The Constitution - Still A Governing Document! Who Knew?

One of the problems with government-by-bumper-sticker is that the details simply don't matter and aren't even really looked at with any kind of rigor. Such has been the case with the truly awful Military Commissions Act, which faced defeat again yesterday when the 4th Circuit Court of Appeals ruled that the United States cannot indefinitely hold a detainee without charging them with something.

The opinion is a blow to the Bush administration's assertion that the president has exceptionally broad powers to combat terrorism, including the authority to detain without charges foreign citizens living legally in the United States.

It is the first time a court has said that (Ali Saleh Kahlah al-) Marri cannot be held forever without facing formal charges, but it is a symbolic victory -- Marri will continue his detention in a naval brig in Charleston, S.C. The government said that it was disappointed by the 2 to 1 decision, handed down by a panel of the U.S. Court of Appeals for the 4th Circuit, and that it will appeal to the full court [...]

"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found.

What the Appeals Court is asserting here is essentially the right to habeas corpus, without actually saying it. The Bush Administration was essentially making a legal argument that boiled down to "I can do whatever I want," and as much as sympathetic elements in the courts would like to help him with that (the 4th Circuit is a fairly conservative court), they can't square this arrogant, stubborn and anti-democratic theory of the unitary executive with the Constitution.

By the way, while this doesn't mean that Ali al-Marri will be released anytime soon, it is a good thing that he may be one step closer to returning to Blue Oyster Cult when they play state fairs this summer: