Enemy Combatant, Redefined

It appears the Fourth Circuit Court of Appeals believes that the US can’t be at war with Al Qaeda because it is a private group.

 The Court ruled that; For the “enemy combatant” moniker to apply, a terrorist must have set foot in the soil “alongside” the forces of an enemy state — i.e., Iraq or Afghanistan. 

So this begs the question, just exactly what enemy state is Al Qaeda associated with?  From the Wall Street Journal:

The judges also get around the fact that their decision contradicts existing precedent in both their own circuit and the Supreme Court. In Hamdi v. Rumsfeld, the Supreme Court ruled that an American captured on a battlefield in Afghanistan could be designated an enemy combatant. Ditto Fourth Circuit precedent, which strengthened Hamdi with its ruling in the case of Jose Padilla, the U.S. citizen who was arrested at O’Hare airport with plans to detonate a dirty bomb.

Judges Motz and Gregory duck these precedents by ruling that al-Marri belongs in a different category, having never taken up arms on a foreign battlefield. He was merely trying to kill us here at home. Al-Marri came to the U.S. on a student visa as part of an al Qaeda “sleeper cell,” looking for new opportunities to disrupt the U.S. financial system after September 11. Working for 9/11 honcho Khalid Sheikh Mohammed, he posed as a student at Bradley University while plotting. He was arrested for credit card fraud, and as his case worked through the court system, evidence of his al Qaeda affiliation built and he was transferred to a military brig in South Carolina.

Don’t be too surprised, two of the judges on the bench are Clinton appointees, but this decision should have Al Qaeda jumping for joy.  If an Al Qaeda member gets training outside a wartime environment and commits a terrorist attack on US soil, the Fourth Circuit Court of Appeals decision means such member cannot be considered an enemy combatant and cannot be subjected to military interrogation.  The only course of action is through the criminal court system.

The Journal believes this case will be overturned on Appeal.  We can only hope.

Another good article from the Journal is here.

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