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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:
[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").

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."
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.

  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."

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.
  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.

  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.
Andrew J. Lazarus (mail):
If this decision is reversed, is there anything that could stop President Bush from declaring at whim my resident-alien brother-in-law, or any other alien, an enemy combatant and hiding him incommunicado for life? (OK, my b-i-l died of natural causes last year, but the point stands.)
6.11.2007 4:50pm
Mark Field (mail):
Let me be the first to hope your prediction is wrong. For what reason(s) do you believe it will be reversed?
6.11.2007 4:52pm
Mark Field (mail):
Sorry, that last question was too vague. Can you give us some more detail regarding the application of the AUMF (which one?) and why you think it authorizes such a detention?
6.11.2007 4:53pm
Anderson (mail) (www):
I refer Prof. Kerr to the opinion's discussion of the Patriot Act, which apparently provided for "terrorist aliens" such as Al-Marri is accused of being, and held they were *not* subject to indefinite detention. See pp. 65-68 of the slip op. At p. 62, they explain that the Patriot Act's specific treatment of terrorist aliens would take precedence over the AUMF.

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.)
6.11.2007 4:57pm
J. F. Thomas (mail):
Why is this decision stunning? The constitution clearly states that habeas can only be suspended in times of rebellion or invasion. Neither of those circumstances exist at the present time. It would be stunning if the court upheld the president's extraordinary claim.
6.11.2007 4:58pm
itshissong:
Marty Lederman has some interesting preliminary thoughts about the decision over at Balkinization
6.11.2007 4:58pm
Zathras (mail):
I'll second the hope for an affirmance.

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.
6.11.2007 5:00pm
Martin Ammorgan (mail):
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

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.
6.11.2007 5:05pm
DJR:
Orin,

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?
6.11.2007 5:05pm
Steve H (mail):
Orin, if the AUMF is interpreted to authorize the detention, wouldn't al- Marri still have a strong Fourth/Fifth Amendment claim?

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.)
6.11.2007 5:05pm
blindgambit:
I tend to think if reversal is coming it'll be from the Supremes, not the whole circuit. No court likes to en banc cases like this, that will produce multiple lengthy opinions and grind the court to a halt.

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.
6.11.2007 5:06pm
Anderson (mail) (www):
I think we see the Hamdi Scalia here; the question falls pretty squarely within the traditional realm of habeas. If he voted to reverse, I think he would strive to do it on the jurisdictional argument.
6.11.2007 5:15pm
Erasmus (mail):
Too bad the democratic congress is too cowardly to revoke the AUMF.
6.11.2007 5:23pm
Anderson (mail) (www):
Too bad the democratic congress is too cowardly to revoke the AUMF.

(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.
6.11.2007 5:25pm
Kazinski:
This decision is just stunningly bad in that ignores clear intent of the law and unambiguous rulings by the Supreme Court (see Hamdi and Ex. Parte Quirin). This case, and the military case from last week do point out that the adminstration, and DOD, need to clearly make the distinction between "enemy combatants" and "illegal enemy combatants". The 4th Circuit has it right in one way, Al-Marri is not a enemy combatant because he was not caught on the battlefield, he is an "illegal enemy commbatant" because he was plotting acts of sabotage in civilian areas. Whatever criminal law violations he may or may not have committed are irrelevent, because he has violated the laws of war. As an illegal enemy combatant he is entitled to neither a civilian trial, nor is he entitiled to habeas protection.

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.
6.11.2007 5:29pm
Steve H (mail):
But Kazinski, you've missed a major point when you say that al-Marri "was plotting acts of sabotage in civilian areas."

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?
6.11.2007 5:32pm
Steve:
Well, I'm with Kazinski on one thing: I'd love to see a definitive statement on whether our jurisprudence stands by Ex Parte Quirin after all these years!
6.11.2007 5:32pm
Waldensian (mail):

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.”

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?
6.11.2007 5:33pm
Anderson (mail) (www):
ignores clear intent of the law

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?
6.11.2007 5:34pm
Martin Ammorgan (mail):
"because he was plotting acts of sabotage in civilian areas"

And you know this how?
6.11.2007 5:35pm
OrinKerr:
So to summarize the comment thread so far: the liberal VC commenters think this decision is plainly right, and the conservative VC commenters think it is plainly wrong. Well, at least we're all playing to type.

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.
6.11.2007 5:41pm
Steve H (mail):
Orin, regarding your guesses, I don't think it would be enough for Kennedy, Roberts, Alito, Thomas (or Breyer) to rule that the AUMF authorized the detention. They would also have to hold that the Fifth Amendment authorized the detention as well.

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?
6.11.2007 5:46pm
Kazinski:
Steve H
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.
6.11.2007 5:48pm
Zathras (mail):
Orin,

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.
6.11.2007 5:50pm
18 USC 1030 (mail):
This must be affirmed. I don't see how an alleged suspect of an alleged crime can be held without a trial indefinitly. This doesn't make any sense. What did he do "in preparation of terrorist acts?" If these actions were so hostile to force the president to classify him as an enemy combatant, wouldn't the actions warrant a conviction in a criminal trial?

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?
6.11.2007 5:50pm
Anderson (mail) (www):
Prof. K, please see comment # 4 in this thread (mine!), which I think goes beyond mere playing to type.

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.
6.11.2007 5:52pm
Mark Field (mail):

I'd love to see a definitive statement on whether our jurisprudence stands by Ex Parte Quirin after all these years!


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.
6.11.2007 5:52pm
Anderson (mail) (www):
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?

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.
6.11.2007 5:54pm
Anderson (mail) (www):
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:

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.
6.11.2007 5:59pm
Thomas_Holsinger:
This ruling is expressly based on statutory habeas corpus, and definitely seems to defy the recent statute on the subject. I agree with Professor Kerr that, applying normal rules of constitutional jurisprudence, it would not stand.

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.
6.11.2007 6:02pm
Steve:
The MCA and Ex Parte Quirin both give Al-Marri and avenue to prove his innocence: a trial before a military commission.

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:

The Government asserts, however, that Congress has provided al-Marri a constitutionally adequate habeas substitute through the DTA and MCA scheme -- an administrative determination by a CSRT followed by limited review of the CSRT’s decision in the D.C. Circuit. Since al-Marri has never been afforded a CSRT and neither the DTA, the MCA, nor any other statute, regulation, or policy guarantees that he be granted one, it is not immediately apparent how this statutory arrangement could provide al-Marri a substitute remedy. Al-Marri has also raised substantial questions as to whether this statutory arrangement – were it available to him -- would be constitutionally adequate. Cf. Boumediene v. Bush, 476 F.3d 981, 1004-07 (D.C. Cir. 2007) (Rogers, J., dissenting) (stating that a CSRT followed by limited D.C. Circuit review is not an adequate habeas substitute), cert. denied, 127 S. Ct. 1478 (2007).
6.11.2007 6:04pm
Anderson (mail) (www):
This ruling is expressly based on statutory habeas corpus, and definitely seems to defy the recent statute on the subject.

How so?
6.11.2007 6:07pm
Steve:
This ruling is expressly based on statutory habeas corpus, and definitely seems to defy the recent statute on the subject.

Hm, no.

As an alien captured and detained within the United States, he has a right to habeas corpus protected by the Constitution’s Suspension Clause. See Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (“All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States.”).
6.11.2007 6:08pm
Dave N (mail):
Tom,

Your inability to post under your prior name is obviously Bush's fault.
6.11.2007 6:13pm
Guest J:
Prof. Kerr:

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?)
6.11.2007 6:16pm
Anderson (mail) (www):
I don't know who the liberals are and who the conservatives are

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 ...."
6.11.2007 6:21pm
Thomas_Holsinger:
Dave N.,

9/11 wouldn't have happened if George Bush had been elected President.
6.11.2007 6:23pm
Kazinski:
Steve:
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:

ARTICLE 102
A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.


I can't imagine the Supreme Court is going to countance the 4th ignoring clear law, clear precedence, and the obligation of solemn treaties.
6.11.2007 6:26pm
Martin Ammorgan (mail):
I'm conservative and I agree with the majority. So I think Whigs (Parliament is supreme) vs. Tories (divine right of kings) is an older categorization that really gets to the heart of the issues here.

