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Fourth Circuit Grants Petition for Rehearing in Al-Marri:
The Fourth Circuit has granted the government's petition for rehearing in Al-Marri v. Wright, the case about the suspected Al Qaeda cell member who allegedly entered the U.S. to commit attacks here and was seized and held by the military.
Anderson (mail) (www):
Figures.
8.23.2007 10:08am
M. Lederman (mail):
Actually, Orin, he was "seized and held" by civilian authorities -- originally the FBI, on a trumped-up "material witness" theory -- and processed in the ordinary criminal justice system, until such time when they wanted to engage in "enhanced interrogation techniques," at which point (the eve of trial) they transferred him to indefinite military detention. See this post.
8.23.2007 10:47am
Justin (mail):
Prediction - 4th Circuit reverses; Supreme Court grants cert and re-instates the original panel's decision (6-3 or 7-2). Al-Marri then proceeds to trial a psychological shell of his former self due to torture (sounds familiar?), some evidence gets tossed on 4th Amendment grounds (and the conservative blogs get ANGRY!), and there's a settlement in which Al-Marri agrees to be deported in return for no (additional) jail time.
8.23.2007 11:37am
Anderson (mail) (www):
Justin, you think Scalia would vote w/ the panel? This looks like another WWKD decision -- What Will Kennedy Do?
8.23.2007 11:46am
Justin (mail):
I think Kennedy and Alito (who is surprisingly somewhat center-right, so far) are both likely to vote for the original panel. Scalia is a swing vote here, and I think Roberts (who is unsurprisingly not even close to center-right) and Thomas are sure to dissent.
8.23.2007 12:24pm
Anderson (mail) (www):
Well, I certainly hope you're right about Alito, but I'll believe it when I see it. The less said about Roberts, the better -- I'd violate some site policy.
8.23.2007 12:30pm
Justin (mail):
PS - by center-right, i mean the center of the right winged spectrum, which I suppose passes for moderate in the current Republican party. I don't mean a somewhat conservative centrist (like Senators Snow or Nelson, for instance).
8.23.2007 1:22pm
Steve:
I don't think non-citizens will be getting any love from Scalia.
8.23.2007 1:51pm
MikeC&F (mail):
We can expect more judicial activism from the Fourth Circuit - which is every bit as activist (but in different ways) as the Ninth Circuit.

In any event, since conservatives are so pleased with the Fourth Circuit's activism, I eagerly await the forthcoming Clinton White House. Because, as anyone who is not a hack knows, when the power of the White House grows, so does the potential for an abuse of power by people on the "other side."

I imagine, however, the same people who worship the Fourth Circuit will find a "new religion" when Clinton, using the same types of arguments used by the current Administration, decides to have some more fun.

I also imagine the Fourth Circuit, following John Yoo's example, will respond differently to Clinton's claims of executive power. Because, as we all know, activist judges are at least as worried about the identity of the parties as they are with the legal principles involved.
8.23.2007 3:15pm
Howard Gilbert (mail):
Remember that the District Court in al Marri followed the procedural outline that the Supreme Court layed down in Hamdi. This provided a hearing similar in function to the CSRT, but supervised by the court instead of the military. Al Marri declined to participate or present any evidence, so the District Court affirmed his classification as an enemy combatant. Al Marri then appealled claiming that he was entitled to what amounts to a criminal trial where he could remain silent and the government would have to prove a case beyond a reasonable doubt.

The Al-Marri v Wright decision found that al Qaeda members were not entitled to combatant status and therefore that al Marri and other members of al Qaeda were "civilians" under the law who must be treated according to ex parte Milligan. Hamdi and Padilla were enemy combatants, but only because both were Taliban (not al Qaeda!!) when they held weapons on the battlefield in Afghanistan.

