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Bench Memos

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No Naïve Deed Goes Unpunished



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On Monday, a divided panel of the Fourth Circuit ruled that Ali Saleh Kahlah al-Marri, an alien lawfully residing in the United States who was determined by the President to be an agent of al Qaeda, cannot be detained as an enemy combatant.  NRO on Tuesday explained in both a house editorial and in an essay by Andy McCarthy (“Lawfare Strikes Again”) why this is a terrible decision that is likely to be reversed, and the Wall Street Journal today features (online access only to subscribers) its own house editorial as well as an excellent op-ed by Brad Berenson.

 

I will limit myself to one observation.  The Wall Street Journal identifies the two members of the Fourth Circuit majority, Judge Diane Motz and Judge Roger Gregory, as “both Bill Clinton nominees”.  That’s true, but painfully incomplete.  Clinton recess-appointed Gregory to the Fourth Circuit in December 2000, and President Bush, in an unrequited—and, one might even say, foolish—gesture of goodwill, then renominated Gregory and, following Senate confirmation, appointed him to his lifetime seat in 2001.  Had he not done so, Gregory’s recess appointment would long ago have expired.  Alternatively, the White House might have expressly conditioned President Bush’s execution of Gregory’s commission (the formal act of appointment post-confirmation) on the Senate’s prior confirmation of other nominees to the Fourth Circuit and other courts of appeals.    

 

Tags: Whelan


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