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En Banc Fourth Circuit Decides Al-Marri Case:
Last year I blogged extensively about the Fourth Circuit's panel decision in the Al-Marri enemy combatant case (see here, here, and here). The full Fourth Circuit has just handed down its en banc decision. At first blush, it seems like a mess: there's a one-page per curiam opinion announcing the result followed by more than 200 pages of ensuing concurring and dissenting opinions. (Egads, do we really have to go through all that?) Thanks to Ben Winograd for the link.

Related Posts (on one page):

  1. Thoughts on Al-Marri:
  2. En Banc Fourth Circuit Decides Al-Marri Case:
krs:
9 judges, 7 opinions... and 2 different 5-4 majorities. Lovely.
7.15.2008 1:25pm
Justin (mail):
McConnell v. FEC had 9 justices, 8 opinions, and a VARIETY of different holdings across lines. But this is up there.

I'm on page 42. This thing is forever.
7.15.2008 1:29pm
Justin (mail):
Question re: page 45 - is it correct procedure for a Circuit Court Judge to anticipate a Supreme Court holding (not yet made) by counting positions taken in different (nonbinding) opinions? My hunch is that this is too speculative to be of significant value.
7.15.2008 1:32pm
ejo:
and people wonder why the judiciary's lightning decision making process and clarity might create problems for us in a time of war. why, perhaps, the executive might be more suited to this.
7.15.2008 1:35pm
Dave N (mail):
At first blush, it seems like a mess
At second blush, it seems like mess, too.
Judge Shedd did not participate in this case.
Good for Judge Shedd.
7.15.2008 1:38pm
Justin (mail):
Inital thought re: Traxler's (5th vote opinion) stating that members of Al Queda are enemy combatants. The opinion's lack of legal thoroughness is troubling. It's unclear whether he signs on to Williams's view or Wilkerson's view (I haven't gotten up to that part yet), but if this is the 5th vote showing the holding, then the Supreme Court is almost certainly going to have to take the case, if only to provide a useful legal framework for a rule of decision.
7.15.2008 1:39pm
Dave N (mail):
Two 5-4 decisions, the common judge in both holdings being Judge William Traxler--I am guessing this makes him the "Anthony Kennedy" of the 5th Circuit.
7.15.2008 1:44pm
Bart (mail):
Exhibit 1 as to why it is an exceedingly bad idea for the judiciary to assume the traditionally military job of determining who is and is not an enemy combatant.

We can look forward to this kind of nonsense exponentially multiplied as a result of Boumediene.

Insanity!
7.15.2008 1:44pm
Justin (mail):
RE: 106-109...classified?
7.15.2008 1:46pm
Andrew J. Lazarus (mail):
The Bush lickspittles never cease to amaze me. When other countries have the military decide which lawful residents are really enemy combatants subject to secret detention, we call it a military dictatorship. Today's Bushites, promoting the Zimbabwean model of justice.
7.15.2008 1:50pm
Soronel Haetir (mail):
Given Padilla and the other case handed down with it (don't recall the name) I have a hard time believing that any majority of a lower court would even touch the idea that someone arrested under normal procedures could be handed over to military authorities and held in this manner.
7.15.2008 1:51pm
Howard Gilbert (mail):
Traxler: "Thus, on remand, the locus of al-Marri’s seizure will not forbid his classification as an enemy combatant subject to military detention or foreclose the district court from lessening the normal procedures where appropriate in the balance of the competing interests, but it is not irrelevant to the task of weighing the interests at stake and balancing the risks involved to determine what due process protections are due him in his quest to challenge his designation and continued detention by our military."

The District Court applied the process described in Hamdi. Traxler's controlling opinion holds that when an enemy combatant is captured in a civilian environment, then the District Court cannot rigidly apply rules relaxed to accommodate battlefield conditions. When conditions do not mandate relaxed rules, and when the government should have no problem accommodating more extensive process, then the District Court should not insist only on the Hamdi minimum.
7.15.2008 1:51pm
Justin (mail):
Judge Williams's dissent mistakenly argues (at 125) that under traditional habeas review, the defendant has the burden of proving that the detention is illegal. But this ignores the fact that normal habeas only occurs after a trial and verdict. The petitioner fulfills his initial prima facie case by showing that he's been detained, and the government rebuts with the evidence of a conviction. It is then up to the defendant to show that the conviction is tainted.