It seems entirely likely that either the en banc panel or the Supreme Court will overturn the geopolitical (all members of al Qaeda are "civilians") claim on which this decision is based. Having done so, it is not obvious that either will proceed to what most people think of as the "merits". Before you get there, it is easy to take a procedural shortcut and declare that, by refusing to participate in the original hearing al Marri waived his right to appeal any question of his combatant classification. All that then remains is whether the CSRT-like hearing supervised by the District Court was sufficient under Hamdi or if more process is required. If it was sufficent, then the District Court is affirmed and al Marri blew his chance to contest. It is not hard to imagine getting a majority of the Supreme Court to vote this way about procedure no matter how you believe they would vote were the question instead about his rights.

If the hearing was insufficent, then it goes back to the District Court with new instructions for a second try. Al Marri will have a new chance to participate. Assuming that his team reads the tea leaves and decides to contest the classification, then all the questions people would like to discuss come back to the court in the second round of appeals. I don't think they will be considered this time around.
8.23.2007 3:33pm
Justin (mail):
Howard,

You seem to be fundamentally missing the point of the Fourth Circuit's decision in Al Marri. The idea that the Fourth Circuit based its ruling on the idea that "all members of al Qaeda are 'civilians'" is simply dishonest. Indeed, the exact language from the Fourth Circuit is that:

"For not only was al-Marri seized and detained within the United States, he also has substantial connections to the United States, and so plainly is protected by the Due Process Clause."

Instead, you intentionally distort some non-essential portion from the decision that (accurately) depicts international law. And nothing in it says that al Queda members cannot be military combatants, just that the affiliation with al Queda does not make them per se military combatants. Which is also an accurate description of international law.

Indeed, to overturn the decision, you have to find both that Congress *could* authorize (under the MCA) the government to arrest and hold as an enemy combatant, without even so much as a good faith determination, any American citizen *and* that Congress so intentionally did authorize. And while you may find one vote for that absurd result (Scalia), and you may find two more for the "Executive is King" argument (i.e., the government, when using the words national security, can do whatever it wants, whenever, and however) (Thomas and Roberts), finding a fourth, much less a fifth vote, for such an argument is going to be incredibly difficult.

And your "waiver" argument is either misinformed or dishonest. The Fourth Circuit held that as a matter of law, the allegations the government put forth are insufficient to detain al-Marri as an enemy combatant. No further hearing would be necessary. But even if a hearing was given (and to what authority that hearing could exist is pure fiction - its unclear where the Court would have the right to make the *factual* review in light of the MCA - the waiver argument is nonsense. Al Marri took the position that he didn't need to present any facts because the government failed to meet their burden. If that's a waiver, then any defendant who rests without calling a witness in a garden-variety criminal case would also *waive* their right. One does not need to put up some nominal piece of evidence to get a determination of whether the evidence qualifies for a particular legal standard when that party does not have the burden of production - and there does not seem to be any valid argument that Al Marri had the burden of proving that he's not an enemy combatant, assuming arguendo that he legally can be so declared AND that the courts had the right to review that determination factually.
8.23.2007 4:47pm
BMGordon (mail) (www):
How long must AQ invaders evade apprehension to earn the protection of the U.S. courts? Bin Laden wants to know. This could determine how much manpower he needs for planned operations in Texas and New Mexico.

Assume that a contingent of AQ launches an assault from outside Juarez, killing a few hundred US citizens on the way through El Paso. They spend a few minutes machine-gunning students and faculty in the free-fire (AKA "gun free") zone at NMSU Las Cruces, then head back toward Mexico. Their trucks are not being operated erratically, and their mounted guns and RPGs are not firing (i.e, they are committing no felony assault) at the moment ANG fighter jets arrive on scene. What are the Section 1983 implications for the pilots if they fire on the column? Do matters change if it turns out the invaders were all recruits from Dearborn and Marin County?
8.23.2007 5:10pm
Howard Gilbert (mail):
Justin,
The Fourth Circuit had already ruled that even a US citizen can be detained as a member of al Qaeda attempting to enter the US to conduct sabotage. In Padilla v Hanft:

Our conclusion that the AUMF as interpreted by the Supreme Court in Hamdi authorizes the President's detention of Padilla as an enemy combatant is reinforced by the Supreme Court's decision in Ex parte Quirin, 317 U.S. 1 (1942), on which the plurality in Hamdi itself heavily relied. In Quirin, the Court held that Congress had authorized the military trial of Haupt, a United States citizen ...
Like Haupt, Padilla associated with the military arm of the enemy, and with its aid, guidance, and direction entered this country bent on committing hostile acts on American soil. J.A. 22-23. Padilla thus falls within Quirin's definition of enemy belligerent, as well as within the definition of the equivalent term accepted by the plurality in Hamdi.

