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Thoughts on Al-Marri:
I've just skimmed the Fourth Circuit's Al Marri decision, and here are some tentative thoughts about the case.

  First, it looks like Judge Traxler is the only judge to be in the majority on both issues and that his concurring opinion is (mostly) the binding one. It starts at page 64 of the slip opinion, after Judge Motz's very long concurring opinion. Traxler concludes that the AUMF authorizes Al-Marri's detention: The AUMF was designed to allow the detention of Al Qaeda suspects. As I blogged last year, I think this is correct.

  Next, Judge Traxler concldues that Al Marri hasn't received enough process under the Hamdi case. Judge Traxler applies the balancing approach of Hamdi and concludes that Al Marri should get much more process than Hamdi did. He then offers a lot of general guidance on how much process would be enough — Cf. Justice Kennedy's opinion in Boumediene — but it looks like it's a pretty complex balancing framework that leaves a lot of questions for the district court to figure out.

  Comparing the binding opinion of Judge Traxler today to the panel opinion last year, I think the Traxler approach is much more defensible than the panel opinion. I don't know if Judge Traxler's balancing is correct — the nature of the ad hoc balancing intoduced by the Hamdi case is that there is no one correct answer — but Judge Traxler's opinion seems much more consistent with the teachings of Hamdi than was the original panel decision.

  If the SG decides to petition for certiorari, I would think the Supreme Court would likely take the case. As best I can tell, the Fourth Circuit is hopelessly divided, and the judge in the center imposed a complex balancing test that's pretty unclear. It's just super messy, and there's a good case that the Supreme Court needs to step in and clear it up. If DOJ wants cert, they'll probably get it.

  On other hand, a cert grant may lead to a Supreme Court decision that is hopelessly divided, with a judge in the center imposing a complex balancing test that's pretty unclear. That would be a lot worse than getting such an outcome from a court of appeals. Plus, my recollection is that there aren't any other similarly situated individuals in the system, or at most there is only a handful. Given that the case actually impacts so few people, it may be better to let the lower courts figure this one out and save the possibility of Supreme Court intervention for another day if we end up in a world with more Al Marri's down the road.

  Finally, I hope the Bush Administration will think creatively about how the Al Marri opinions handed down today could be used to bring the war on terror to a quick and victorious end. In particular, the opinions could substitute for waterboarding. Instead of waterboarding the bad guys, the government should force Al Qaeda detainees to go through all 216 pages of the different decisions in one sitting. I would think that even the hardest of Al Qaeda terrorists will break down and confess before making it through, saving many American lives.

Related Posts (on one page):

  1. Thoughts on Al-Marri:
  2. En Banc Fourth Circuit Decides Al-Marri Case:
MJG:

Instead of waterboarding the bad guys, the government should force Al Qaeda detainees to go through all 216 pages of the different decisions in one sitting. I would think that even the hardest of Al Qaeda terrorists will break down and confess before making it through, saving many American lives.


I enjoyed this. As a Court of Appeals clerk-to-be, I wonder about the soundness of this sort of thing. Obviously this is the kind of thing that - in a slightly different context - CJ Roberts ha said he wants to avoid. Yet for difficult areas of law (especially with ambiguous Supreme Court precedents to follow), is it really just ego that leads to this messy seriatim approach, in that every judge wants to throw in their two cents?