Here, Al-Marri has made his prima facie test - that he has been confined. To say that mere, generalish, allegations that the petitioner is an alien combat is sufficient to return the burden of proof to the defendant is the equivalent of saying that a conviction is unneccesary because the indictment itself fulfills the burden.
7.15.2008 1:54pm
Justin (mail):
Judge William's concurrance and Judge Wilkerson's concurrance are weakened by the overreliance on the AUMF. The AUMF is substantially vague. On its face, it does not (nor did Congress ever appear to intend it to) allow detentions of anyone. It simply allows "necessary and appropriate (military) force" against the organizations of the September 11, 2001 terrorist attacks. That meant, in its most natural, the ability to invade Afghanistan. Of course, the Supreme Court has ruled that some power to detain is incidental to that authority. But Wilkinson and Williams assume (without support) that the Supreme Court meant that the same power to detain exists (short of constitutional right) between foreigners pursued abroad and people pursued within the United States. The presumption of incidental need to detain is substantially less within the United States (as Judge Motz properly noted, and Judge Traxler seemed to agree, though ultimately still going with Williams/Wilkenson). Wilkinson and Williams forget that the plain language of the AUMF does not provide for detention at all, and thus their accusations that Motz is twisting the language should fall on deaf ears.
7.15.2008 2:02pm
vassil petrov (mail):
Judge Diana Motz - a modern Roger Taney?
7.15.2008 2:02pm
Justin (mail):
Judge Wilkerson's reliance on the "at home or abroad" fluff from the AUMF is something close to embarrasing.

Finally, I note that both sides seem to struggle with the conflict between Quirin and Milligan.
7.15.2008 2:04pm
martinned (mail) (www):
@Bart: As far as I can see, the judges are arguing about the law. Judges do that sometimes, in case you hadn't noticed.
7.15.2008 2:05pm
Justin (mail):
The equation of this opinion and Dred Scott is one of the sillier parallels ever made on this blog.
7.15.2008 2:05pm
Blindgambit7:
Justin:

Putting the AUMF over to the side; do you think if Congress passed a law using express language permitting aliens picked up on U.S. soil to be militarily detained such a law is Constitutional?

And, in Hamdi, doesn't the plurality say that, because detention is an incident of force, we can assume the AUMF includes a detention power?
7.15.2008 2:07pm
Justin (mail):
Both Williams and Wilkenson rely on the civil commitment portions of the Supreme Court's precedents. But the due process, as well as the standards of confinement, in those cases does not even begin to approach the troubling nature of AL-Marri's confinement, including the circumstances leading up to it (the DOJ's gaming of the system).
7.15.2008 2:08pm
Ned Ludd (mail):
The Bush lickspittles never cease to amaze me. When other countries have the military decide which lawful residents are really enemy combatants subject to secret detention, we call it a military dictatorship. Today's Bushites, promoting the Zimbabwean model of justice.



Is it true that other countries let civilian courts decide who are enemy combatants? If so, which ones?

-m
7.15.2008 2:10pm
Blindgambit7:
The Taney comparison is a little overboard, even for satire. These are hard issues, compounded somewhat by the Court's fracture in Hamdi and the administration's manner of prosecuting these cases.
7.15.2008 2:10pm
Justin (mail):
Blindgambit7:

1) The first answer depends. If deportion was part of the proceedings, sure. If the detainment actually fell within the Kansas v. Hendricks line of cases (that is, carefully done with substantial due process, to strike a balance between national security and due process rights), sure. But neither of those seemed to have occurred in this particular case.

2) The second answer is yes. But it doesn't necessarily assume that the power extends equally in all situations. That's what the word "incidental" means - it is required based on the incident.
7.15.2008 2:11pm
martinned (mail) (www):
@Ned Ludd: Q. When those alleged enemy combatans are arrested from their beds by civilian authorities within the borders of the state? A. Every democracy I know of. (Other than the US, that is.)
7.15.2008 2:12pm
merevaudevillian:
I have difficulty getting past the district court's opinion, which Judge Niemeyer cites extensively at pp. 211-12:

Despite being given numerous opportunities to come forward with evidence supporting this general denial, Petitioner has refused to do so.
* * *
Petitioner's refusal to participate at this stage renders the Government's assertions uncontested. This leaves the Court with "nothing specific . . . to dispute even the simplest of assertions [by the Government] which [Petitioner] could easily" refute were they inaccurate.
* * *

Given Petitioner's refusal to participate in the initial evidentiary process and his failure to offer any evidence on his behalf, it is beyond question that he has failed to present "more persuasive evidence" to rebut Respondent's classification and detention of him as an enemy combatant. Further, given the imbalance between the evidence presented by the parties, the Government clearly meets any burden of persuasion which could reasonably be imposed on it at this initial stage.