In that case, I'd agree it's Tories who support a reversal.
6.11.2007 6:27pm
Tyrone Slothrop (mail) (www):
Based on note 16 of the decision, Marty Lederman opines that "it is very unlikely that the government will prevail on appeal in this case—because not only wasn't there any authorized reason for the transfer of al-Marri from criminal to military detention, but in fact the manifest actual reason for transfer was fundamentally illegitimate, unauthorized by Congress, and already proscribed by the Supreme Court." I'd be interested to see Prof. Kerr's thoughts on this point.
6.11.2007 6:30pm
OrinKerr:
Guest J,

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.
6.11.2007 6:32pm
OrinKerr:
Oh, and Anderson specifically, thanks for your thoughtful comments, as always....
6.11.2007 6:33pm
Thomas_Holsinger:
Dave N.,

Well, you might have a point. TomB did advocate that I be banned from here two months ago.

BAN TOM HOLSINGER! BAN TOM HOLSINGER!!!

But I do beg forgiveness. TomB had asked about college dorm resident assistants:

What, exactly, happens on campus that turns these law-abiding men into crazed lunatics?

and I replied:

Well, in the case of my RA's, it was me.

And then described various awful things I did to them. But I got into law school anyway.
6.11.2007 6:34pm
DrGrishka (mail):
The distinctions raised in the decision seem to be quite weak.

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.
6.11.2007 6:34pm
Tyrone Slothrop (mail) (www):
Kazinski: "Al-Marri has no worries, the military commission will come to him."

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?
6.11.2007 6:34pm
Bart (mail):
Anderson (mail) (www):

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:


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.


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...


However, rather than leaving well enough alone, Judge Motz could not resist doing her impression of the 9th Circuit's Judge Reinhart and spent sixty pages misrepresenting and rewriting both the MCA and the law of war with which she disagreed. I will probably have some fun after work shredding this judge's specious reasoning as to the MCA and what constitutes a lawful and unlawful enemy combatant and a civilian.

There is also an interesting hypothetical of whether the Government can simply deport al Masri straight to Gitmo or to a third country, re-capture him and send him to Gitmo. If al Masri fights deportation, the AG can keep holding him until he no longer poses a danger, which is not much different than what the military is doing by detaining him as an unlawful enemy combatant.

But, for now, I will limit myself to what the panel should have - the Patriot Act.
6.11.2007 6:34pm
Andrew J. Lazarus (mail):
Somehow Kazinski missed the very next article of the Conventions.
ARTICLE 103. Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months. [my emphasis]
Why would Art. 102 apply but not 103? Inquiring minds want to know.

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.
6.11.2007 6:34pm
Anderson (mail) (www):
Oh, my god: Kazinski is trying to rely on Geneva?

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.
6.11.2007 6:37pm
Steve H (mail):
Kazinski, your argument that Military Commissions are "good enough for terrorists" proves too much.

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.
6.11.2007 6:38pm
Erasmus (mail):
Anderson, the President of course could veto it, but I don't think the democrats should be afraid to limit the President's power because they're afraid he will veto it. Don't you?

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.
6.11.2007 6:39pm
Steve:
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.

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?
6.11.2007 6:40pm
OrinKerr:
Tyrone,

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.
6.11.2007 6:40pm
Anderson (mail) (www):
Prof. Kerr: Oh, and Anderson specifically, thanks for your thoughtful comments, as always....

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?"
6.11.2007 6:41pm
DrGrishka (mail):
Steve- "If he's captured on American soil by civil authorities, how does he magically come under military jurisdiction." Under Ex Parte Quirin, it seems so. But in any event, the majority seems to concede that if in my hypothetical conspiracy occured in the belligerent country X, then the citizen could be held in military custody. (citing Padilla). I fail to see why the same rule would not apply if the consipracy was hatched in coutry Y.
6.11.2007 6:44pm
DrGrishka (mail):
Anderson-- Because detention of combatants is not always about punishing. It may be just about incapacitation and access to information.
6.11.2007 6:46pm
Tyrone Slothrop (mail) (www):
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.

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.
6.11.2007 6:48pm
Thomas_Holsinger:
Steve,

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.
6.11.2007 6:49pm
Anderson (mail) (www):
Thomas/Tom H.: 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.

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.
6.11.2007 6:54pm
Thomas_Holsinger:
Steve,

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.
6.11.2007 6:59pm
Bart (mail):
OrinKerr:


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.


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.
6.11.2007 7:01pm
M. Lederman (mail):
Anderson: Was I really too subtle? I tried to leave a clue in the title: "It's About Abusive Interrogation!" Should I have used more explanation marks?

;-)
6.11.2007 7:02pm
Steve:
But in any event, the majority seems to concede that if in my hypothetical conspiracy occured in the belligerent country X, then the citizen could be held in military custody.

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.
6.11.2007 7:02pm
Thomas_Holsinger:
Steve, you asked:

If he's captured on American soil by civil authorities, how does he magically come under military jurisdiction?

It's called "war".
6.11.2007 7:02pm
Just an Observer:
According to SCOTUSblog, the first reaction of the administration will be to seek en banc reconsideration in the Fourth Circuit. Since DOJ famously avoided Supreme Court review in Padilla, why should this case be different?

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.
6.11.2007 7:03pm
Steve:
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!

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.
6.11.2007 7:06pm
DrGrishka (mail):
Steve, but that too makes no sense. Under that theory, a spy (whose very existence is based on NOT taking up arms and blending into the population) cannot be tried by a military court. And that is flatly incosistent with prior precedent and international practice.
6.11.2007 7:08pm
Anderson (mail) (www):
Lederman: Anderson: Was I really too subtle?

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.
6.11.2007 7:08pm
Steve:
It's called "war".

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?
6.11.2007 7:08pm
Steve:
Under that theory, a spy (whose very existence is based on NOT taking up arms and blending into the population) cannot be tried by a military court.

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.
6.11.2007 7:12pm
Thomas_Holsinger:
Anderson, you asked:

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"?

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.
6.11.2007 7:12pm
OrinKerr:
Bart,

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.
6.11.2007 7:14pm
Anderson (mail) (www):
OK: the Supreme Court seems to have a tendency to get creative in its statutory interpretation in GWOT cases

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.
6.11.2007 7:19pm
Martin Ammorgan (mail):
our military regulations enacted since 1945 mandate more due process

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...
6.11.2007 7:21pm
Thomas_Holsinger:
Bart is correct here, within limits:

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.

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.
6.11.2007 7:28pm
Thomas_Holsinger:
Steve,

I would love a chance to litigate against you. Regretably I can only represent family.
6.11.2007 7:30pm
ATRGeek:
I am also puzzled by Orin's prediction.

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?
6.11.2007 7:30pm
Andrew J. Lazarus (mail):
There is a world of wiggle room in the Constitution here, as John Yoo pointed out in his Powers of War and Peace.
That's a little like relying on what Hitler pointed out about European History in his Mein Kampf. The item in question is evidence of overreach, not a neutral evaluation. The Yoo theory is that the President has a double-oh-card that enables him to disregard laws at whim. Frat boys like James Bond movies—heck, so do I—but they aren't legal analysis.
6.11.2007 7:36pm
Anderson (mail) (www):
Is that Judge Holsinger?

Anyway, agreed with Lazarus that "as John Yoo once said ..." is a punch line, not an argument.
6.11.2007 7:39pm
Kazinski:
Steve:
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.
6.11.2007 7:41pm
Bart (mail):
OrinKerr:


Bart, 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.


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.
6.11.2007 7:42pm
A.S.:
So to summarize the comment thread so far: the liberal VC commenters think this decision is plainly right, and the conservative VC commenters think it is plainly wrong. Well, at least we're all playing to type.

