I’ll admit it. I never understood how someone who is legally living in the U.S. can suddenly become an “enemy combatant” and held without charge in a U.S. Navy Brig. Isn’t there supposed to be due process? The U.S. Fourth Circuit Court of Appeals thinks so.

Thanks to The Blog of Legal Times for highlighting this recent legal opinion on Kahlah al-Marri, a Qatari man who was legally in the U.S. on a student visa. In a 2-1 decision, Judge Diana Motz wrote the majority opinion parsing some of the convoluted legal reasoning the Bush administration uses in declaring enemy combatant status.

We recognize the understandable instincts of those who wish to treat domestic terrorists as ‘combatants’ in a ‘global war on terror’. Allegations of criminal activity in association with a terrorist organization, however, do no permit the Government to transform a civilian into an enemy combatant subject to indefinite military detention, any more than allegations of murder in association with others while in military service permit the government to transform a civilian into a soldier subject to trial by court martial.

Judge Motz eventually tied the majority decision to the notion that upholding presidential power to order the military to seize and detain civilians indefinitely would “render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments.”

In writing the minority opinion, Judge Hudson dissented largely based on the Supreme Court precedent set in Hamdi v. Rumsfeld. I’m not troubled that he dissented based on recent precedent but rather that he undermines his own argument when he notes that

Given the unconventional nature of the conflict that the United States is engaged in with al Qaeda, the exact definitions of ‘enemy combatants’ and ‘enemy belligerents’ are difficult to conceptualize and apply with precision.

How are detainees to prove that they are not an enemy combatant? Since the government can declare someone an enemy combatant by fiat, I would imagine it’s nearly impossible to prove that you are not an enemy combatant when being one is “difficult to conceptualize and apply precisely.”