Al-Marri did not allow the procedures available to run their course (see Boudemiene, Roberts, C.J., dissenting). Niemeyer's opinion seems to hit the salient issue; that is, Al-Marri never took advantage of the procedures available to him, so how can the court, in a vacuum, possibly concluded that they were deficient? That is, I suppose that the court, in its infinite wisdom, might arrive at a conclusion about what process is due sans an actual execution of process. But in a high-profie, high-risk case such as this, it seems far more prudent to allow the detainee to take advantage of the procedures available and seek redress, only petitioning the appellate court should those procedures fail to render a verdict in his favor.

Instead, over-zealous detainee-rights groups have bypassed the procedures developed for detainees and seek appellate courts to enact broad pronouncements that a given set of procedures is, in all circumstances, wholly inadequate. Al-Marri, meanwhile, returns for another round of "more adequate" procedures, delaying what could have been sufficient justice the first time around. It's difficult, then, to get much past the minimal, and narrow, conclusion that the district court originally reached, at least in my humble opinion.
7.15.2008 2:14pm
martinned (mail) (www):
@merevaudevillian: I suspect the plaintiff may have felt that it was up to the Government to prove that he should be detained, rather than having him prove that he should not be.
7.15.2008 2:18pm
merevaudevillian:
martinned, I believe that the Government did, or at least made a prima facie case as such. When Al-Marri wholly failed to rebut that case, however, he chose not to contest it.
7.15.2008 2:20pm
Justin (mail):
Mere,

Given the substantial circumstances here, including the problem with al-Marri having to divulge his entire civilian case before the Government put on a scintilla of evidence and the shear lack of proving a negative (particularly when the allegations themselves are vague), it's hard to see that al-Marri's position was unreasonable. If the standard - that al-Marri must show evidence tending to disprove the Government's allegations (in what precise form is unclear) - is correct, then Niemeyer's dissent is somewhat compelling (there are other issues, but certainly it is of some merit). But since 5 Judges have rejected that approach, Niemeyer's dissent seems a little apace from the actual dispute.

The equivalent would be that in a civil case in which the government failed to prove its case, the defendant moved for a directed verdict, and the district court denies it based on the fact that the burden of proof is on the defendant. The defendant then refuses to put on a case, and the district court instructs the jury that the burden is on the defendant. Upon a conviction, has the defendant waived his constitutional arguments?
7.15.2008 2:21pm
Justin (mail):
mere, that's an interesting belief. The government concedes that it didn't put forth any case, relying solely on its allegations.
7.15.2008 2:23pm
martinned (mail) (www):
@merevaudevillian: Well, that is more or less the question at issue. The government submitted a declaration, the Rapp Declaration, which asserted certain facts. (Cf. p. 11) The magistrate judge and the district court ruled that this was enough to place the burden of proof on Al-Marri, and the panel and now the en banc court disagreed.
7.15.2008 2:23pm
Justin (mail):
martin, maybe I'm confused, but Rapp is simply listing the allegations in that Declaration, he's not outlining (even in hearsay form), any evidence of those allegations, correct? I.e., there's nothing in the declaration that looks like, "according to the interrogation of John Smith, Al-Marri had met with Mr. Smith on three occasions, and provided $45,000 in cash to Mr. Smith on that third occasion"?
7.15.2008 2:26pm
A.S.:
Is there any reason (beside a passing interest) to read any of the opinions other than Judge Traxler's? As far as I can tell, Traxler's is the one that matters.
7.15.2008 2:28pm
Justin (mail):
Confirmed, btw: "This declaration does not identify the specific source of such information. . . . That information could be provided to the Court if the Court deems it necessary." (Page #5 of the Rapp Declaration).

The Court, at minimum, should have found it "necessary."
7.15.2008 2:30pm
Sarcastro (www):
Listen people, the Constitution is pretty inconvenient in war. I mean

1. The executive can do stuff faster, which is important in war.

2. Oversight of the executive takes a lot of time, and often results in long legal opinions.

Thus, it is clear that in time of war there should never be any oversight of the executive.

This case, considers judicial oversight of the executive, and that is tatnamount to the court finding negroes are property.

