6-20-07, 9:34 am

The Iraqi government isn't meeting their benchmarks (conditional demands that Iraq must meet in order to receive US funds to repair their US battered land) and President Bush isn't getting good response from the appellate bench in Richmond, VA either. This could wind up to be a good summer after all. Recently the act of frivolously labeling anyone an 'enemy combatant' just took a swift kick in the groin on 6/11/07. Exactly one day before the late President Ronald Reagan's 'tear down this wall' statement to Gorbachev an American president who is building more walls than any other in history got quite a few bricks repossessed.

For the time being 'enemy combatant' won't mean a damn thing other than just name calling because he won't be able to lock up any American citizen or anyone lawfully entering the US and establishing ties here and hold them without explanation to the detainees' family or contact with his attorneys or subject him to the US military's barbarous interrogation tactics. I can't help but think that it serves Bush right anyway, for a guy who never experienced any personal combat outside of fist-fighting his own father in the backyard, for him to go skipping around calling real people 'enemy combatants' is blasphemy. The underlying fear is that he can and eventually will do it to anyone. But a judge in Richmond VA recently said 'the president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian an enemy combatant.'

If his run of bad luck continues with judges maybe W will challenge 4th Circuit judges Diana Gribbon Motz and Judge Roger L. Gregory to duke it out with him. These were the two responsible for the 2-1 ruling. Oddly enough this is a notoriously conservative court that covers 5 southern states. Motz's father according to one blogger, was a conservative pro-business attorney in DC and Reagan appointed her husband Fred Motz to Federal District Judge back in '85. It was she who contributed the most to writing this decision: 'To sanction such presidential authority to order the military to seize and indefinitely detain civilians even if the president calls them 'enemy combatants,' would have disastrous consequences for the Constitution-and the country . We refuse to recognize a claim to power that would so alter the constitutional foundations of our republic.'

Gregory is the first African American appointed to the US Court of Appeals 4th Circuit. He is a recent winner of the L. Douglas Wilder School of Government and Public Affairs at Virginia Commonwealth, like Motz he was a Clinton appointee but re-nominated by Bush and confirmed by senate for a lifetime appointment on 7/25/01. Gregory was also a former law partner of Wilder's. He reminds me of another black judge spiking one of Bush's constitutionally infringing ideas; Anna Diggs Taylor of Michigan back in 8/06 when she rendered a decision striking down electronic eavesdropping. This ruling is of immediate benefit to people like Jose Padilla the current poster-boy for Bush's 'enemy combatant' railroading, but it was handed down specifically during the case of Ali al-Marri of Qatar who is presently in military custody in Charleston SC (the 4th District has jurisdiction over MD, VA, WV, NC, SC). Dissenting Judge Henry Hudson called al-Marri a 'stealth warrior' due to such un-American activities as credit card fraud and lying to the authorities (which of course put him on a par with countless white collar perpetrators from various US suburbs). Fortunately for the Constitution Judge Hudson's transaction could not be completed.

Of course the 4th Circuit is made up of more judges. It is the Department of Justice that hopes the full 4th Circuit will rehear this case or that it will eventually reach the Supreme Court. The 6/12 New York Times quoted the Justice Department regarding al-Marri: as 'an individual who trained at Osama bin Laden's terrorist training camp in Afghanistan. In the summer of 2000, he met with Khalid Shaykh Muhammed, the mastermind of the September 11th attacks, and entered the United States just before September 11 to serve as an al-Qaeda sleeper agent and to explore methods of disrupting the US financial system.' Hmmm, disrupt the American financial system? You mean like Bush and Cheney have done? Does that make them sleeper agents?

Al-Marri was arrested on 12/12/01 in Peoria Ill and during his first 16 months in the brig was subjected to the same type of sensory deprivation and threats from interrogators that Padilla has. One of al-Marri's attorneys Jonathan Hafetz said that rulings that prevent Bush from making immigrants disappear is what separates democratic nations from police states. Hopefully these judicial insights will continue, a bad day for Bush is a good day for humanity.

--Chris Stevenson is a columnist for the Buffalo Criterion. Contact him at