I wonder if there isn't at least some virtue to seeing and reading all these varying opinions: though it is obviously not a ton of guidance for lower courts, does it increase the chance of getting it right next time as a consensus develops as the opinions (and others) are studied? From the outside it also seems more difficult to gather consensus when a Court of Appeals sits en banc (see those recent 2nd Circuit concurrence and dissents from the denial of a rehearing en banc), than with the Supreme Court where they sit together on every case. Dunno.
7.15.2008 3:52pm
OrinKerr:
MJG,

Good questions. I tend to think it's a balancing act. On one hand, different perspectives can be very helpful, so clear and straightforward discussions of of differences are desirable. I think the difficulty with the Al Marri decision is that most of the opinions are about twice as long as they should be. There's a lot of throat-clearing, asides, and repetition. So I think the goal should be to say important things but to say them once and do so concisely. But these sorts of things are questions of style, so opinions differ.
7.15.2008 4:01pm
tvk:
216 pages in one sitting -- cruel and unusual punishment.
7.15.2008 4:11pm
Dave N (mail):
My initial thought was that the preliminary conference vote was 6-5 for a holding that the President was not authorized to hold al-Maari as an enemy combatant even if the allegations were true and that Judge Motz was assigned to write the opinion.

Then, sometime during the drafting process, Judge Traxler became convinced that the opinion was wrong, but was unwilling to merely affirm the district court.

The "wheels" of the opinion having come off, it then became a free-for-all, with two holdings necessary instead of one--and 7 decisions, rather than 2. I make this observation because Judge Motz's "concurrence" certainly has the feel of a Court opinion in its drafting style, particularly the use of the royal "we."
7.15.2008 4:12pm
Justin (mail):
Of course, Al-Marri may petition for cert.
7.15.2008 4:20pm
Soronel Haetir (mail):
One thing I find interesting is that opinions seem to have grown in length at all levels the closer to modern times you look. Although I've read far more recent decisions than ones prior to say 1980, I find the difference marked and striking.

Somewhat akin to the discussion of scholarship or lack thereof in the Heller opinions. Has anyone else noticed this trend?
7.15.2008 4:39pm
AF:
Al-Marri can't get cert. He is the prevailing party on the appeal.
7.15.2008 4:50pm
ohwilleke:
"Given that the case actually impacts so few people, it may be better to let the lower courts figure this one out and save the possibility of Supreme Court intervention for another day if we end up in a world with more Al Marri's down the road."

In many ways this is very wrong. The Padilla case, which is good law because the sua sponte attempt of that panel to vacate its opinion was overruled, and Al-Marri impact more people than all of the other war on terrorism cases combined. These decisions allow someone in a non-war zone, within U.S. states, without any review other than habeas corpus (which in this case is being provided more than five years later), to be detained indefinitely based upon uncorroborated executive heresay stating that someone is an enemy combatant, without any sure guarantee that the person detained will be informed of the charges against them, not because that person is allegedly a threat, but because that person is allegedly a potential source of information.

There is also, it seems to me, a good chance that the U.S. Supreme Court would be more favorable to Al-Marri than to individuals apprehended abroad. The U.S. Supreme Court has ruled in ways since the 4th Circuit made its Padilla decision, most notably Boumedine, that seem to implicitly question its legal conclusions.
7.15.2008 4:58pm
NR:
Al-Marri can't get cert. He is the prevailing party on the appeal.

Interesting question. The answer may not be so clear. See here at pages 87-88.
7.15.2008 5:23pm
Dave N (mail):
Al-Marri can't get cert. He is the prevailing party on the appeal.
I believe you are wrong. Al-Marri did not win a complete victory and could seek certiorari on the portion of the case he lost.
7.15.2008 5:28pm
Originalism Is Useful (mail):

In many ways this is very wrong. The Padilla case, which is good law because the sua sponte attempt of that panel to vacate its opinion was overruled, and Al-Marri impact more people than all of the other war on terrorism cases combined. These decisions allow someone in a non-war zone, within U.S. states, without any review other than habeas corpus (which in this case is being provided more than five years later), to be detained indefinitely based upon uncorroborated executive heresay stating that someone is an enemy combatant, without any sure guarantee that the person detained will be informed of the charges against them, not because that person is allegedly a threat, but because that person is allegedly a potential source of information.