Also, Justin, if the government had to put on a case, the terrorists would use the time spend briefing to bomb you. Yes, you. Cause Islamofascist will target liberals First.
7.15.2008 2:30pm
ejo:
at least none of the usuals are citing to Nuremburg as a shining example anymore. we have now gone so far beyond that standard that the slippery slope of Miranda popping up on battlefield decisions would no longer surprise.
7.15.2008 2:32pm
martinned (mail) (www):
@Justin: Indeed, hence many people's (and many judge's) concern.
7.15.2008 2:34pm
Sarcastro (www):
Mrianda is nothing! Soon, ejo, troops will have to gay marry Muslim same-sex couples on the battlefield!
7.15.2008 2:38pm
krs:
The equation of this opinion and Dred Scott is one of the sillier parallels ever made on this blog.

That's a hefty charge.
7.15.2008 2:51pm
ejo:
great analysis sarcy-now can you point to the past conflict where people making war against us were granted such extensive rights (and don't use nuremburg-war over, fewer rights). surely, an individual of your intellectual heft can come up with one. feel free to combine your intellect with martinned and anyone else.
7.15.2008 2:58pm
martinned (mail) (www):
@ejo: Read my lips: If Al-Marri had been making war against the United States, he could have been detained under the Hamdi and Padilla precedents. But under Milligan, what he did was not "making war against us".
7.15.2008 3:00pm
Sarcastro (www):
Well, if judges are crazy people who care nothing for America's war effort, and only for their own agendas, seems to me that their excitement about gay marriage will eventually spill over!

I also generally like to judge wars without a well defined endpoint or battleground by looking to previous conflicts of a similar nature. Then, when none exist, I compare it to World War II, cause that was a Good War that turned out well.

Welp, I guess it's internment camps for some, small American Flags for the rest!
7.15.2008 3:02pm
PC:
great analysis sarcy-now can you point to the past conflict where people making war against us were granted such extensive rights


The War on Drugs.
7.15.2008 3:11pm
Bart (mail):
Soronel Haetir (mail):

Given Padilla and the other case handed down with it (don't recall the name) I have a hard time believing that any majority of a lower court would even touch the idea that someone arrested under normal procedures could be handed over to military authorities and held in this manner.

martinned (mail) (www):

@Bart: As far as I can see, the judges are arguing about the law. Judges do that sometimes, in case you hadn't noticed.

The German and one American unlawful enemy belligerents in Ex Parte Quirin were arrested by the FBI and turned over to the military. The Supremes held that they had no constitutional rights under the Fifth And Sixth Amendments to a civilian trial and all the due process that goes along with such a trial.

We are creating new and very unwise law here, not following it.
7.15.2008 3:21pm
vassil petrov (mail):
The equation of this opinion and Dred Scott is one of the sillier parallels ever made on this blog.

Not Dred Scott, sir, Ex parte Merryman (1861).
7.15.2008 3:31pm
Sarcastro (www):
Bart cites some good precident! Scalia might not think it was the Court's finest hour, but he's always been a bit of a leftist.
7.15.2008 3:32pm
Bart (mail):
I like Scalia think the Court erred in denying the American citizen constitutional rights. However, invading foreign enemy belligerents have never been granted constitutional rights to be treated as civilian criminal suspects until Boumediene.
7.15.2008 3:37pm
Sarcastro (www):
I wonder why the Court took Boumedine at all? I mean, there were countless examples of enemy combatants in previous wars! The area was FULL of precident!
7.15.2008 3:46pm
martinned (mail) (www):
@Bart: Let's see, on the one hand we have members of the German military dropped off in a submarine to blow up US military installations, and on the other hand, we have civilians who were lawefuly present in the country, but seeking to attack US military targets in order to support the Confederacy. Which of these is more like Padilla? And, more interestingly for now, which of these is more like Al-Marri?
7.15.2008 3:50pm
Andrew J. Lazarus (mail):
@Ned Ludd
"Is it true that other countries let civilian courts decide who are enemy combatants? If so, which ones?"

In most circumstances, Israeli civilian courts must confirm administrative detentions of Palestinians taken under al-Marri's circumstances.

