Fourth Circuit Rules That Suspected Terrorist Cannot Be Seized and Detained in U.S. WIthout Being Charged With Crime in Court:
In a stunning decision, a divided panel of the Fourth Circuit has squarely rejected the Bush Administration's view that it can detain an alien terrorist suspect lawfully in the United States as an "enemy combatant." The case is Al-Marri v. Wright, and the opinion was authored by Judge Motz and joined by Judge Gregory. This is a very important case; I suspect the Supreme Court will take it if the Fourth Circuit doesn't go en banc. While I'm at it, I'll wager a guess that the Supreme Court will reverse.
Ali A-Marri is a citizen of Qatar who attended college in the U.S. in the late 1980s and early 1990s. Al-Marri then left the U.S.; he returned to the states on September 10, 2001, allegedly to attend graduate school at Bradley University. The government believes that Al-Marri is an Al-Qaeda member who is supposed to be part of the "second wave" of teror attacks following 9/11. Al-Marri was arrested in December 2001 in illinois and was charged criminally, but in 2003 President Bush signed an order declaring Al-Marri an "enemy combatant." Since then, Al-Marri has been held as an enemy combatant.
In today's decision, the Fourth Circuit ordered that l-Marri must be set free from military detention. After holding that Congress did not strip jurisdiction over the case in its 2005 and 2005 habeas legislation, the court held that the government does not have any statutory authority to detain Al-Marri and has no "inherent" constitutional authority to do so. According to Judge Motz, Al-Marri was not an "enemy combatant" who could be detained under the AUMF because unlike Hamdi, Al-Marri was just a suspected Al-Qaeda terrorist: he was not someone who had been connected to international hostilities like the war in Afghanistan. The court takes a very narrow view of the category "enemy combatant"; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist:
The Court next rejects the government's claim that the President has inherent authority to detain Al-Qaeda suspects. In language that David Addington isn't going to like, Judge Motz takes a very different view of the President's inherent powers:
Finally, a note to readers: This is a long and complex decision that I have blogged very quickly in light of its importance. If I've missed something, or have a factual error, please e-mail me and I will correct the error.
Ali A-Marri is a citizen of Qatar who attended college in the U.S. in the late 1980s and early 1990s. Al-Marri then left the U.S.; he returned to the states on September 10, 2001, allegedly to attend graduate school at Bradley University. The government believes that Al-Marri is an Al-Qaeda member who is supposed to be part of the "second wave" of teror attacks following 9/11. Al-Marri was arrested in December 2001 in illinois and was charged criminally, but in 2003 President Bush signed an order declaring Al-Marri an "enemy combatant." Since then, Al-Marri has been held as an enemy combatant.
In today's decision, the Fourth Circuit ordered that l-Marri must be set free from military detention. After holding that Congress did not strip jurisdiction over the case in its 2005 and 2005 habeas legislation, the court held that the government does not have any statutory authority to detain Al-Marri and has no "inherent" constitutional authority to do so. According to Judge Motz, Al-Marri was not an "enemy combatant" who could be detained under the AUMF because unlike Hamdi, Al-Marri was just a suspected Al-Qaeda terrorist: he was not someone who had been connected to international hostilities like the war in Afghanistan. The court takes a very narrow view of the category "enemy combatant"; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist:
[U]nlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world. See Rapp Declaration (alleging none of these facts, but instead that “Al- Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States”).According to the Fourth Circuit, this left Al-Marri as a "civilian," and thus entitled to the Due Process protections of anyone lawfully in the United States. In other words, the AUMF just doesn't reach so far as to permit the military to detain a civilian terrorist suspect in the U.S. like Al-Marri.
In place of the “classic wartime detention” that the Government argued justified Hamdi’s detention as an enemy combatant, or the “classic battlefield” detention it maintained justified Padilla’s, here the Government argues that al-Marri’s seizure and indefinite military detention in this country are justified “because he engaged in, and continues to pose a very real threat of carrying out, . . . acts of international terrorism.”
The Court next rejects the government's claim that the President has inherent authority to detain Al-Qaeda suspects. In language that David Addington isn't going to like, Judge Motz takes a very different view of the President's inherent powers:
[A]bsent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. 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. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.”My prediction: I tend to doubt this decision will stand. My very tentative guess is that either the en banc Fourth Circuit or the Supreme Court will reverse, holding that the AUMF is broad enough to authorize an Al-Qaeda suspect like Al-Marri and therefore the detention is authorized by statute.
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. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
Finally, a note to readers: This is a long and complex decision that I have blogged very quickly in light of its importance. If I've missed something, or have a factual error, please e-mail me and I will correct the error.
Related Posts (on one page):
- Fourth Circuit Grants Petition for Rehearing in Al-Marri:
- Federalist Society Online Debate on the Al-Marri Decision:
- Thoughts on the Continuum Between War and Crime:
- What Should Happen to Al Qaeda Cell Members Discovered in the United States?:
- Fourth Circuit Rules That Suspected Terrorist Cannot Be Seized and Detained in U.S. WIthout Being Charged With Crime in Court:
Until I'm shown otherwise, I think the panel majority has made a persuasive case that the AUMF doesn't control -- not least, for the reasons stated by Andrew Lazarus. (And not just aliens, the court notes -- anybody, citizen or not.)
I really can't tell what might happen in SCOTUS (the 4th Circuit en banc I agree would likely reverse). It could be interesting in that it could come down to Scalia's vote. Will we see the Hamdi Scalia or the Hamdan Scalia? The HamdiScalia would affirm, while the Hamdan Scalia would reverse.
So charge it and prove it already! I am sickened by the continuing insinuation that a democratic republic cannot defend itself from terrorists with due process rights.
I would also be interested to know why you so quickly come to the conclusion that this decision will not stand. I agree that the 4th Cir. is generally sympathetic to the President's view of his power in these cases and the Supreme Court could well deny cert., but if it does not go en banc, why do you think the Court would reverse? Is it because this individual is accused of being the "second wave" of 9/11 attackers? Would it make a difference if the plot were an all-new al quada attack, by people recruited after 9/11, or does the "war on terror" mean that the AUMF applies to any arab terrorist from now on?