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?
6.11.2007 7:43pm
ATRGeek:
For anyone who hasn't already, I urge you to read the facts in Ex parte Milligan. Here is the upshot:

"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.
6.11.2007 7:46pm
Justin (mail):
First of all, I just read the actual text of the MCA, and my god, is that an awful, horribly written piece of graffiti unto our constitution. To note:

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.
6.11.2007 7:47pm
Steve:
The 4th totally misses the distinction between combatant and civilian. Civilians do not enter a country with the purpose of attacking its innocent inhabitants.

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.
6.11.2007 7:51pm
Bart (mail):
Thomas_Holsinger:


Bart is correct here, within limits:

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.

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.


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.
6.11.2007 7:54pm
Justin (mail):
"Is that Judge Holsinger?"

Thankfully, no. He's a staff attorney for a state court.
6.11.2007 7:55pm
ReaderY:
I agree that habeas corpus lies with Al-Marri unless and until Congress acts to suspend it.

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.
6.11.2007 8:13pm
Thomas_Holsinger:
Justin,

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,

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.

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).
6.11.2007 8:27pm
Howard Gilbert (mail):
A civilian in the US is entitled to Due Process. Fine, but this decision is based on a finding of law. There was no trial and no facts were established. This decision defines al Marri as a civilian because this judge decided that only Taliban fighters in Afghanistan can be enemy combatants and that any al Qaeda fighter is necessarily a civilian. Since the government only claimed that al Marri is an al Qaeda operator, he is by definition a civilian under this theory.

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.
6.11.2007 8:36pm
Mark Field (mail):

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.


That's not so hypothetical at all. Those are very nearly the facts in both Milligan and Merryman.
6.11.2007 8:43pm
Anderson (mail) (www):
These guys truly believe people buy their "if you can't refute him, DENOUNCE him!" reasoning.

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.
6.11.2007 8:45pm
Common Sense (mail):
Not only is Professor Kerr's prediction plausible, it will likely prove true.

The majority opinion here has a number of flaws:


1. It treats a resident alien -- who left the country to receive terrorist training and financing and reentered the United States for the express purpose of carrying out an attack here -- as a citizen, by misconstruing the laws of war.
2. The majority opinion limits its application to those entitled to Due Process protections under the Fifth Amendment. (See point 1).
3. The majority opinion pretends the AUMF does not exist by inverting the constitutional avoidance doctrine.
4. As the dissent points out -- concisely, the majority opinion distorts clearly applicable SCOTUS precedent.


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:


1. A resident alien is not a citizen.
2. Aliens do not have the same constitutional rights as citizens.
3. That this alien reentered the country to attack it is significant.
4. SCOTUS is the court of last resort in our legal system and its precedent must be respected.
5. Congress passed the AUMF and it applies to the facts of this case.
6.11.2007 8:47pm
Andrew J. Lazarus (mail):
It was quite obvious that the Quirin defendants entered (or, with respect to some, re-entered) the USA as part of the German war effort. AFAIK, none of them made any attempt to deny being members of the German armed forces who arrived here by U-Boat.

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.
6.11.2007 9:11pm
ohwilleke:
A few observations:

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.
6.11.2007 9:13pm
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.
6.11.2007 9:19pm
Just an Observer:
Orin,

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?
6.11.2007 9:24pm
Thomas_Holsinger:
Mark Field,

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.
6.11.2007 9:25pm
Common Sense (mail):
Andrew Oh,

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.
6.11.2007 9:26pm
Andrew J. Lazarus (mail):
The difference between Thomas Paine's Common Sense and Volokh's Common Sense is illustrative. On Common Sense (Volokh)'s view, our entire criminal court system is a waste, as the claims of the government are to be accepted without question. There has never been a finding in any impartial location that al-Marri intended to commit sabotage. (Indeed, I don't believe there has been any serious public enumeration of the evidence in favor of this claim: evidence would spoil the "We Say So" theory of detention without trial.)

Incidentally, I'd appreciate CSV's giving me a citation to back up his idea that non-citizen resident aliens may be imprisoned without due process. I rather doubt if that's the case.
6.11.2007 9:46pm
Common Sense (mail):
Andrew Lazarus,

I'd like some support for the proposition that the determinant as to whether you can detain indefinitely an enemy belligerent during a time of war is "whether the student visa agency revoked his student visa prior to him being caught in the basement lab about to insert a fuse into a stick of dynamite." That's what the Fourth Circuit opinion reduces to; and it is nonsense.
6.11.2007 9:54pm
ATRGeek:
First, I see that Holsinger plans to distinguish Milligan by just lying about the facts, despite the fact I already posted them for all to see. To review, among other things Milligan was convicted by a military commission of plotting to steal weapons from a Union arsenal and invading a Union POW camp. That is a little bit more than mere "sedition".

As for the dissent, it claims that "Milligan did not associate himself with a rebellious State with which the United States was at war." The dissent then argues that "al-Marri associated himself with and became an agent of al Qaeda, the organization targeted by the AUMF and the enemy with which the United States is at war."

Of course, one could note that the 2001 AUMF is not a formal declaration of war, and that it did not actually mention al Qaeda. But the more fundamental issue is that al-Marri's association with al Qaeda is not distinct from Milligan's association with the Order of American Knights/Sons of Liberty.

Note that the Civil War was not a declared war either: on April 15, 1861, Lincoln simply declared an insurrection and called out the militia. So, by participating in that insurrection, Milligan was just as much subject to Lincoln's declaration as al-Marri was subject to the 2001 AUMF. Hence, that cannot be the distinction.
6.11.2007 9:59pm
ohwilleke:

Why are we even arguing about the propriety of holding Al-Marri captive? Does anyone contend this war is over?


Because, like Milligan, and unlike the Quirin sabateurs, Al-Marri is not, is not accused of being, and never has been an armed combatant. As the opinion notes "the Government has never alleged that he is a member of any nation's military, has fought alongside any nation's armed forces, or has borne arms against the United States anywhere in the world. (emphasis added). He is merely alleged to have "prepar[ed] for acts of international terrorism." The analysis is extended from p. 39-51. Notably, Milligan was allegedly preparing to engage in hostile acts against U.S. forces as well.

The 4th Circuit majority compares Al-Marri to the Oklahoma City bomber and the surviving conspirator of the 9-11 attacks who were not subjected to military authority. He was facing fraud charges in Illinois and in jail on the eve of a motion to suppress when detained militarily.

In short, the 4th Circuit holds that thinking about engaging in hostilities against the U.S. in the future and actually engaging in them at the time of capture or before, are two different things.

Unlike "enemy aliens" (i.e. civilian citizens of countries with whom we are aat war), alien civilians who owe allegiance to our allies (like Qatar) aren't subject to summary indefinite imprisonment.
6.11.2007 10:01pm
Waldensian (mail):

I was just poking fun at some of the more predictable commenters; many are indeed pretty thoughtful and independent.

Dammit, I think I have been insulted. But I'm just not sure! Who is in? Who is out?!? This is REAL torture.
6.11.2007 10:02pm
Justin (mail):
"Justin,

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."

For present matters, let's assume not at all. I was, however, citing word for word the plurality decision in Hamdan and the decision here, which presumably would hold significant weight, if only to Kennedy and Breter, should the Supreme Court review the merits.
6.11.2007 10:06pm
Mark Field (mail):

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.


No, in Quirin they challenged the use of military commissions to try them. The challenge occurred before sentence, indeed before the trial ended.


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.


Milligan didn't actually sabotage anything, but he was accused of conspiring to do so. Quoting from the Syllabus:

"Lamdin P. Milligan, a citizen of the United States, and a resident and citizen of the State of Indiana, was arrested on the 5th day of October, 1864, at his home in the said State, by the order of Brevet Major-General Hovey, military commandant of the District of Indiana, and by the same authority confined in a military prison at or near Indianapolis, the capital of the State. 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.; . . ."

Merryman was accused of cutting rail lines and telegraph lines in order to prevent the passage of US troops through Maryland.
6.11.2007 10:06pm
Common Sense (mail):
Unlike "enemy aliens" (i.e. civilian citizens of countries with whom we are aat war),

It need not be a country. It can be an organization, like the Confederacy. Or al Qadea.
6.11.2007 10:10pm
ReaderY:
The United States claims facts which I believe would, if true, establish Al-Marri as an enemy combatant. If he in fact agreed to undetake a mission under orders from Al Qaeda, he is a member of their forces, operating under their direction and control, and it d9oes not matter whether he served on the front line or in the reserves, or whether he saw combat or not when captured.