Which Democracies allow apparently-lawful residents to be incarcerated indefinitely on the basis of a hearsay charge sheet that's assumed to contain gospel truth until the defendant can, from his cell where held incommunicado, prove otherwise? I'll give you the Democratic People's Republic of Korea, but that's all I can think of.
7.15.2008 4:03pm
ejo:
ie. sarcy can't think of one. the example is a simple explanation of why judges aren't qualified to make the decisions they now seem to think they can make. why isn't there a great deal of such precedent, sarcy-past courts had some degree of sense as to what their limitations were. we didn't grant such rights in WWII, if that is the good war we are judging the present on-on a historical note, do you think we knew in 1941 that WWII would end in 1945?
7.15.2008 4:03pm
martinned (mail) (www):
@ejo: Don't you think the first question should be whether there is any precedent for a president claiming to have this kind of authority? Have judges ever been called upon to answer this kind of question? The answer is that there are only a few precedents, under US law, such as Eisenträger and Milligan, which set the boundaries as I and other commenters have described. If you want to talk other jurisdictions, we can consider Northern Ireland or Israel. Beyond that, no democracy has ever, to my knowledge, even tried to do this kind of thing.
7.15.2008 4:25pm
Sarcastro (www):
ejo is correct, there is no counterexample.

Some might say this is because enemy combatants are an invention of the current administration, and thus Courts only got to address them recently. They clearly don't know that courts of the WWII era sensibly chose not to decide cases based on concepts that didn't yet exist.

When a contemporary case with this novel new status occurs, courts should follow the previous precident of not addressing it. Anythign less is clearly judicial activism.

By similar logic, as I can't come up with a picture of me not winning the Nobel Prize for Wit, I guess I'm a big winner!
7.15.2008 4:30pm
Bart (mail):
martinned (mail) (www):

@Bart: Let's see, on the one hand we have members of the German military dropped off in a submarine to blow up US military installations, and on the other hand, we have civilians who were lawefuly present in the country, but seeking to attack US military targets in order to support the Confederacy. Which of these is more like Padilla? And, more interestingly for now, which of these is more like Al-Marri?

Both al Marri and all but one of the Qurin petitioners were unlawful foreign enemy belligerents, not civilians. Both were members of an enemy against which the United States is at war. al Marri does not dispute the evidence indicating that he was attempting to raise funds for al Qaeda and possessed plan in a computer file labelled "Jihad Area" to produce poison hydrogen cyanide gas.
7.15.2008 4:30pm
Andrew J. Lazarus (mail):
@Bart: The Quirin defendants admitted the claim they were members of the German armed forces who had sneaked into the country. Al-Marri specifically denies the charges against him.

So, the claim that Al-Marri is a foreign enemy belligerent would seem to be an issue. How should this issue be resolved? Before a neutral decisionmaker, or on the basis of hearsay from God-knows-where (maybe some other poor bastard's torture session)? Americans used to answer this question differently from Mugabe, but not you.

The statement that al Marri does not dispute the evidence is, AFAICT, unsourced. Indeed, what has been presented against him, viz., anonymous hearsay, is not "evidence" in the usual meaning of the word. Al Marri was faced with a laundry list of unsourced accusations. He is looking for a venue in which to contest those allegations for which the Government has some genuine evidence, which is a far cry from saying he does not dispute them.

I notice you have not contested the claim you beat your wife. Compare and contrast.
7.15.2008 4:46pm
martinned (mail) (www):
@Bart: Like Anderw J. Lazarus said, you're begging the question. Al-Marri has not taken up arms against the United States, and nothing in the Rapp Declaration claims that he did. He is not, nor has he ever been, partof any kind of arm or militia waging war against the United States. Unless the contrary is proven, he has the right under the 5th amendment, to be treated the same way as, say, the Oklahoma City bomber(s).
7.15.2008 5:00pm
Oren:
Unless the contrary is proven, he has the right under the 5th amendment, to be treated the same way as, say, the Oklahoma City bomber(s)
Who was, in fact, part of a militia with the stated goal of forcibly overthrowing the US gov't, I might add.
7.15.2008 5:09pm
Bart (mail):
Andrew J. Lazarus (mail):

@Bart: The Quirin defendants admitted the claim they were members of the German armed forces who had sneaked into the country. Al-Marri specifically denies the charges against him. So, the claim that Al-Marri is a foreign enemy belligerent would seem to be an issue. How should this issue be resolved? Before a neutral decisionmaker, or on the basis of hearsay from God-knows-where (maybe some other poor bastard's torture session)?

Under the Geneva Conventions, the military need only hold a brief evidentiary hearing. The United States military employs far more process than is required under the law of war.