In other words, even with the AUMF, wouldn't the Fifth Amendment protect against indefinite detention based on nothing more than the executive's say-so?
(Sorry if I'm missing something obvious here.)
Also, in terms of simple numbers, since Bush hasn't seen fit to actually add judges to the Fourth Circuit as needed, it's not nearly as "conservative" as its reputation.
(1) Bush could veto the revocation, couldn't he?
(2) Even if he couldn't or didn't veto it, that would be one hell of a signing statement.
The 4th should be quickly slapped down on this. I do think that terrorists deserve more rights than a speedy application of "Rule .303" but not a whole lot more.
You don't know that. All you know is that President Bush SAYS that al-Marri was plotting acts of sabotage in civilian areas.
That's basically the issue -- are you comfortable with a regime in which any person can be thrown in prison forever with no recourse as long as the President is willing to accuse that person of being a terrorist?
This seems to me to be an entirely sensible and uncontroversial legal conclusion.
Prof. K, would you disagree with this holding?
Do you think the relevant issue or question is different from this?
For example?
and unambiguous rulings
What exactly was "unambiguous" in Hamdi and Quirin that compels reversal of the panel decision?
The guy is accused of being a terrorist, period. Why on earth should he be subject to indefinite military detention on the executive's say-so?
And you know this how?
In terms of why I suspect the Superme Court would reverse, my thinking is obviously tentative. But here are my thoughts. First, I would guess that Kennedy, Roberts, Alito, and Thomas would probably say that the AUMF authorized the detention; if it authorized the detention of citizen Hamdi, it can authorize the detention of non-citizen Al-Marri. Breyer may or may not agree; he joined the Hamdi plurality, but I don't know where he would come out in this case. I would guess that Scalia would agree to reverse on jurisdictional grounds, see his Hamdan dissent. Thomas would agree with the Article II claim beyond the AUMF, but need not get there. If these guesses are right, you would end up with 5 or 6 votes to reverse, possibly without a majority opinion of the Court. Obviously, though, this is just a very tentative guess. I'm interested in hearing more as to why my guesses are off, which they often are.
Thomas would probably agree with this -- do we know from prior rulings how Kennedy, Roberts, and Alito would rule on the power of Congress to authorize indefinite detentions of aliens legally residing in the US?
The MCA and Ex Parte Quirin both give Al-Marri and avenue to prove his innocence: a trial before a military commission. Military trials are good enough for our service men and women, its good enouhg for Lt. Watada, why isn't it good enought for terrorists?
There is a clear concensus in this country, and it was one of the prime recomendations of the 9/11 Commission that we treat the WOT as a war, not as a criminal matter.
Steve:
The Supreme Court in Hamdi last year affirmed Ex Parte Quirin and used it as road map for laying out the how the Military Commissions should be constituted.
Martin:
Of course that is just an allegation, the Military Commission will be the trier of fact, not you or I.
Bush is following the rule of law, you just don't approve of what the law is.
Look closely at Scalia's dissent in Hamdan. Scalia relies on Johnson v. Eisentrager, 339 U. S. 763, 768 (1950) for the jurisdictional determination. Johnson stated:
We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. (emphasis added)
This is clearly not the issue in Al-Marri, where the detention was always on U.S. soil.
How hard could it be to convince a jury to convict someone of terrorism charges who has apparently prepared further attacks on the United States?
That said, if this stands, does that mean that any crime against the US can now be classified as an act against the country, rendering all criminals enemy combatants? We have a war on drugs, does this mean that people bringing drugs over the border are causing harm to the US and should therefore be held indefinitly without trial?
Your guesses as to Kennedy's mindset are clearly better than most people's, but I think the Court is not going to be inclined to construe the AUMF a whit more broadly than it did in Hamdi, and the present op does a good job distinguishing Marri's facts from Hamdi's. And a lot of water has gone under the bridge since Hamdi; I don't think Breyer's vote to affirm is really in doubt.
Moreover, I think the panel is correct to suggest that Marri had a *constitutional* right to habeas that the MCA could not and did not touch, and I think Scalia might be sympathetic to a showing that the 1789-era writ covered the Marris of the world. Leaving aside the constitutional argument, as the panel did, I still find its interpretation of the MCA persuasive -- there was no real attempt to determine Massi's status.
I would think that even Roberts and Alito might be in play on this one, though perhaps I give them too much credit.
I'm not sure you will. Kazinski mis-stated the holding of Quirin. That case specifically permitted a habeas petition by enemy soldiers captured on US soil. It would be hard to deny such relief to al-Marri in light of that.
Because we have laws regarding terrorists -- like the Patriot Act provisions cited in the op -- and they don't provide for military detentions or trials.
And if you call what Bush did "following the rule of law," then you don't understand the meaning of the term. Really. You don't.
This panel should have stopped with its solid holding that the Patriot Act sets the rules for the detention of alien terrorists like al Masri and called it a day. Congress has the Article I power to set rules for Captures and did so in the Patriot Act for alien terrorists captured in the US. Under Sec. 236(A)(a) of the Patriot Act, the government has to either deport an alien terrorist like al Masri or try him as a criminal defendant. Section 236A)(b) also provides habeas jurisdiction to the federal courts to enforce subsection (a). This opinion could have been 5 pages long and granted al Masri the relief he sought on these grounds alone.
The problem is that the federal judiciary in general, not merely the Supreme Court, has recently abandoned many of its past constitutional law practices in favor of an outright power grab vs. a vs. BOTH other branches of the federal government. It does appear that the judicial brach is determined to provoke a separation of powers fight with both other branches.
Which means anything can happen.
BTW, the board software suddenly decided it would no longer accept my old registration, so I re-registered with one of my Hotmail addresses. I'm still the same Tom Holsinger. Or else I've somehow been banned without notice, which is doubtful - a software glitch is more likely.
So what does he do? Stroll by the military commission between the hours of 9:30 and 5:00 and submit his claim of innocence? The Fourth Circuit squarely addressed this argument:
How so?
Hm, no.