Is what the United States says true? The judiciary doesn't have to take the government's word for it. Al-Marri would seem to be entitled to some sort of hearing -- possibly a secret hearing since it is no crime to be a soldier and a habeas corpus hearing is not the same thing as a trial -- at which the government would need to produce some sort of evidence to back their claims. But if they can prove what they say, whatever the standard of proof may be, the detention would appear lawful.
6.11.2007 10:16pm
FantasiaWHT:
*has not read through the responses*

How can a member of a group who has declared war on our country be considered a civilian?
6.11.2007 10:17pm
Andrew J. Lazarus (mail):
Common Sense, we are still waiting for some evidence that al-Marri was intending to put dynamite somewhere. And why stop there? Surely detention of citizens who might be enemy belligerents (after all, for this, too, we have no impartial finding) is just as necessary: citizens can buy dynamite, too. Since it's well-settled that the Fourth and Fifth Amendments apply to resident aliens as much as they do to citizens (heck, do you think a foreign tourist can be sentenced to prison without due process!?), your argument pretty much ends American liberties as we've known them.

You do show the mix-and-match issue quite well, though. Al-Marri's conditions of confinement are not appropriate for a lawful enemy combatant not for an enemy alien civilian (which, of course, as a Qatari he is not). On the other hand, he can not be labeled an unlawful enemy combatant (e.g., a saboteur) without a tribunal—something we were able to furnish to the Quirin defendants, but of course Hitler was nowhere near as threatening as Osama bin Laden.

The Administration's arguments in this case are incoherent whenever they touch base with either international or longstanding domestic precedents. They make perfect sense, however, seen as a way of getting Americans to accept very much un-American theories of justice and detention. For some strange reason, the idea of living without the Rule of Law is attractive to a lot of people who call themselves conservatives, although a less conservative (and less patriotic) principle is hard to find.
6.11.2007 10:19pm
ATRGeek:
By the way, if you read through the arguments in Milligan, the government made exactly that argument (that Milligan committed acts of insurrection and thus was subject to trial by military commission).

Of course, the Court held that while the courts in Indiana were open and capable of trying and punishing people for such crimes, a citizen of Indiana could not be taken from his home and tried by military commission instead. The Court further noted: "If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he 'conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,' the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended."

Al-Marri's situation is no different: the federal courts in Illinois were perfectly capable of trying him and punishing him for the alleged crimes, and if dangerous he could be detained without bail while awaiting trial.

The only possible distinction is that Milligan was a citizen of Indiana and al-Marri was merely a legal alien in Illinois, which is apparently what the government argued. But more recent Supreme Court cases have foreclosed that distinction in Due Process cases.
6.11.2007 10:20pm
ohwilleke:
The Confederacy was a country with many people who identified as its citizens. You can be a member of al-Queda, but you are a citizen of Qatar, or Saudi Arabia, or Afghanistan, or the United States, or Germany, or whatever.

Enemy alien is not a voluntary status, it is something that attaches to you because of your place of birth or parentage in most cases. If you just happen to be a citizen of a state we happen to be at war with, then you are an enemy alien and could be a very nice, harmless kid or little old lady. No one has accused Al-Marri (or anyone at Guatanamo) of being an enemy alien. The classic enemy aliens in U.S. jurisprudence are the Japanese descent people held in internment camps in WWII.

Al-Queda does not have a "population" which can be declared an "enemy alien". Somebody can be an associate of Al-Queda, someone can be a member of a terrorist organization, somebody can be a terrorist, but none of that makes you an "enemy alien". It may make you an unlawful alien enemy combatant, but that is a totally different beast than an enemy alien. All one has to do to show enemy alien status is establish someone's nationality and that their nation is at war with us. If that was all that was required, the declaration made by the DOD in this case wouldn't be necessary.
6.11.2007 10:21pm
ATRGeek:
Common Sense,

If you can be a combatant through association with organizations like Al Qaeda, why not through association with organizations like the Sons of Liberty?

Again, I think it is worth noting that precisely this argument was presented to the Court in Milligan (that military jurisdiction extended to everyone involved in insurrection against the United States, and therefore to Milligan), but was rejected.
6.11.2007 10:26pm
Common Sense (mail):
Common Sense, we are still waiting for some evidence that al-Marri was intending to put dynamite somewhere.

We have all the evidence necessary to make the determination, according to Hamdi. The Rabb declaration meets the standard as articulated by the Supreme Court, so your argument reduces to the fact that the Government is following recent SCOTUS precedent.

And why stop there? Surely detention of citizens who might be enemy belligerents (after all, for this, too, we have no impartial finding) is just as necessary: citizens can buy dynamite, too.

This is neither here nor there. The point is that priming a demolition is clearly evidence that would meet your higher standard and the logic of the majority opinion would sweep it under the rug so long as the student visa of the enemy combatant has not been yet revoked. This, of course, makes no sense, given that al Qaeda specifically tells its agents to seek student visas to gain access to our country to commit terrorist acts here and given that being a terrorist is a justifiable reason for the revocation of a student visa.

Since it's well-settled that the Fourth and Fifth Amendments apply to resident aliens as much as they do to citizens, your argument pretty much ends American liberties as we've known them.

No, you are wrong. Citizens can avail themselves of all the substantive rights of due process. Aliens get whatever Congress gives them. Literally, the due process rights that the majority is referring to are the regulatory procedures in the agency scheme by which the terrorist obtained his student visa. The "protections" in the student visa regs are not equivalent to the whole of a citizens rights under the Fifth Amendment. As for the Fourth Amendment, your argument would make more sense if this were an alien enemy combatant with a student visa who was reentering the country and in the process of crossing the border for the purpose of blowing up a building when he was nabbed. But, then, his Fourth Amendment rights would certainly be at their lowest ebb at the border crossing, and his student visa would be completely irrelevant to the scope of his protections, which would be minimal and, in any event, far less than that afforded a citizen.
6.11.2007 10:32pm
Common Sense (mail):
The Confederacy was a country

The Confederacy was not a country (and certainly its army was not). If you think this argument is going to prevail upon review, please just voluntarily give up your law license now!
6.11.2007 10:33pm
ReaderY:
The distinction from Milligan here is that the United States is alleging that Al-Marri was scting in association with and under orders from the enemy. In Ex Parte Milligan, the Supreme Court specifically noted that there was no allegation that Milligan was acting in concert with the enemy and that if there were, it would be a completely different case:

The Milligan opinion explicitly stated that Milligan was "no usage of war could sanction a military trial there for any offerce whatever of a citizen in civil life, in nowise connected with the military service."

Thus, the Milligan Court explicitly stated that its holding did not apply to those, in some wise, "connected with the military service". The Quirin decision, in turn, explicitly held that the Government has power to try by military tribunal citizens in the military service of the enemy as well as those in the military service of the United States.

Everything depends, therefore, on whether Al-Marri was in fact in the military service of the enemy. If he was, his detention was (and is) lawful. If not, it isn't.
6.11.2007 10:35pm
Common Sense (mail):
Everything depends, therefore, on whether Al-Marri was in fact in the military service of the enemy. If he was, his detention was (and is) lawful.

Yes, and by the applicable standard, he was determined to be.
6.11.2007 10:37pm
ReaderY:
On the "Confederacy was a country" argument.

It's worth remembering that the Barbary Pirates weren't a country either, there's plenty of past precedent for private militias.

I honestly don't think a citizen's constitutional rights do, or should, depend on the extent to which an enemy army observes corporate formalities.
6.11.2007 10:38pm
ATRGeek:
Well, Common Sense just proved he knows nothing about the relevant Supreme Court jurisprudence. From Wong Wing:

"And in the case of Yick Wo v. Hopkins, 118 U.S. 369, 6 Sup. Ct. 1064, it was said: 'The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.' These provisious are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws.' Applying this reasoning to the fifth and sixth amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law."