In Al-Marri v Wright a second panel of the same Circuit endorsed Padilla but came to an opposite conclusion from the passage cited. Both Padilla and al Marri were al Qaeda agents sent to the US by the same commanding officer. Both intended to commit sabotage, although Padilla intended to blow up buildings and kill people while al Marri only intended some vaguely defined computer based economic sabotage. The authority to detain enemy saboteurs comes from the Laws of War and the Quirin decision. The MCA only constrains litigation.

The hearing was already held under the direction of the District Court based on the instructions provided in Hamdi. Remember, Hamdi was a US citizen held in the cell "next door" to al Marri. In Hamdi the Supreme Court described the outline of a Habeas hearing that might be used to challenge detention based on a claim that someone is an enemy combatant. When al Marri declined to present any evidence or arguments, the District Court entered what amounts to a default judgement in favor of the government upholding his classification as an enemy combatant. If the higher courts find that al Marri, an alien, has no greater rights than Hamdi, a citizen, when both were being held in the same place for the same reason, then the District Court default judgement was correct and the case is over.

The original Fourth Circuit al Marri decision skipped over the question of what form the Habeas hearing should take. It ruled instead that members of al Qaeda who are not captured in a battlefield in Afghanistan cannot be classified as enemy combatants. Since this directly contradicts the quoted finding in a previous decision of the same Circuit, the en banc panel will have to reconcile the two findings. That is exactly what you expect a Circuit to do when two panels come to contradictory conclusions.

Note that since this case raises exactly the same issues as Padilla, if it goes to the Supreme Court we may finally get a chance to find out how the court would have voted on Padilla. However, my belief is that they will not be sympathetic to the idea that an agent of Bin Laden, under orders from the man responsible for 9/11, who snuck into the US the day before the 9/11 attacks for the purpose of sabotage, should demand better treatment in the courts than they previously decided was due to an American citizen who just happened to be in Afghanistan fighting the Northern Alliance on behalf of the Taliban. The District Court "default" may simply be upheld leaving everyone to wonder what would have happened if his legal team put up a fight on the merits.
8.23.2007 6:13pm
Justin (mail):
I don't have the time to read Padilla right now, but Judge Motz carefully distinguishes the case, so its wrong that it deals with "exactly" the same issue, and your original argument is not based at all on Padilla, but on an unfair and incomplete reading of al Marri, and a nonsensical understanding of the theory of waiver.
8.23.2007 6:37pm
davod (mail):
Is their something in between enemy combatant and civilian?
8.23.2007 6:55pm
Howard Gilbert (mail):
"Is their something in between enemy combatant and civilian"

This is a very hotly debated question. According to European commentary (including a widely referenced decision of the Iraeli supreme court) everyone who is not a combatant is a civilian per se. The State Department points to the actual text of the treaties and claims that this is not true.

In the context of the current case, Article 5 of the Fourth Geneva Convention titled "Geneva Convention relative to the Protection of Civilian Persons in Time of War" deals with the case of spies and saboteurs. This leads some to argue that Padilla and al Marri must be "civilians" because "International Law says so".

Actually, GC IV rather carefully defines "Protected Persons" but never defines who is a "civilian" and mostly doesn't use the term except in its title. Since 99% of the Protected Persons are clearly civilians, the fact that there may be some non-civilians covered by the treaty is not a problem except to those who, like the al Marri decision, try to claim that everyone it covers is a civilian as a matter of law.