BTW, the case against al Marri was derived primarily from physical evidence on his computer and telephone cards. al Marri has never disputed this evidence. Justice was prepared to go to trial to prove civilian criminal charges beyond a reasonable doubt. All the military needs is to prove under the far lesser standard of a preponderance of evidence is the fact that al Marri was working with al Qaeda. That is all that is needed to detain al Marri as a generic POW.
7.15.2008 5:27pm
ejo:
american citizens fought for the axis powers in WWII-shouldn't they, similarly, have been given these protections and have been able to challenge their detentions in US courts-it really isn't anything unique in the great big world we live in. you couldn't have found a lawyer or a judge in the past who would have had the arrogance to raise the issue. no problem with doing it today-it's a badge of honor.
7.15.2008 5:30pm
Bart (mail):
martinned (mail) (www):

@Bart: Like Anderw J. Lazarus said, you're begging the question. Al-Marri has not taken up arms against the United States, and nothing in the Rapp Declaration claims that he did. He is not, nor has he ever been, partof any kind of arm or militia waging war against the United States. Unless the contrary is proven, he has the right under the 5th amendment, to be treated the same way as, say, the Oklahoma City bomber(s).

al Marri only needs to be found to be a member of al Qaeda to be held as a generic prisoner of war for the duration of the conflict with al Qaeda. He does not have to bear arms to be so held. The majority of most military organizations are not frontline combat troops, but rather support personnel like al Marri. However, under the law of war, they can all be held as generic POWs.
7.15.2008 5:31pm
Andrew J. Lazarus (mail):
Bart is at it again.

Under the Geneva Conventions, the military need only hold a brief evidentiary hearing.
First, this makes sense only if the military is the correct branch to be trying him in the first place. In the case of battlefield detainees, that's obvious. With Quirin, there was copious evidence that this was appropriate, and moreover the defendants did not deny it. In Al-Marri's case, all you've done is beg the question again: who and how is it decided that Al-Marri is an enemy combatant?

Second, the statement that the GC requires only a brief evidentiary hearing is your biased interpretation. The GC refer to a "competent tribunal" and in practice this has included rights to conduct a defense more generous that Al-Marri received.
7.15.2008 7:02pm
Andrew J. Lazarus (mail):
@ejo: I dunno, the Quirin defendants got some of the best attorneys that money didn't have to buy. Back then, it was viewed as putting the best of the Anglo-American legal tradition on display. Under Bush, it's "You're with us or you're against us" all the time, from the defense bar to investigating corruption. Is it that no one before had such effrontery, or that no Administration before labeled people enemy combatants on flimsy hearsay, some extracted under torture?
7.15.2008 7:19pm
Bob from Ohio (mail):
Al-Marri remains in the brig. After cert petition and possible SC case and remand and appeals, 3 more years at least before the merits are reached.

Now, if Al-Marri had decided to co-operate with the procedures at the District Court, he may have won if he is as innocent as his defenders here assert. So, he would have been released today.

Who won the case again?
7.15.2008 7:23pm
elim:
reading Quirin, it is interesting to note the reference to a long history and recognition of the category unlawful combatants, with citizenship irrelevant to the discussion of whether one was such an individual. I thought terms like unlawful combatant were dreamed up by bush and could never be applied to a citizen-I guess wisdom wasn't just invented by Justice Kennedy.
7.15.2008 8:37pm
elim:
who were those counsel by the way-a quick glance and a google shows the sides were represented by military counsel. the AG for the US and a Colonel for the petitioners. are you sure of the assertion you are making?
7.15.2008 8:44pm
Oren:
al Marri only needs to be found to be a member of al Qaeda to be held as a generic prisoner of war for the duration of the conflict with al Qaeda. He does not have to bear arms to be so held. The majority of most military organizations are not frontline combat troops, but rather support personnel like al Marri. However, under the law of war, they can all be held as generic POWs.
In that case, he cannot be held in a brig nor questioned (name and rank only) and will have to be released when hostilities cease. POW status entails significant protections.
7.16.2008 4:43pm
Oren:
al Marri only needs to be found to be a member of al Qaeda to be held as a generic prisoner of war for the duration of the conflict with al Qaeda. He does not have to bear arms to be so held. The majority of most military organizations are not frontline combat troops, but rather support personnel like al Marri. However, under the law of war, they can all be held as generic POWs.
In that case, he cannot be held in a brig nor questioned (name and rank only) and will have to be released when hostilities cease. POW status entails significant protections.
7.16.2008 4:43pm
Andrew J. Lazarus (mail):
elim, assuming you are talking to me, the Colonel who defended Quirin was a highly-regarded civilian lawyer before the war, but other members of the bar served as well. I'll look for a cite.
7.16.2008 5:30pm