See also Verdugo-Urquidez.
6.11.2007 10:41pm
Tyrone Slothrop (mail) (www):
Common Sense:

"Citizens can avail themselves of all the substantive rights of due process. Aliens get whatever Congress gives them."

As it turns out, the Supreme Court has held otherwise several times. But for that, it's a nice theory.
6.11.2007 10:44pm
The Ace (mail) (www):
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.

Of course it wasn't intended to, nor does it settle it, which is why he's quoting it over &over.
6.11.2007 10:45pm
Common Sense (mail):
Equal Protection is not the same as substantive due process, and I see nothing in that quotation that negates what I wrote.
6.11.2007 10:45pm
Andrew J. Lazarus (mail):

Yes, and by the applicable standard, he was determined to be.
[emphasis added]
That's a funny use of the word "determined". Al-Harri as not been granted any venue in which to contest these claims. As of now, there is no determination, only the government's say-so. These are not equivalent, in this country.

It's the old mix-and-match. First you take a rule applicable to battlefield detainees, who are obviously some form of enemy combatant and there isn't any need to determine that. Then you add in "In this was, the battlefield is everywhere", and, presto, the special rules for battlefield detention applies everywhere. Sprinkle a little "Plus, since he wasn't in uniform on a regular battlefield he's an unlawful combatant" and stir, and now you don't have to treat him as a lawful POW either!

It's all one big crock. If the allegations against al-Marri are true, life in prison. Maybe they aren't true.
6.11.2007 10:47pm
Just an Observer:
It is interesting to read Judge Hudson's dissent, which treats Padilla as precedent within the circuit. While that case may be "good law" there, the administration ran from SCOTUS review, so this new reliance on it seems surreal.

The majority distinguishes this case from Padilla (and Hamdi) by relying on the difference between Al Qaeda in Peoria and the Taliban in Afghanistan. But if the Supreme Court rejects that distinction, it then has to face something close to the question posed in Padilla (except that Padilla is a citizen).

Hudson's dissent -- which agrees that the MCA does not strip constitutional habeas jurisdiction -- seems to adopt the government's fallback position. Which is that the district court and magistrate judge already have given Al-Marri his habeas review, providing as much process as he was due, and properly denied relief.
6.11.2007 10:48pm
The Ace (mail) (www):
Common Sense, we are still waiting for some evidence that al-Marri was intending to put dynamite somewhere.

And since it hasn't been shown to you, and should not be, it doesn't exist, right?

What I find comical about you leftists is even if this man had a trial and was convicted you'd accuse Bush of dummying the evidence anyway.
6.11.2007 10:48pm
Common Sense (mail):
LOL.

That is a distorting quote from Wong Wing. The rationale for the decision is that the Chinese alien was sentenced to hard labor and hard labor is an infamous punishment. Note the invocation of the Thirteenth Amendment in the opinion. Al-Marri hasn't been sentenced to hard labor in a slave labor camp.
6.11.2007 10:50pm
The Ace (mail) (www):
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"?

Hahahah, good one!

Proving you don't have the slightest clue as to what goes on at Camp Delta.

No matter, you'll still opine on the matter..
6.11.2007 10:51pm
Common Sense (mail):
And Verdugo-Urquidez doesn't support your theory; it supports mine...
6.11.2007 10:53pm
ATRGeek:
ReaderY,

That is not quite a correct description of Milligan. Again, it was argued to the Court that Milligan was just as subject to military jurisdiction as Confederate soldiers because he was also involved in insurrection, and associated with an "enemy organization" (the Sons of Liberty). So, in the Court's view he was in fact a "dangerous enemy" of the United States. He just wasn't a combatant subject to military jurisdiction.

I agree, though, that in some sense the dispositive question is whether Milligan/al-Marri was actually in military service (or, in other words, whether they were actually combatants). But the lesson of Milligan is that just because you are associated with an enemy organization, even to the point that you are actually plotting attacks on US military installations, that does not make you a combatant.

That, of course, is what people who don't like this decision are fundamentally arguing: they want to adopt a very broad definition of combatant such that it will include al-Marri. The problem is that their proposed definitions would seem to apply to Milligan as well, and we know that is wrong.
6.11.2007 10:54pm
Common Sense (mail):
Aliens: Entry and Deportation.—The Court has frequently said that Congress exercises “sovereign” or “plenary” power over the substance of immigration law, and this power is at its greatest when it comes to exclusion of aliens.4 To aliens who have never been naturalized or acquired any domicile or residence in the United States, the decision of an executive or administrative officer, acting within powers expressly conferred by Congress, with regard to whether or not they shall be permitted to enter the country, is due process of law.432 Since the status of a resident alien returning from abroad is equivalent to that of an entering alien, his exclusion by the Attorney General without a hearing, on the basis of secret, undisclosed information, also is deemed consistent with due process.433 The complete authority of Congress in the matter of admission of aliens justifies delegation of power to executive officers to enforce the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the country a money penalty, collectible before and as a condition of the grant of clearance.434 If the person seeking admission claims American citizenship, the decision of the Secretary of Labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. A decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing.435 Where the statute made the decision of an immigration inspector final unless an appeal was taken to the Secretary of the Treasury, a person who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on habeas corpus.436

4 See discussion under Art. I, § 8, cl. 4, The Power of Congress to Exclude Aliens.

432 United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also The Japanese Immigrant Case, 189 U.S. 86, 100 (1903). Cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).

433 Shaughnessy v. United States ex rel. Mezel, 345 U.S. 206 (1953). The long continued detention on Ellis Island of a non-deportable alien does not change his status or give rise to any right of judicial review. In dissent, Justices Black and Douglas maintained that the protracted confinement on Ellis Island without a hearing could not be reconciled with due process. Also dissenting, Justices Frankfurter and Jackson contended that when indefinite commitment on Ellis Island becomes the means of enforcing exclusion, due process requires that a hearing precede such deprivation of liberty.

Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953), wherein the Court, after acknowledging that resident aliens held for deportation are entitled to procedural due process, ruled that as a matter of law the Attorney General must accord notice of the charges and a hearing to a resident alien seaman who is sought to be "expelled" upon his return from a voyage overseas. The Knauff case was distinguished on the ground that the seaman's status was not that of an entrant, but rather that of a resident alien. And see Leng May Ma v. Barber, 357 U.S. 185 (1958).

434 Oceanic Navig. Co. v. Stranahan, 214 U.S. 320 (1909).

435 Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. United States, 208 U.S. 8 (1908).

436 United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy v. Johnson, 273 U.S. 352, 358 (1927).
6.11.2007 11:00pm
ATRGeek:
Common Sense: "Citizens can avail themselves of all the substantive rights of due process. Aliens get whatever Congress gives them."

The Supreme Court: "[A]ll persons within the territory of the United States are entitled to the protection guarantied by [the fifth and sixth] amendments, and [] even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law."

Definitely no contradiction there.

I won't bother with Verdugo, because at this point it is clear that "Common Sense" is not serious.
6.11.2007 11:04pm
Common Sense (mail):
That's a funny use of the word "determined".

The AUMF says "he determines" and "he" refers to the President. The AUMF is the law.
6.11.2007 11:04pm
ATRGeek:
Again, I suspect Common Sense is just a joke, but for those who are interested, this is from Kwong Hai Chew: "The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders".
6.11.2007 11:08pm
Common Sense (mail):
The Supreme Court: "[A]ll persons within the territory of the United States are entitled to the protection guarantied by [the fifth and sixth] amendments, and [] even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law."

No, there is no contradiction at all. What is due process for aliens is different than what is due process for citizens. And what is due process for aliens in the context of entry and deportation (and border crossings) is what Congress gives them. I never argued that al-Marri could be sentenced to slave labor.