Your inability to post under your prior name is obviously Bush's fault.
As of the time you did your tally, I count 7 VC commenters who think the decision is clearly right, or at least very persuasive, and one who thinks it's clearly wrong. I see a few others who comment on related issues, such as what might cause the Supreme court to vote one way or another, without giving their opinion on the decision.
It doesn't exactly seem like an even match up between conservatives and liberals, and how do you know the political opinions of all those commenting? It seems like 7-1 the opinion (at that point) was towards this being a good decision, with little clear indication of who's a liberal and who's a conservative.
From that point on in our discussion, it looks like it looks like it gets more technical, with no obvious change in the balance of opinion, except that one more discussant declares himself or herself for the decision.
I count 8 commenters clearly in support.
1 clearly opposed.
I don't know who the liberals are and who the conservatives are, but is there really an 8-1 liberal-conservative split on VC (or are the liberals so much more motivated to opine on this issue that it looks like that?)
Oh, but Prof. Kerr does -- he knows us usual suspects when he sees us. Probably that's why he didn't address my 1st comment -- "Anderson, check ...."
9/11 wouldn't have happened if George Bush had been elected President.
Al-Marri has no worries, the military commission will come to him.
As for the Constitutions Suspension clause, the 4th seems to be trying to overrule the SC on that. Hamdan and Ex Parte Quirin dealt with that definitively.
And one other small matter, it would violate the Geneva Convention to try enemy combatants in civilian courts:
I can't imagine the Supreme Court is going to countance the 4th ignoring clear law, clear precedence, and the obligation of solemn treaties.
In that case, I'd agree it's Tories who support a reversal.
I was just poking fun at some of the more predictable commenters; many are indeed pretty thoughtful and independent. I don't know what the overall balance is, though.
Anderson,
Based on my initial skim of Section 412, I think of the Patriot Act argument as a bit like jurisdictional arguments: If you read the text, you might think that settles it, but then a majority of the Court seems to come up with a reading that takes a different view. In the case of the Patriot Act provision, it's not clear to me that it is meant to be the sole means of detention for terrorist suspects who are aliens. It an authority, but its impact on other authorities doesn't seem as clear as the majority makes it out to be.
Well, you might have a point. TomB did advocate that I be banned from here two months ago.
But I do beg forgiveness. TomB had asked about college dorm resident assistants:
and I replied:
And then described various awful things I did to them. But I got into law school anyway.
1. Majority distinguishes between Padilla and al-Marri on the grounds that the former actually had his foot touch Afghan soil.
That seems to me to be a rather silly distinction. Whether the sabotage was planned in Afghanistan, or Pakistan, or Germany (where much of the 9/11 planning occured) seems immaterial for the purposes of deciding whether the individual in question is in service of a foreign government or entity hostile to the US.
A hypothetical scenario illustrates the point. Suppose US were at war with country X. Country X agents, meeting secretly with an tratoruous American citizen in neutral coutry Y convince said citizen to travel back to the U.S. and commit sabotage. The citizen has never set foot in country X. Surely, it does not mean that if he is captured he cannot be held as a war criminal and tried by an appropriate military tribunal simply because he was clever enough to conspire with the foreign power in a neutral territory.
2. The second distinction majority makes is based on the fact that Padilla was in service to a foreign government (the Taliban), while al-Marri is simply allied to a terrorist non-governmental group (al Qaeda).
This too seems to me to be of little consequence. To begin with, Taliban was never a "government." It was not recognized by the US or other countries (save the Saudis, UAE, and Pakistan) or any international organization. They did not control all of Afghanistan (though they controlled most of it). Thus, it seems to me that they are at best a very successful armed group and not "government" in any legal sense of the word.
Furthermore, in many respects, Taliban and al Qaeda were quite interchangeable concepts in Afghanistan. Osama financed Taliban and Taliban provided safety for Osama. Additionally, much like al Qaeda, Taliban was a cross border phenomenon, spreading to parts of Pakistan's North West Fronier Province.
The question is then, what makes Taliban a "government" alliance with which makes a person a combatant, and which characteristic is absent in al Qaeda?
The opinion actually places members of terrorists organizations in a BETTER position than members of armed forces. While the latter group can be detained indefinately (as combatants, lawful or not), the former cannot be and must be put on trial or released. That seems to be a bizarre result.
Additionally, if one follows the opinion's logic, one would have to conclude that, for instance, Hezbollah fighters are non combatants because they are officially allied with the Lebanese government, no matter how many rockets they launch. According to the court, an individual who is actively engaged in fighting may not be a combatant, while one who is not fighting at all (but is a member or allied with armed forces of a "government") may be a combatant. With respect, that doesn't make a whole lot of sense.
Assuming that this is tongue-in-cheek, I'm still puzzled by the suggestion that the vague promise of a future administrative review — years into detention — could be a meaningful substitute for traditional habeas proceedings. Is that what you think, or do you simply think that an execution decision to incarcerate someone as an enemy combatant should get no judicial review?
Those familiar with the name "Bart DePalma" will pause in thought and wonder, when they see that *he* accepts the panel's reading of the Patriot Act:
Damn Anderson, it is not often that I see my own post before I even have the opportunity to post it!
Here is the rest of my post which you left out...
The Administration has not even allowed al-Marri access to a kangaroo court, and is under no apparent obligation to do so, under its own unique theory of the rule of law.
But he does it badly; a "prisoner of war" is not the same as an "enemy combatant." If it were, then we would be in gross violation of Geneva re: everyone at Gitmo, Bagram, etc.
As for Quirin and Hamdi, Kazinski's got some really, really good arguments based on those, but he's not willing to share them just yet.
Prof. Kerr and I can agree to disagree on the Section 412 issue. I think the panel's reading is the only one that makes any sense of the statute -- no indefinite detentions, we're going to pass a law against those, BUT the president can do it anyway on his own unreviewable say-so, if he feels like it?
I don't think that legislatures bother legislating under those conditions, not in free nations anyway. Regardless, the statute in question makes it much more difficult to read the AUMF as providing what the feds argue it does.
Once again, it has not been established that he IS a terrorist, only that the Bush Administration decided to accuse him. Second, that Military Commissions argument could logically apply to any crime or status that the government wanted to pursue. Are you willing to agree that it would be proper for the government to bust down your door, carry away your son/daughter/wife/mother/father, and have that person's fate solely in the hands of a military commission?
At any rate, as others have pointed out, al-Marri has been in custody for over five years now, and he has not been put before a military commission. And without the Sixth Amendment's guarantee of a speedy trial, why would the government convene one?
Kazinski, I'd like to see you respond to my point that your analysis simply begs the question -- you keep referring to al-Marri as an enemy combatant, when you have no idea whether that is true.
And a signing statement wouldn't affect how courts interpret a particuar piece of legislation.
So if this case is reversed, you can thank the democrats for first enabling the President and then doing nothing about it.
Scalia would surely disagree with you, right? You could try him for treason, criminal conspiracy, or any number of other offenses in criminal court. If he's captured on American soil by civil authorities, how does he magically come under military jurisdiction?
I think that language in Hamdi has less bite than Marty thinks it does. Marty sees it as being a sort of intent test that courts apply retroactively; I tend to think the court would be more cautious, reiterating the language rather than basing a decision on it. That's my best guess, at least.
Only those?
Bart: sorry to preempt you ... "Man Bites Dog" and all that.
Dr.Grishka -- why is being put on trial for your life, in the best judicial system in the world, so desirable a result for the terrorists?
To quote Colin Powell: "Isn't that what our system's all about?"
I was a little surprised by his conclusion, since I thought he was building to the suggestion that the particular facts here would leave the en banc circuit court and the Supreme Court less sympathetic to the government than one would otherwise suspect, and yet he didn't quite make the case. I am less steeped in this stuff than most people, but am inclined to agree with you that the argument he's making about that note is a thin reed if it depends on the language in Hamdi. But I am also reminded of the government's success in alienating Judge Luttig.
You cherry-pick statements out of context. Statutory habeas corpus is not constitutional habeas corpus. Statutes can be amended, and here were. This decision is based on statutory habeas corpus. Congress could abolish it retroactively and this ruling would go POOF!
Kazinski,
Unlawful combatants are NOT lawful prisoners of war and are not protected under the GC save insofar as its prohibitions on treatment of ALL prisoners apply (those which make no distinction between lawful and unlawful combatants - aka it's wrong to torture or starve them, deny medical treatment, etc.).
It is perfectly lawful under those GC protocols we ratified for us to shoot unlawful combatants on capture. But American law has, AFAIK, prohibited such for a century longer than any of the GC has been around. Insofar as enemy combatants are concerned, American law has (until a recent awful Supreme Court decision) given them far greater protection than under the GC protocols we have signed.
So the GC has no relevance to this discussion.
Is that really what you think we've been doing at Gitmo and Bagram? Giving "enemy combatants ... far greater protection than under the GC protocols"?
I must be misreading you; please explain.
Tyrone: I think Lederman's 2d post is indeed a little too subtle; the interesting part, to me, is that Marri was evidently removed from civilian custody so that he could be tortured.
Confederate soldiers captured by Union forces were held indefinitely, i.e., until hostilities were over (with some exceptions, such as the ones executed in retaliation for the Fort Pillow massacre). Confederate unlawful combatants captured by Union forces, in Missouri, a few who raided across the border from Canada and were captured, etc., were mostly executed after brief trials by military courts. The ones who weren't executed were most definitely held prisoner until hostilities were over.
There is ample precedent for holding captured unlawful combatants, as well as lawful combatants, prisoner while hostilities are in progress. It is contrary to plain common sense not to do so.
Being a textualist, I do think the actual language of the Patriot Act settles the issue. I do not see how al Masri's case falls outside the terms of that Act.
There is very little doubt that al Marsi fits within the Patriot Act's definition of an alien terrorist. The Executive does not claim that al Masri is something else in addition to being an alien terrorist. Rather, the President claims that he is an enemy combatant because he is an alien terrorist.
I considered the Government's correct distinction between criminal imprisonment and military protective detention of enemy combatants for the duration of hostilities. However, the Patriot Act provides for both criminal imprisonment and protective detention of the alien terrorist by the AG until he is deported and expressly limits that authority to the AG and his/her deputy.
The Patriot Act almost certainly trumps the President's Article II power in this case. The President has a general Article II power as CiC to make the determination of who is an enemy combatant and, contrary to the panel majority, the President certainly has the power to make the determination that members of non state groups are unlawful enemy combatants. (Lincoln did this during the Civil War and Article 4 of the Geneva Conventions recognizes members of partisan groups which do not adhere to a government as wartime combatants). However, Article I expressly grants Congress the specific power to enact rules for Captures. Express Article I powers and the statutes which were enacted under those powers trumps the President's general CiC power.
;-)
I don't think so. The majority draws its distinction based upon whether the person takes up arms in a combat zone, not simply whether they visited country X or country Y. The point is to draw a clear distinction between combatants (people who take up arms) and everyone else.
The allegation against Padilla was that he had actually taken up arms against U.S. forces in Afghanistan. Likewise, Ex Parte Quirin involved individuals who had "associated themselves with the military wing of a foreign government." The court contrasts this with Ex Parte Milligan, where the petitioner had conspired to do all sorts of bad things to the U.S., but had never taken up arms on the battlefield, and the Supreme Court relied on that very distinction in rendering its decision.
As we see in this case, the reason we stretch to fit people like al-Marri into the military justice system isn't because we think military tribunals are the best equipped to deal with these types of allegations; we do it because it allows us to dispense with certain inconveniences attendant to the civilian justice system, such as actually giving people a hearing. But no matter how you slice it, the allegations against the guy just don't fit within the definition of a combatant.
It's called "war".
The Fourth Circuit opinion is actually pretty narrow, and almost completely statutory. Al-Marri, a legal alien seized and held within the United States and the only alien held here as an "enemy combatant," presents a unique situation.