Separately, US domestic law particularly ex parte Milligan and ex parte Quirin define certain rules for "civilians". Quirin makes it clear that spies and saboteurs are not civilians under US law, but instead are unlawful enemy combatants. Of course Quirin was decided in 1942 and the Geneva Conventions are 1949. So the issue that al Marri and a lot of arguments about detainee status depend on is

Is everyone covered by GC IV a civilian under commonly accepted international law? If so, is this interpretation binding on the US, who has been protesting, kicking and screaming that this idea is nonsense? Given that there is a dispute, is this an Article II Foreign Affairs thing or an Article III "treaties are the supreme law of the land" thing [There are four ways to do things, the international way, the State Department way, the Court way, and the right way]. Finally, does the use of "civilian" in GC IV actually have anything to do with what was clearly a different meaning of civilian when the Supreme Court decided Milligan?

There is another more interesting question. I would contend that there are several different meanings to "combatant" in common use, and the meaning of that word when used as part of the phrase "unlawful enemy combatant" is actually a different definition from the one typically associated with "lawful combatant" or more formally "privileged combatant".

That said, I clearly haven't answered your question. All I can hope is that is makes things clearer rather than more confusing.
8.23.2007 7:52pm
Howard Gilbert (mail):
Alright, its more confusing. There are a lot of different definitions of "combatant" and a lot of different defintions of "civilian". There is one category (spies and saboteurs, like Padilla and al Marri) who are combatants by one definition (Quirin) and civilians by a different definition (GC IV). The ICRC insists that there is nobody who isn't either a combatant or a civilian, but whether that is true or not depends on which definition you give to both terms.

The example I like is a Swiss General. The Swiss are neutral about everything, but a general is a soldier who would be a combatant if the Swiss ever went to war. In any given real conflict, like Afghanistan, as a neutral he is not a combatant. However, as a uniformed General Officer he doesn't appear to be a civilian either. The problem is not solved by claiming he is something else, because we clearly don't need something else to make things even worse. What he is depends on which definition you are using.
8.23.2007 8:06pm
Anderson (mail) (www):
I would add to Howard's remarks that a major purpose behind Geneva was to avoid enabling legalistic hair-splitting that would allow a party to claim it was complying w/ Geneva while mistreating people in practice.

If there's a loophole where one is not a combatant or a civilian, then a gray area is created where the state can do whatever it likes with that person, legally. That is precisely the kind of thing that Geneva was made to put an end to.

So anyone claiming to have found a loophole has to explain, not only how it fits with some selected portion of the text, but also with the raison d'etre of Geneva in the 1st place.

(This kind of looking to the purpose of an enactment is not bogus hand-waving; courts do it all the time.)
8.23.2007 8:13pm
Howard Gilbert (mail):
The biggest loophole is that none of the Geneva conventions cover someone who is neither a POW nor a citizen of an enemy state. Specifically, GC IV Article 4 specifically excludes civilians who are citizens of a neutral or allied country. Thus Padilla who is an American, Khadr who is a Canadian, and most of the rest of the detainees from Saudi Arabia, Yemen, or Qatar are not covered by any Geneva convention. Instead, normal diplomatic relations are expected to protect them (if they even need protection). If an American joins the Foreign Legion and we go to war with France, then he is protected by GC III because the Legion is accepted as lawful combatants. However, when Hamdi joined the Taliban whether he was covered by GC III depends on whether you regard the Taliban as lawful combatants. He had joint US and Saudi citizenship, but neither qualified for coverage under GC IV.

Since the Europeans would like there to be no loophole in Geneva they have attempted to introduce into "commonly accepted international law" several principles that basically ignore the text of the Conventions and establish universal coverage by "interpretation". The "everyone is either a combatant or a civilian" rule is the result. It covers over the loopholes in the text by creating an inherently universal coverage. That causes no end of trouble when, as in the al Marri decision, a court accepts it as law and then tries to apply it blindly to one of the archetypal falls-in-the-cracks cases like spies.
8.23.2007 10:45pm