You won't bother with Verdugo because it holds 5 votes for my position.
6.11.2007 11:10pm
Common Sense (mail):
But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders

You have not lawfully entered if you enter to commit terrorist acts and procure a student visa for that purpose.
6.11.2007 11:12pm
Trent Telenko:
Under the Geneva Conventions articles that the US government is signatory, a _LAWFUL COMBATANT_ must adhere to the following to qualify for those G.C. protections:

1) Wear a fixed insignia recognizable at a distance,
2) Carry arms openly,
3) Be under the command of a person or chain of command responsible for your actions (AKA a privateer operating under a letter Marquis and Reprisal from a soveriegn national government would qualify, a pirate operating for loot, or terrorist would not)
4) Conduct operations in accordance with the rules and customs of war.

Any enemy combatant that does not meet those tests is by definition a _UNLAWFUL ENEMY COMBATANT_.

Al-Marri plainly does not meet any of those requirements.

The 4th Circuit Court of Appeals has ignored the plain text of the treaty to achieve a political end.

I fear the Federal Courts are headed towards an Andrew Jackson style constitutional crisis that they cannot win.
6.11.2007 11:13pm
Common Sense (mail):
Again:

Do you think the fact he got a student visa outweighs that he entered to commit terrorist acts? I made this argument explicitly before. Do you get it now?
6.11.2007 11:13pm
Common Sense (mail):
If the visa had been revoked prior to his detention, the majority opinion would have had no basis in law whatsoever. This is the point. It is a flimsy opinion.
6.11.2007 11:14pm
ATRGeek:
By the way, in the hypothetical case of person with a student visa conspiring and/or attempting to commit an act of terrorism: you could, of course, arrest, indict, and try this person for that crime. Again, that is the whole point of Milligan (that the criminal courts, when available, provide a remedy for this situation).
6.11.2007 11:14pm
Common Sense (mail):
You don't have to arrest and try him because he's an enemy combatant who is on a mission for al Qaeda and he hasn't lawfully entered the country.
6.11.2007 11:15pm
Common Sense (mail):
If he put on his student visa application "I want to enter to blow up Americans" he wouldn't have gotten a visa, but that was his purpose, so he lied on his visa application, so he never lawfully obtained a visa, so he entered unlawfully.
6.11.2007 11:18pm
Mark Field (mail):
It looks to me like Common Sense had Jacques Derrida for Con Law.
6.11.2007 11:19pm
ATRGeek:
Old Common Sense: "Citizens can avail themselves of all the substantive rights of due process. Aliens get whatever Congress gives them."

New Common Sense: "And what is due process for aliens in the context of entry and deportation (and border crossings) is what Congress gives them."

Interestingly, although Common Sense tries to save his original claim by radically restricting the context, he still gets it wrong (as the Court in Kwong Hai Chew held, the Constitution does provide a guarantee of due process for resident aliens in a deportation context).

But again, obviously Common Sense is just a joke.
6.11.2007 11:19pm
Common Sense (mail):
Hmm, no.

Kwong Hai Chew is about procedural due process.

The "Old Common Sense" quotation is part of a larger paragraph discussing border crossings and this particular case, involving someone entering the country on a fraudulent student visa. If you want to take my statement out of context, that's fine. But my argument has been consistent.

You, on the other hand, cited a case about slave labor (totally irrelevant) and a case that supports my position about the application of the Fourth Amendment outside of American territory (we're talking about crossing the border or residing in American territory).
6.11.2007 11:24pm
Common Sense (mail):
From the syllabus of Kwong Hai Chew:


Under 8 CFR 175.57 (b), a regulation pertaining to the entry of aliens into the United States, the Attorney General has no authority to deny to an alien who is a lawful permanent resident of the United States


Student visas are temporary.

Terrorists entering to commit terrorists acts aren't lawful.

Lying on your visa application is a crime.
6.11.2007 11:27pm
Common Sense (mail):
Oh, and CFR means it's from the Code of Federal Regulations...
6.11.2007 11:28pm
George Weiss (mail):
ppl here need to actually read the decision:

first...re statutory matters the majority makes a HUGE difference between hamdi (the American citizen who was captured oversees) and this case..where the guy was captured in the US...they say that hes not in the same category as hamdi b/c he was caputred here and that cant be a law of war thing necessarily...b/c then any non citizen who was thought to be a terrorist could be held indefinitely without charge..and this doesn't seem to be the intent of the AUMF...since the patriot act prescribes another way of handling residents of the us who are charged with terror (e they citizens or not)...they admit combatants have the right to be held like such..but its impossible..in their view..for a resident to be an enemy combatant.

second...re constitutionality...the majority leaves this issue undecided b.c they rule there is no statutory reason for the detention....

so far the SCOTUS has ruled that there is no habeus constitutional right for 1. non citizens captured oversees (who now also have no statutory right to it..whether new or pending since the acts (hamdan and subsequent legislation) 2. even American citizens have no constitutional right to habeus when they are enemy combatants..which they can be if caught oversees. (hamdi)..except that they do have the right to have their case heard by a "neutral decision maker"

if the SCOTUS or an en banc court reverses this decision today they effectively must say that
1. there is statutory authority to hold someone captured in the US under military law
but more importantly they must hold that
2. there is CONSTITUTIONAL AUTHORITY TO HOLD A RESIDENT OF THE US without habeus....

a holding such as this would be disastrous b.c of 2...if there is authority to hold a resident without habeus..even without the congressional suspension of habeus corpus...than there is also..by extension...authority to hold a citizen without habeus (except perhaps with the right to a neutral decision maker)..

this is because...the constitution makes no distinction in the right to habeus between a citizen and a non citizen...

so far..the differences made by the court b/n hamdi (a us citizen) and hamdan ( a non us citizen) are only that a citizen has the right to a neutral decision maker...NOT HABEUS

but those cases dealt with ppl captured abroad...

the only thing we have between a ruling effectively canceling all right constitutional right to habeus for ANYONE ACCUSED OF BEING A TERRORIST..NO MATTER WHO THEY ARE..is this case.
6.11.2007 11:33pm
Common Sense (mail):
the constitution makes no distinction in the right to habeus between a citizen and a non citizen...

Except if you read the footnotes in the opinion it says that the opinion is limited to those who receive Due Process protection. It is overinclusive in the opposite direction than you claim. Someone who falsely obtains a student visa has received "due process".

I wonder, though, how you can participate in an insurrection or a rebellion without being a citizen?
6.11.2007 11:37pm
ATRGeek:
Common Sense, if you keep digging, I am sure that eventually you will find the bottom of that hole.

Incidentally, obviously if the government proved its allegations in a deportation proceeding, they could deport al-Marri. But as the Supreme Court has held, in deportation proceedings the Fifth Amendent of the Constitution affords aliens due process rights.
6.11.2007 11:37pm
Common Sense (mail):
George Weiss,

We have birthright citizenship in this country.

You aren't a citizen by residence. You are a citizen by birth. There is no slippery slope from residence to birth.
6.11.2007 11:38pm
Common Sense (mail):
But as the Supreme Court has held, in deportation proceedings the Fifth Amendent of the Constitution affords aliens due process rights.

Yes, whatever Congress chooses to give them.

Oh, and we're talking about entry.
6.11.2007 11:40pm
Steve H (mail):
Damn, "Common Sense," are you part of a government team that investigated al-Marri? Because you are making a whole lot of statements about what al-Marri did -- that he is a member of al-Qaeda, that he entered the US to commit terrorist acts, that his purpose was to blow up Americans, etc.

How do you know all this, again?
6.11.2007 11:40pm
Katherine (mail):
What on earth are you talking about? This is a procedural due process case, not a substantive one; it isn't an immigration proceeding; Congress can take away aliens' substantive rights to be here but until they do so even immigration proceedings have to follow the due process clause of the Constitution; and the due process clause applies to aliens who enter illegally as well as those who enter legally:

But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U.S. 202, 210 (1982); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596—598, and n. 5 (1953); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); cf. Mezei, supra, at 212 (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law”). Indeed, this Court has held that the Due Process Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U.S. 228, 238 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U.S. 21, 32—34 (1982); Johnson, supra, at 770.


That's from Zadvyas v. Davis.
6.11.2007 11:41pm
Common Sense (mail):
Also from Zadvyas v. Davis: "Aliens who have not yet gained initial admission to this country would present a very different question."