The court based its reasoning on a holding that the MCA's habeas-stripping provisions do not apply to him, that Hamdi's narrow interpretation applying the AUMF to the Afghan theater of war does not stretch to domestic spheres such as Peoria, and that Congress laid out its intent for detaining such alien terrorist suspects in the PATRIOT Act's limited provisions that exclude indefinite detention.
You seem to be just making this up. The court not only declares that al-Marri "has a right to habeas corpus protected by the Constitution’s Suspension Clause," it observes that "the Government seems to concede that al-Marri has a right to habeas corpus protected by the Suspension Clause." Congress could not make this habeas right disappear other than in accordance with the Suspension Clause.
Sorry, I meant your "alternative holding" argument was a bit subtle for my palate.
And btw, if extreme sensory deprivation is torture, as I recall reading, then why are we hearing about "abusive interrogation" of Marri, rather than his being (allegedly) tortured?
Bart, I was reassured to see your comment at Balkin's that, by welcoming the 4th Circuit's ruling, I was "cheering for the terrorist al-Marri" -- I thought you'd suffered a vitamin deficiency or somesuch. Glad you're feeling yourself.
Right. I see now that you're not looking to have a serious discussion. Why do you bother visiting a legal blog, anyway, when our permanent state of war enables the laws to be disregarded at will?
Of course they can, if they're sponsored by the military arm of a foreign government. See the court's discussion of Ex Parte Quirin.
They are still breathing. You have a very idealistic opinion of military history as well as law.
Note the absence of war crimes charges against World War Two German officers who executed captured British, French and American forces who crossed into German lines while wearing German uniforms. Those Allied prisoners were not given trials.
My uncle Virgil, as a First Army MP captain during the Battle of the Bulge, was given specific instructions on what to do with captured German commandoes caught in Allied uniforms. Those that higher headquarters didn't want for questioning were to be given real brief field courts and then executed. Uncle Virgil didn't capture any, having spent most of the Bulge evading capture himself, but he knew a major who did, and those dudes were shot right quick. After an almost as brief trial.
The GC protocols applicable to the U.S. permit immediate execution of captured unlawful combatants. American law doesn't, and our military regulations enacted since 1945 mandate more due process for captured enemy combatants than we gave to Skorzeny's commandoes in 1944.
I appreciate that you are a textualist. I don't think that necessarily answers this case, as the text of the Patiot Act does not state that its power is exclusive (as far as I can tell). But my point is actually a bit different; the Supreme Court seems to have a tendency to get creative in its statutory interpretation in GWOT cases, and I don't think we have a reason to believe that will change.
I wish you would expand on that. The creativity, to my mind, was on the side of deference to the executive, in Hamdi for ex; I think that, "following the election returns," the Court may feel less creative this time around.
Holsinger: They are still breathing.
Ah, then I did misunderstand you, evidently.
Odd. Perhaps some of the actions taken by various governments from 1935 to 1945 inspired a greater committment to due process to hopefully prevent their recurrence?
Nah...
Congress cannot use this Article I power to interfere with the President's ability to conduct hostilities anymore than it can use its budgetary power to prohibit the use of tanks or aircraft by American forces. There is a world of wiggle room in the Constitution here, as John Yoo pointed out in his Powers of War and Peace.
One point which few want to go near is the practice of retaliatory execution of lawful combatant POW's, practiced most notably by American forces during the Civil War in retaliation for the murder of hundreds of captured black Union soldiers by Nathan Bedford Forrest's troops at Fort Pillow. About a hundred newly captured Confederate POW's in that area were hung in retaliation, which caused the CSA to immediately prohibit the public murders of black Union POW's.
It would be entirely constitutional for President Bush to order the execution of captured unlawful combatants in retaliation for the enemy's torture and murder of captured American personnel, and Congress could not stop that using its Article I power.
As a pratical matter again, the Article I power Bart refers to is thoroughly constrained by political reality.
This is why war is a continuation of politics by other means, not a continuation of law by other means.
Lots of people here think law constrains war. Only force and politics constrain war. Law may dress that up a bit, but the limits here are really a political question.
I would love a chance to litigate against you. Regretably I can only represent family.
In the end, this takes us back to the issue of reconciling Quirin and Milligan. Frankly, I have a hard time understanding how this is not a repeat of Milligan. In other words, under what logic would Al-Marri be an "enemy combatant", but not Milligan?
If you believe Footnote 11, the government did not in fact try to distinguish Milligan on that ground. Rather, they apparently argued that Milligan is distinguishable because Milligan was a citizen, not just a legal alien. But isn't the Fourth Circuit right that this distinction does not apply to a Due Process case?
Anyway, agreed with Lazarus that "as John Yoo once said ..." is a punch line, not an argument.
You seem to be according Al Qaeda with the status of some benevolent NGO. Al Qaeda declared war on us. Congress delared war on them. We are entitled to apply the laws of war (not criminal law) on their combatants, both legal and illegal. That is what this administration is doing. If you are quoting ex Parte Quirin then you should read it. Specifically the holding that unlawful combatants have no right to habeas corpus. Al-Marri fits to a tee the Supreme Courts definition of an unlawful combatant. You seem to think their is some magical exemption for people that sneak into our country (whether citizens or not) in order to blow up civilians. They are conducting war against us, and they shall reap what they sow.
The 4th totally misses the distinction between combatant and civilian. Civilians do not enter a country with the purpose of attacking its innocent inhabitants.
While I can see the deciding vote in Justice Kennedy rewriting the actual law as he did in previous GWOT cases, I have a hard time seeing him rewriting the law in favor of either limiting habeas or the wartime detention of enemy combatants. His previous writings give me absolutely no confidence in this regard. I would not risk sending this issue to Kennedy.
Justice should seek an en banc review by the entire 4th Circuit to clean up the mess made by Judge Motz on various non Patriot Act issues. After that, the President should remand al Marri to the custody of the AG per the Patriot Act and deport him to Gitmo for trial by military commission.
I won't comment on the substance of the decision, but I don't think the comment about the commenters here, if true, is surprising at all. After all, it is the same as the court opinion itself - two liberal, Clinton appointees vote to strike down Bush policy, and the one conservative, Bush appointee votes to uphold it. Why would anyone think that our commenters would be any less partisan than the judges themselves?
"On the 21st day of the same month, he was placed on trial before a 'military commission,' convened at Indianapolis, by order of the said General, upon the following charges; preferred by Major Burnett, Judge Advocate of the Northwestern Military Department, namely:
1. 'Conspiracy against the Government of the United States;'
2. 'Affording aid and comfort to rebels against the authority of the United States;'
3. 'Inciting insurrection;'
4. 'Disloyal practices;' and
5. 'Violation of the laws of war.'
Under each of these charges there were various specifications. The substance of them was, joining and aiding, at different times, between October, 1863, and August, 1864, a secret society known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and duly constituted authorities of the United States; holding communication with the enemy; conspiring to seize munitions of war stored in the arsenals; to liberate prisoners of war, &c.; resisting the draft, &c.; . . . 'at a period of war and armed rebellion against the authority of the United States, at or near Indianapolis, [and various other places specified] in Indiana, a State within the military lines of the army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy.' These were amplified and stated with various circumstances."
I just don't get how people are distinguishing Milligan. Or maybe they are just ignoring Milligan.
a) JURISDICTION.—A military commission under this chapter
shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
That being said, the MCA so states:
No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
Alien - check
detained - check
determined to have been properly detained - BASIS OF THIS OPINION (see slip op. at 16).
Unfortunately, for those simply attacking the opinion without having even bothered to read the statute or the facts (cough cough Thomas H. cough), the holding is based upon, and dependant, on whether the al-Marri "has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Their interpretation of the act, which is certainly not unusual, is that "determined by the United States" does not mean, casually "asserted by the United States," but requires in the words of the court, an actual application of the CSRT process (See, e.g., MCA at 948(a), defining unlawful enemy combatant). In fact, it seems almost absurd to disagree with the court's reasoning from pages 17-20.
As to 21-24, while a textualist could disagree with the reasoning, anyone who supports the limited use of legislative history (ie - at least 7 of the 9 justices), would also find nothing unusual or even remotely contraversial in their statements. Their decision from pages 25 to 27, which explain that because he was sitting, rotting in a military prison since 2003, nowhere near a CSRT shows that he is not "awaiting" a determination is somewhat less persuasive, but at least moderatley understandable. BUT MORE TO THE POINT, IT IS DICTA.
The court then summarily rejects the "inherent authority" argument. That is an argument that was rejected by the Supreme Court in both Hamdi, and Hamdan, and as such, is binding upon the Fourth Circuit.
- Note, for the above reasons, its doubtful that the Fourth Circuit will reverse the case en banc, even if the case is likely to be overturned by the Supreme Court.
Getting to the Supreme Court -
Souter - will clearly vote to Affirm
Ginsberg - will clearly vote to Affirm
Stevens - will clearly vote to Affirm
Scalia - Unlike Kerr, I believe this vote to be POSSIBLY available, though I think he'll ultimately vote to reverse, since he will read the MCA textually, determine that the respondent is "awaiting" his determination, and find that the MCA 2006 reaches both statutory and constitutional habeas. But only by making all those findings can Scalia vote to reverse faithful to his decisions in Hamdan and Hamdi.
Thomas - will clearly vote to reverse
Breyer - Is a swing vote, but will likely vote to affirm on (const v stat hc) statutory interpretation grounds
Kennedy - I think is very much a swing vote. His concurrence is clearly what was aimed at by the MCA, but Kennedy believes in legislative history, and also in liberty - it is unclear that he'll want to answer the Suspension Clause questions that Scalia will in the way Scalia does, and will probably tack his vote on to Breyer (or vice versa, if he wants to moderate any statement Breyer makes)
Alito - Alito's dissent in Hamdan states that he'd uphold a habeas position if it is "established in compliance with domestic law." Given the circular reasoning he then provides, I think he'll vote to affirm - but might not on the statutory question that Breyer will likely follow.
Roberts - will likely vote to Reverse
The way I see it is this. Breyer, Alito, or Kennedy will write the majority opinion, stating that the MCA did not intend to apply to constitutional habeas rights, and therefore does not apply to Al-Marri. Ginsburg, Souter, and Stevens will write a concurring opinion showing a willingness to go further. Scalia or Roberts will write a dissenting opinion. Thomas will write a seperate dissenting opinion - I honestly think he'll be the ONLY person.
The reason I say this is because the plurality opinion in Hamdan (signed on to by Breyer and Kennedy), does not appear to make SENSE in the facts here, where someone lawfully held under the constitution was not found in anything remotely related to a battlefield.
"There is no bar to this Nation’s holding one of its own citizens as an enemy combatant . . . . such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict. . . .
The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.
It is a clearly established principle of the law of war that detention may last no longer than active hostilities. . . . If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. . . .
. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court’s repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen."
I just don't see Kennedy and Breyer, the two more liberterian members of the plurality, accepting the same reasoning in THIS case, with a resident of the United States holding the protections of the Constitution, captured literally "a resident of [a United States] captured in his home there."
Finally, I should note "the President ordered the military to seize and detain [Kahla al-Marri] him indefinitely as an enemy combatant," in June 2003, which is before the DTA or the MCA. Since Bush did that without ANY constitutional or statutory justification to a person legally residing at the time in the United States, he should be impeached and charged criminally (but what else is new, I must have BDS for even thinking that such an act would be criminal prior to the DTA act of 2005). I'd also point out that his detaining was CLEARLY illegal even AFTER the DTA act of 2005, since that act only applied to detainees held in Guatanamo Bay, Afghanistan, and Iraq. That meant that George W. Bush had personally been violating clearly established law from June 2003, and most ASSUREDLY from June 28, 2004 - until October 16, 2006.
There's a reason the historical distinction between combatant and civilian has not hinged on mind-reading. If you think about it, you may come to understand why.
I would suggest that you are mixing the proverbial apples and oranges.
It is pretty much settled law that Article I's express powers over foreign policy and the military trump the President's default general CIC powers. However, opponents of Presidential war making power have attempted to distort and rewrite express powers over the budget and regulating interstate commerce to allow Congress to command the movement of troops and direct the gathering of intelligence. The fact that express Article I powers are plenary does not grant Congress or the courts the license to rewrite and extend them to apply to situations for which they were never intended.
Thankfully, no. He's a staff attorney for a state court.
The distinction between extraterritorial aliens who are not entitled to the benefit of Habeas Corpus, on the one hand, and citizens and residents of the United States, who are, is a sound one with long precedent. Moreover, the Verdugo-Urquidez decision liberized the required residency from which might arguably exclude someone present solely for educational purposes to one which includes durable presences in the United States and substantial contacts, which Al-Marri clearly had.
Ex Parte Quirin permitted the United States to try a United States citizen by duly established military tribunal, perhaps with certain minimum due process safeguards, for violations of the law of war, upon conviction of which he could be detained and punished as an unlawful enemy combatant. However, this is a very different thing from simply declaring the individual to be a (lawful) enemy combatant and detaining the individual indefinitely without judicial review.
I disagree with the 4th Circuit's opinion that the United States can never hold a person (which a human being becomes upon sufficient presence and contacts with the United States under our Constitution) as a prisioner of war. I believe Quirin teaches that the Suspension clause means that a citizen or resident has the right to challenge the detention through a petition for writ of habeas corpus. If independent judicial review -- which can include an evidentiary hearing -- confirms that the individual is an enemy combatant, the detention is lawful, otherwise it is not. In holding evidentiary hearings, courts have leeway to craft standards, rules of evidence, and burdens of proof consistent with the purposes of the Suspension Clause and enabling statutes.
How familiar are you with Civil War legal history? Because we sure did hold lots of Confederate unlawful combatants (ranging from scouting officers out of uniform to border raiders to plain criminals pretending to be Confederates) prisoner, albeit for only terminally brief periods for many if not most of them. As the Court noted, Milligan's fate would have been quite different had he been captured with a smoking gun in his hand.
Bart,
Not. Note that I said, "interfere with the President's ability to conduct hostilities", and EXPRESSLY referenced retaliatory executions.
And I just love the ritual denunciations of John Yoo given the complete acceptance of his Powers of War and Peace argument that Congress's only ability to President Bush to cease operations in Iraq (the "conduct of hostilities") is the power to cut off funding.
These guys truly believe people buy their "if you can't refute him, DENOUNCE him!" reasoning. Because that's all they got and, if it didn't work, why that would be just TRAGIC! (sniff, sob).
All the Supreme Court has to find is that al Qaeda members can also be enemy combatants. Then the question of whether al Marri is a civilian or not becomes a matter of fact in dispute. At that point the case gets sent back to the District Court for some type of trial, because the record does not provide a basis for reaching any of the more interesting legal questions until the facts are established.
That's not so hypothetical at all. Those are very nearly the facts in both Milligan and Merryman.
Yoo's been refuted. Plenty. Some of us have been paying attention.
Al Qaeda declared war on us. Congress delared war on them..
A scruffy band of sociopaths does not "declare war," however grandiose they may be.
The majority opinion here has a number of flaws:
Add in the fact that the dissent is shorter and more precise -- not to mention Motz and Gregory are just about the most liberal judges on the Fourth Circuit, and you have a perfect tee-up for a reversal en banc that holds:
Al-Marri, in the other hand, arrived (as far as the record shows) and entered the country in a perfectly lawful way.
The Administration is seeking to mix-and-match various designations (unlawful, enemy, POW, detainee, etc.) with a single end in view: untrammeled executive authority. If al-Marri is a regular POW, then his conditions of confinement are inappropriate and unlawful. If he is an alleged spy or saboteur, he should be subject to the civilian (or possible military) system of justice. The Administration intends none of these things. It intends to keep al-Marri indefinitely on its own say-so with no recourse and no review. (According to the decision, nothing requires the government to convene any tribunal.)
Amongst a certain breed of patriot, such tyrannical powers are to be entrusted to 'wartime' leaders, even in the War against Terror of presumably permanent duration. These are the patriots of whom Franklin said "They who would give up an essential liberty for temporary security, deserve neither liberty or security."
As far as John Yoo's "scholarship", you'll recall that DoJ was forced to notionally repudiate it, although in practice I'm sure it's alive and well.
Jurisdiction. Both the 4th Circuit majority and the 4th Circuit dissent found jurisdiction. The majority construed the MCA not to apply to Al-Marri in furtherance of constitutional avoidance. The dissent held that the MCA was unconstitutional as applied in this case.
A close reading of the Boumedine opinion (the Guantanamo Bay detainee challenge to the MCA in the DC Circuit) had a majority that would have found the jurisdiction stripping provisions of the MCA unconstitutional in Al-Marri's case but legal in Boumedine due to the special status of Guantanamo Bay. The dissent in Boumedine found the MCA jurisdiction stripping provision invalid even in the Guantanamo Bay case. Ex Parte Quirin, as others have noted, also expressly held that habeas jurisdiction existed.
Habeas jurisdiction may very well be a territorial issue, at least for constitutional habeas. It is established beyond dispute that criminally convicted aliens in the U.S. have habeas rights, and Ex Parte Quirin established that even alien enemy soldiers in the U.S. intent upon harming Americans facing military commissions have habeas rights (although they lost on the merits). FWIW, U.S. soldiers also have habeas rights when subjected to military justice -- that was their only path to SCOTUS until 1983.
It doesn't help the government in the jurisdictional argument that the Justice Department has repeatedly argued in war on terrorism litigation that the Military Commissions Act of 2006 was not intended by Congress to be a suspension of the writ of habeas corpus. Their argument has been that the people seeking it didn't have habeas corpus rights in the first place when they were battlefield combatants held outside the territorial U.S.
To answer Kazinski's point, made either seriously or sarcastically (hard to tell), the U.S. certainly didn't do itself any favors in the Al-Marri case by not holding a CSRT or convening a military commission in his case for four straight years, in trying to show that Al-Marri was "awaiting" CSRT review, and hence had an alternative to habeas corpus through a U.S. District Court.
The Merits Too much is being made of the nation/non-nation distinction in commentary, which doesn't in my read, seem to be the crux of the distinction being made by the 4th Circuit in Al-Marri's case. The crux of the distinction seems instead to be between people who are trained in arms and have carried them in a military capacity at some point (Hamdi, Padilla, Quirin); and people who have not (Milligan, Al-Marri). The Confederate States of America was far more like the Taliban than Al-Queda, and yet Milligan was still a civilian when affiliating with the CSA cause. The Milligan example analyzed at length by the 4th Circuit majority in the Al-Marri case suggests that the state/non-state distinction is not that important in their holding. What the Al-Marri declaration lacked was any allegation that he had taken up arms. The Padilla declaration, in contast did allege that Padilla had taken up arms in Afghanistan, and hence it wasn't hard to say that Padilla was a combatant. There wasn't a searching examination of the factual merits in this case -- the 4th Circuit took the declaration at face value but the declaration failed to meet the "So what?" test.
It is also true that SCOTUS has clearly stated that mere indefinite enemy combatant detention is not permitted for interrogation purposes, which were quite expressly the purposes espoused by the Government in the Al-Marri case (at least partially).
Review The en banc 4th Circuit review process, which the government has requested, seems more favorable than SCOTUS for the government. This is a more conservative bunch, and unlike SCOTUS is bound by the Padilla case 4th Circuit decision. IIRC, Al-Marri lost in the trial court, and the easiest way for the 4th Circuit to affirm would be to say that the 3 person panel used the wrong standard of review and that under a more lenient abuse of discretion standard that trial court's determination that the declaration was sufficient to make Al-Marri an enemy combatant on the merits should stand.
I think Al-Marri gets Souter, Stevens, Ginberg, and Beyer in SCOTUS to side with him. Skepticism about Beyer's vote her is misplaced given the evolving understanding of the situation and Al-Marri's uniquely situated case.
Scalia and Kennedy probably both dismiss the jurisdiction stripping arguments of the MCA in Al-Marri's case.
The 4th Circuit majority opinion, IMHO, reads just like a typical Kennedy opinion (and not accidentially either I suspect). Kennedy, while not so blatant as O'Connor about it thinks about the stakes in a decision, not just the law. He knows that this is a one detainee loss for the government on a policy it has essentially abandoned except on an expertiment basis in this very case v. very big stakes in civil liberties for almost everybody. The 4th Circuit has offerred a way to protect decent ordinary Americans while putting scary bad guys in the brig which Kennedy may find reassuring, and which even retains Padilla in the 4th Circuit and Boumedine in the D.C. Circuit as good law.
Thomas is a reliable vote for the administration. Roberts seems most inclined of the other justices to find the MCA jurisdiction stripping argument plausible. Figuring Alito and Scalia on the merits is hard but one has to count them likely to give the administration the benefit of the doubt and Scalia has made a strong distinction between aliens and citizens that other justices have not.
Do I read your prognosis correctly -- that you think the Supreme Court would reverse on the merits, but not on the threshold question of the MCA stripping habeas jurisdiction in this case?
Milligan was not a saboteur. He did not use criminal means beyond arguable criminal sedition under the laws of the day Certainly he took no active role - his alleged offenses were only words, so he was not a "combatant". Merryman I'm not familiar with.
Use of the loaded words, "held as a war criminal" and "tried by an appropriate military tribunal" do not at all apply to the historic practice of holding ALL enemy combatant captives for the duration of hostilities. It is quite possible to be a "war criminal" and not a combatant - Albert Speer was a civilian at all times during World War Two.
Likewise there is a big difference between merely holding someone captive and trying them on charges.
The issue here is really whether UNLAWFUL enemy alien combatants will be afforded greater procedural rights than LAWFUL enemy alien combatants.
We have held lawful enemy alien combatants and, in the Civil War, lawful CITIZEN enemy combatants, captive for the duration of hostilies in every conflict we've ever waged in the entire history of the United States. Furthermore, AFAIK, there have never, ever, been any legal challenges to the propriety of doing so.
There have been legal challenges in the past few years to holding of unlawful combatants prisoner for the duration, which includes citizens Joe Padilla and (I think) Hamdan, but the latter was a special case as he had dual citizenship and hadn't resided here since he was two years old. So Padilla is the only real case of holding a citizen enemy combatant captive.
But Al-Marri is not a citizen. His case is much more similar to that of Quirin - the World War Two German saboteurs who landed on Long Island (only one was an American citizen - the rest were German nationals). The Quirin group did not challenge the propriety of holding them for the duration of hostilities - they appealed their death sentences, and would have been only too happy to sit in prison for the rest of their lives.
So what's wrong with this picture? Why are we even arguing about the propriety of holding Al-Marri captive? ?Does anyone contend this war is over? The government of the country Al-Marri holds citizenship in hasn't asked to have him back.
The majority explicitly fails to recognize the AUMF by citing to the constitutional avoidance doctrine. That is the avoidance to which I refer, as should be obvious if you bothered to read the opinion.
The crux of the distinction seems instead to be between people who are trained in arms and have carried them in a military capacity at some point
The point here is twofold: the guy was not a citizen entitled to the Due Process rights of a citizen and he reentered the territory for the express purpose of committing a terrorist act for which he had received training and financing; certainly a basis for the revocation of his visa and any rights he was afforded. As far as he saw it -- and as far as the organization he affiliated with saw it, he was reentering what he considered the battle-zone: American soil. So claiming that he had never borne arms on a battlefield is sophistry worthy of the late Richard Rorty; he never carried out an attack because we nabbed him first.
the U.S. certainly didn't do itself any favors in the Al-Marri case by not holding a CSRT or convening a military commission in his case for four straight years, in trying to show that Al-Marri was "awaiting" CSRT review, and hence had an alternative to habeas corpus through a U.S. District Court.
The Government is not on trial. Nor do we presume the Government has bad motives. Al-Marri refused to participate in his evidentiary process so he could bring this lawsuit instead.
ATRGeek,
I'm still waiting for someone who think the Fourth Circuit got it wrong (or is likely to be reversed) to explain how they would distinguish Milligan.
Read the dissent.