“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive,” or so they (Justice Scalia) say.
On Tuesday, the Fourth District Court of Appeals issued two rulings on the case of Al-Marri v Pucciarelli. One of these stated that an enemy combatant held in U.S. soil may petition a civilian court to be given access to evidence against him and may present counter-evidence as well. It has been hailed by the lead counsel on the case, Jonathan Hafetz, as a rebuke of “the Administration’s view of untrammeled executive power, unchecked by any Court.”
But, the ruling was very vague as to how this court proceeding would be carried out and to what level of access to evidence a detainee would be granted.
The small gains issued in this ruling were further tempered by a second ruling stating that the Executive has the power to indefinitely detain anyone deemed as a wartime combatant, even American citizens, without trial.
The close and highly contested rulings, both decided in split courts, were surprising considering the typically conservative nature the Fourth District Court.
Hopefully, the Supreme Court (Mr. Hafetz has confirmed that they will be seeking Supreme Court review of this case) will take heed of Justice Scalia’s sentiments concerning Executive Detention when they consider Mr. al-Marri’s case.