If the student visa is fraudulent...
6.11.2007 11:45pm
ATRGeek:
Common Sense: "Oh, and we're talking about entry."

The Fourth Circuit: "[Al-Marri] was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes."

Dig, dig, dig ...
6.11.2007 11:46pm
Common Sense (mail):
This is from the syllabus of Landon:


JUSTICE O'CONNOR delivered the opinion of the Court.

Following an exclusion hearing, the Immigration and Naturalization Service (INS) denied the respondent, a permanent resident alien, admission to the United States when she attempted to return from a brief visit abroad. Reviewing the respondent's subsequent petition for a writ of habeas corpus, the Court of Appeals vacated the decision, holding that the question whether the respondent was attempting to "enter" the United States could be litigated only in a deportation hearing and not in an exclusion hearing. Because we conclude that the INS has statutory authority to proceed in an exclusion hearing, we reverse the judgment below. We remand to allow the Court of Appeals to consider whether the respondent, a permanent resident alien, was accorded due process at the exclusion hearing.



That looks like "whatever Congress gives them" to me...
6.11.2007 11:48pm
Katherine (mail):
Then he gained admission fraudulently, and is subject to deportation or prosecution on those grounds if the government can prove it in court. The Fifth Amendment Due Process clause still applies fully, and you still have no clue what you're talking about.
6.11.2007 11:49pm
Common Sense (mail):
The Supreme Court: "Aliens who have not yet gained initial admission to this country would present a very different question."

Geek: "[Al-Marri] was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes."

Common Sense: the Fourth Circuit opinion reduces to the proposition that the fraudulent student visa wasn't revoked quickly enough. Scroll up.
6.11.2007 11:50pm
Common Sense (mail):
Then he gained admission fraudulently, and is subject to deportation or prosecution on those grounds if the government can prove it in court. The Fifth Amendment Due Process clause still applies fully, and you still have no clue what you're talking about.

Actually, you have no idea what you're talking about. What process the alien gets is whatever form Congress chooses to give. And, no, substantive due process will not apply. And, yes, if the visa had been revoked quickly enough, etc., etc.
6.11.2007 11:52pm
Katherine (mail):
You have no idea what an exclusion hearing is, do you?
6.11.2007 11:52pm
George Weiss (mail):
atr geek:

again ...this decision did not deal with the consitionuality b/c they held there was no statutory authority for a resident to be in a military lokup b.c that wanst the intent of the AUMF

..there is only dicta and footnotes on the issue of consituionality..and they are non binding

in order to REVERSE..the en banc court or the SCOTUS must deal with it....and then say that a resident has no due process.

common sense:
your not getting the point.

yes we all have citizenship by birhtright...the point is not who is a citizen...its what does that citizenship get you


if there is no distiction in due process b/n a citizen and a non citizen (a decision supported by a text reading of the consitution...and basically upheld in hamdi other than to say he has the right to a neutral decision maker) than a ruling that a resident captured here can be an enemy combatant is de facto a ruling that a citizen who is an enemy combatant is in the same category as hamdi..even when captured here...(if your a citizen like hamdi.you get a neutral decision maker..thats it..no habeus)

if cizzens can have no habeus..and residents have no habeus...than neither no resident citizens (make sense?)


as to your point that he probably was not really a legal resident b.c he lied on his visa..your probly right..but it doesnt matter...those were not the facts the appealet court had in the record...the record said he was a legal resident and that fact were not disputed by the gov...the appeals court would probly be loathe to just say he wanst legal then and be done with it..since its wanst really the issue on appeal.
6.11.2007 11:53pm
Common Sense (mail):
I know an exclusion hearing is provided for in regs.
6.11.2007 11:54pm
ATRGeek:
Common Sense: That looks like "whatever Congress gives them" to me...

The Supreme Court in Landon:

"Our determination that the respondent is not entitled to a deportation proceeding does not, however, resolve this case. In challenging her exclusion in the District Court, Plasencia argued not only that she was entitled to a deportation proceeding but also that she was denied due process in her exclusion hearing. We agree with Plasencia that under the circumstances of this case, she can invoke the Due Process Clause on returning to this country, although we do not decide the contours of the process that is due or whether the process accorded Plasencia was insufficient.

This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. See, e. g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); Nishimura Ekiu v. United States, 142 U.S. 651, 659-660 (1892). Our recent decisions confirm that view. See, e. g., Fiallo v. Bell, 430 U.S. 787, 792 (1977); Kleindienst v. Mandel, 408 U.S. 753 (1972). As we explained in Johnson v. Eisentrager, 339 U.S. 763, 770 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.

...

The question of the procedures due a returning resident alien arose in Kwong Hai Chew v. Colding, supra. There, the regulations permitted the exclusion of an arriving alien without a hearing. We interpreted those regulations not to apply to Chew, a permanent resident alien who was returning from a 5-month voyage abroad as a crewman on an American merchant ship. We reasoned that, "[f]or purposes of his constitutional right to due process, we assimilate petitioner's status to that of an alien continuously residing and physically present in the United States." 344 U.S., at 596. Then, to avoid constitutional problems, we construed the regulation as inapplicable. Although the holding was one of regulatory interpretation, the rationale was one of constitutional law. Any doubts that Chew recognized constitutional rights in the resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, where we described Chew as holding "that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him." 374 U.S., at 460."

Dig, dig, dig ...
6.11.2007 11:54pm
Common Sense (mail):
although we do not decide the contours of the process that is due or whether the process accorded Plasencia was insufficient.
6.11.2007 11:56pm
Common Sense (mail):
Yeah, because Congress decides that...
6.11.2007 11:57pm
ATRGeek:
Right, the Supreme Court remanded to the district court to determine what process was constitutionally required in these circumstances.

That, of course, is entirely consistent with due process being determined by constitutional law, as the Court held.

Dig, dig, dig ...
6.11.2007 11:59pm
ATRGeek:
Sorry, they remanded to the Court of Appeals:

"Thus, although we recognize the gravity of Plasencia's interest, the other factors relevant to due process analysis - the risk of erroneous deprivation, the efficacy of additional procedural safeguards, and the Government's interest in providing no further procedures - have not been adequately presented to permit us to assess the sufficiency of the hearing. We remand to the Court of Appeals to allow the parties to explore whether Plasencia was accorded due process under all of the circumstances."

Dig, dig, dig ...
6.12.2007 12:01am
Common Sense (mail):
Right, the Supreme Court remanded to the district court to determine what process was constitutionally required in these circumstances.

Except district courts generally just defer to what the regs covering these circumstances are passed by Congress. In the rare situation Congress hasn't foreseen a situation you get the Court punting. I'd be surprised if the district court did anything but copied what's already in some regs.
6.12.2007 12:04am
Common Sense (mail):
Which, by the way, is what Congress expected to happen with the MCA and its CSRT process.
6.12.2007 12:05am
ATRGeek:
Actually, federal courts in due process cases regularly apply what is known as the Mathews test, after the case Mathews v. Eldridge. That is what the Court instructed in Landon:

"In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures. Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976)."

Dig, dig, dig ...
6.12.2007 12:07am
Common Sense (mail):
I'm familiar with Matthews, and it usually upholds the Government agency procedures. You're not living in reality. What you get under Matthews in most cases is the opportunity to file some papers with a government agency, as per what Congress has prescribed in the APA.
6.12.2007 12:09am
ATRGeek:
By the way, I have to say that if Common Sense is a troll (which I strongly suspect), this is a masterful performance.
6.12.2007 12:11am
Common Sense (mail):
I'll take that as a concession of defeat.
6.12.2007 12:11am
ATRGeek:
Old Common Sense: Aliens have no constitutional rights, only rights given to them by Congress.

New Common Sense: Courts usually hold that the procedures afforded to aliens do not violate their constitutional rights.

Dig, dig, dig ...
6.12.2007 12:13am
Common Sense (mail):
I never said "aliens have no constitutional rights".

You've officially resorted to straw-men. Have a nice night.
6.12.2007 12:15am
Thomas_Holsinger:
ATRGeek,

I was wrong about Milligan. I thought he was only involved in sedition, misremembering a speech by Lincoln asking what the difference was between a seditionist who advocated violence against the Union, and a young fool who was misled by the sedition into acting.

