justices before the case reaches the high court, Bush could achieve a lasting legacy. He would have transformed the old U.S. Republic with its ideals about “unalienable” rights into an autocratic national security state with the President imbued with the power to, in effect, “disappear” people.

Full Court Press

Bush’s chances of prevailing could get a boost, too, if the Richmond appeals court overturns the ruling of the three-judge panel. The two Clinton-appointed judges, Diana Gribbon Motz and Roger L. Gregory, won’t have the numerical edge if the full appeals court agrees to hear the case as is expected.

The Fourth Circuit Court of Appeals, considered one of the most conservative in the country, has eight active judges who were selected by Republican presidents – one Nixon-appointed judge; two Reagan-appointed judges, three judges picked by President George H..W. Bush, and two judges named by George W. Bush. All four Democrats were selected by President Clinton.

Some of the Republican judges, such as J. Harvie Wilkinson, previously have supported presidential authority to hold “war on terror” suspects indefinitely without due process, as in the case of U.S. citizen Yader Esam Hamdi, who was captured in Afghanistan. That pro-Bush ruling, written by Wilkinson, was overturned by the U.S. Supreme Court.

But it’s less clear if the more traditional conservatives on the Richmond appeals court will back the right of the President to detain civilians arrested in the United States as in the al-Marri case.

Ali al-Marri, a Qatar citizen, was arrested on Dec. 12, 2001, in Peoria, Illinois, while living with his family and studying computer science at Bradley University. Though initially charged with credit-card fraud and lying to federal agents, al-Marri was transferred into military custody in 2003 as an alleged “enemy combatant” and placed in the Navy brig in Charleston, South Carolina.

The Bush administration claimed al-Marri was a “sleeper agent” who trained at Osama bin Laden’s camp in Afghanistan and entered the United States in the summer of 2001 with the intent of disrupting the U.S. financial system.

In her ruling, Judge Motz wrote that the U.S. military could not detain al-Marri because there was no evidence that he had ever fought against the United States.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Motz wrote, “even if the President calls them ‘enemy combatants’ would have disastrous consequences for the Constitution – and the country.”

Such a presidential power “would so alter the constitutional foundations of our Republic” that there was no choice but to conclude that the “military detention of al-Marri must cease,” Judge Motz wrote. Judge Gregory concurred in the opinion.

In the dissent, visiting federal judge Henry Hudson, a George W. Bush appointee, argued that Bush could detain al-Marri as an enemy combatant because “he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States.”

Rather than remand al-Marri to civilian custody after Motz’s ruling, the Justice Department said it would continue al-Marri’s military detention while seeking a rehearing by the full appeals court, a move that is likely to be followed by the case going to the Supreme Court.

During his first 16 months in the Charleston brig, al-Marri was denied any contact with his lawyers or family. According to a 2005 lawsuit filed on his behalf, al-Marri also was subjected to harsh treatment, including threats that he could be sent to Egypt or Saudi Arabia where he would likely be tortured, sodomized and forced to watch his wife raped.

Civil libertarians hailed the al-Marri ruling as a significant defeat for Bush’s vision of an imperial presidency. But the fragility of the judicial consensus holding the line against the President's "plenary" powers signals that the battle to sustain the Founders’ vision of a Republic based on the rule of law and recognizing “certain unalienable rights” is far from over.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

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