Accusing people of lying, when they could simply be wrong, impedes argument. This is not the Daily Kos.

ohwilleke,

Padilla was not captured "in arms". He received training abroad and came back here with the intent of taking up arms. We don't yet know what training Al-Marri received abroad before coming here the second time - the federal courts can no longer be trusted, in national security cases at least, to fairly summarize the evidence and arguments presented.

The enemy certainly does not draw any distinction between combatants and non-combatants, for them or us, and we shouldn't either where their personnel are concerned.

ReaderY,

One of the decisions here in the past few years, and I don't know if it was the Supreme Court's or a circuit's upheld by the Supremes, said that the government's evidence that a captive was an enemy combatant was entitled to great deference - perhaps only a colorable claim.

I personally would draw a bright line distinction betweeen citizens and aliens here, particularly concerning habeas corpus, and deny <b>statutory</b> habeas corpus to ALL non-citizens.

CommonSense,

AFAIK, ATRGeek is correct about the 14th Amendment.
6.12.2007 12:20am
ATRGeek:
Old Common Sense: "Citizens can avail themselves of all the substantive rights of due process. Aliens get whatever Congress gives them."

New Common Sense: "I never said 'aliens have no constitutional rights'."

Dig, dig, dig ...
6.12.2007 12:23am
ATRGeek:
Holsinger,

I apologize for calling you a liar. I will note that I did in fact post the facts of Milligan before you posted your version, but I accept your explanation that you were simply mistaken.

By the way, I don't think I will ever understand arguments of the form that we should adopt the behavioral standards of our enemies ("The enemy certainly does not draw any distinction between combatants and non-combatants, for them or us, and we shouldn't either where their personnel are concerned."). Not only does that strike me as unprincipled, but it also seems impractical (our superior behavioral standards are one of our chief sources of strength).
6.12.2007 12:30am
Andrew J. Lazarus (mail):
In many states, foreigners can own real property. Pity for them that we can confiscate it on a whim, since aliens have no Due Process rights. (Unless of course, it's US aliens whose Venezuelan and Cuban property is at issue. Then we threaten war.)

I find it extraordinary that Common Sense makes arguments that so transparently defy common sense.

{Aside to Telenko: for al-Marri to be an unlawful combatant, he has to be a combatant. Since he isn't a battlefield detainee, and he isn't a member of enemy armed forces by all accounts, how exactly has this been determined? Government say-so which he couldn't defend himself against. Yeah, right.)
6.12.2007 12:47am
Thomas_Holsinger:
ATRGeek,

I repeat that it's called "war". War is not peace. If you don't understand the difference by now, you never will. But I'll try anyway.

The entire purpose of national sovereignity is to use the collective power of your own people, expressed through their government, to protect your own people from foreigners.

Therefore it is normal, appropriate and necessary to draw many distinctions between your own people and foreigners.

It is particularly important to make such distinctions during war as then foreigners are trying harder than usual to kill your own people. Not to mention that it is especially important then to err on the side of caution when dealing with foreigners.

I know, I know, this is hard for some people to understand. They are commonly called lawyers.
6.12.2007 12:52am
Thomas_Holsinger:
ATRGeek &Everyone Else,

Please note that there is a factor on these blogs called "post lag". I.e., someone may write a post off-line responding to someone only to have multiple posts by others go up in the interval of writing.

It is easy to think that someone ignored what you said when they really didn't see it due to the time lag between their deciding to respond and the time their post actually goes up.
6.12.2007 1:02am
ATRGeek:
The "entire purpose" of national sovereignity is to protect your own people from foreigners? Really?

I rather prefer this formulation:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

On that formulation, providing for the common defence is just one of many goals of our nation.

In any event, I am not saying that we should not have laws of war. I am saying that I see no reason to adopt the laws of war of our enemies ("The enemy certainly does not draw any distinction between combatants and non-combatants, for them or us, and we shouldn't either where their personnel are concerned.").
6.12.2007 1:03am
ATRGeek:
Holsinger,

I posted the facts of Milligan at 6:46pm. Mark Field mentioned the facts of Milligan about an hour later at 7:43pm. You misstated the facts of Milligan in a response to Mark at 8:25pm. So your story about "post lag" makes no sense, since I posted the facts of Milligan long before you could possibly have been composing your response to Mark.

But I won't accuse you again of deliberate dishonesty.
6.12.2007 1:10am
Katherine (mail):
"I know an exclusion hearing is provided for in regs."

Now there's a classic "I didn't do the reading" answer....Which regs? Are they currently in force? Do you know what the difference between exclusion hearings, deportation hearings, and removal hearings is, and what they have in common? Do you know what gov't agency held/holds exclusion hearings? Also, on what time &date did Al Marri's exclusion hearing take place?
6.12.2007 1:39am
Alex650 (mail):
This is what I don't understand, and maybe some of you or Prof. Kerr can help me out (this is what I get for not taking habeas before graduation--begging for scaps of legal knowledge!):

Isn't there some sort of provision allowing district courts to conduct evidentiary hearings to determine the legally dispositive facts underlying a habeas petition? The Fourth Circuit just says there's no evidence that al-Marri was an enemy combatant, but it doesn't seem from the description of the history of the case that there was ever any opportunity for the government to present such information (without going the admin detention route). I realize that the Fourth Circuit seems to hold that, as a matter of law, a footsoldier of al Qaeda cannot be an enemy combatant. But was there anything to prevent the Fourth Circuit from taking the more narrow road and simply reversing and remanding, with instructions to the District Court to determine whether al Marri was in fact an enemy combatant?

Obviously they did not do this, but I guess my question is whether that would even have been a legally plausible outcome? (Because it seems responsive to and consistent with all of the majority's constitutional concerns, save the Taliban/al Qaeda distinction.)
6.12.2007 6:01am
ATRGeek:
Alex650,

Actually, the Fourth Circuit held that even assuming that the government's factual allegations were true, al-Marri was entitled to the writ.

As for evidence, what the government usually does in these cases is submit a declaration where an official relates his beliefs about the facts of the case, citing his access to classified information. In this case, the declaration was provided by Jeffrey Rapp, the director of the Joint Intelligence Task Force for Combating Terrorism at the Defense Intelligence Agency.

Normally that sort of thing would be inadmissible hearsay, since it is not based on Rapp's personal knowledge. But the District Judge held that the Supreme Court in Hamdi implicitly allowed the admission of hearsay evidence at the initial stages of these proceedings, and further that Rapp's declaration was sufficient to shift the burden back to al-Marri, meaning he would have to provide rebuttal evidence that was more persuasive than the government's evidence.

Al-Marri refused to do that, claiming that it was an unconstitutional burden to ask him to prove his innocence. So the District Court held that the government's factual allegations were uncontested.

But again, the Fourth Circuit held that even assuming the government's factual allegations were true, al-Marri was entitled to the writ.
6.12.2007 9:30am
Justin (mail):
The Fourth Circuit just says there's no evidence that al-Marri was an enemy combatant,

- this was dicta, meant to underscore the importance of the reasoning

I realize that the Fourth Circuit seems to hold that, as a matter of law, a footsoldier of al Qaeda cannot be an enemy combatant.

- Where do you see that? That's not my reading of the holding.
6.12.2007 11:21am
Bob from Ohio (mail):
Justin:


I realize that the Fourth Circuit seems to hold that, as a matter of law, a footsoldier of al Qaeda cannot be an enemy combatant.

- Where do you see that? That's not my reading of the holding.



From Page 48 of the opinion:


For unlike 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.


So, these two judges would hold that an al Qaeda member had to be in Afgahanistan or actually "engaged in combat" to be an enemy of the US subject to detention.
6.12.2007 1:42pm
Justin (mail):
If you equate the assertion in A and the assertion in B as equal, I think you're making inferences that are not supported. If by "footsoldier" you mean "not a soldier," you're approaching their position - but that's kind of absurd, no?
6.12.2007 4:53pm