Andrew,

It is fascinating that the War on Terror Cases have been sensationalized in the press as tremendous losses for the Government and the Bush administration in particular. You are correct, in my estimation, that the War on Terror Cases have been generally favorable to what valid governmental interests have been asserted and generous to the Bush administration in its court-driven political advocacy. Even in a post-Boumediene al-Marri decision, AUMF is upheld. Judge Motz's inversion of the constitutional avoidance doctrine is repudiated. Judge Motz's ad hoc political philosophy is rejected. The legal errors in Judge Motz's opinion are spotlighted. And the vindication of al-Marri's rights results in a meaningless and redundant hearing on papers that al-Marri is highly likely to lose. In a sane world, this would be considered a resounding victory for the Bush administration.
7.15.2008 5:39pm
PLR:
My initial reaction is gratification that the Senate Judiciary Committee has dragged its heels on nominees to the Fourth Circuit.
7.15.2008 5:49pm
Justin (mail):
I presume al-Marri would seek certiori on the part he didn't prevail on, if he so sought. The Court may not grant it as not ripe at this time, but that's in their discretion.
7.15.2008 5:51pm
Originalism Is Useful (mail):
My initial reaction is gratification that the Senate Judiciary Committee has dragged its heels on nominees to the Fourth Circuit.

Why? Because you would like to see a more liberal Fourth Circuit? Or because the nominees that would pass with this Congress are likely too moderate?
7.15.2008 5:55pm
Originalism Is Useful (mail):
UPDATE 5:45 p.m. The decsion by the Fourth Circuit Court apparently is now headed for the Supreme Court. Lawyers for the detainee involved in the case said that, while still studying the ruling, they do expect to ask the Supreme Court to review the part of the decision upholding presidential detention power over those seized inside the U.S. The Justice Department, although failing to get the case dismissed, seemed to indicate that it does not intend to challenge that part of the ruling in the Supreme Court. In a statement, a Department spokesman praised the overall decision, and said, as to the ruling's assurance of a new chance to challenge the basis for the detention, that it "will respond to Mr. Al-Marri's contentions on remand."

———————-
7.15.2008 6:05pm
db:
Justin, Dave, et al.:

Your exchange is beside the point--at least if meant to focus on the requirements for al-Marri to be able to seek certiorari (and not on the likely prospects of his petition). 28 USC 1254 permits "any party" to a "case[] in the court[] of appeals" to petition for certiorari. That includes a prevailing party. See Judge Easterbrook's recent opinion in Latham v. United States (pp. 3-4).
7.15.2008 6:19pm
AF:
The Court may not grant it as not ripe at this time, but that's in their discretion.

Everything is within the Court's discretion. Granting cert to a habeas petitioner whose petition has been dismissed by the district court and that dismissal has been vacated and remanded by the court of appeals is extremely rare. "As a general rule, a party may not appeal from a favorable judgment simply to obtain review of findings it deems erroneous." Mathias v. Worldcom Techs., 535 U.S. 682, 683-684 (2002.

Though it is true that all bets are off with war on terror cases.
7.15.2008 6:22pm
Justin (mail):
AF, there's a difference between a finding it deems erroneous and a judgment it deems erroneous.

To put it another way, if there were cross motions for summary judgment, and one party was granted SJ, and the other appealed, and then the appeals court's ruling denied both motions and remanded for trial, both parties prevailed on one judgment and lost on another. Same here.
7.15.2008 6:27pm
krs:
very interesting, db.
7.15.2008 8:01pm
Bart (mail):
I just finished reviewing the Traxler opinion. The reason that that his analysis of the civilian due process due an enemy belligerent is such an "on the one hand, then on the other hand" indeterminate hash is that civilian habeas corpus was never meant to be applied to the detention of generic prisoners of war.
7.15.2008 8:03pm
ohwilleke:
@Originalism Is Useful

If Padilla's case is any indication, the government will drop its enemy combatant designation of Al-Marri before revealing at trial the thinness of the trail of evidence it had to support the Rapp Declaration. The government isn't really afraid that Al-Marri is a threat to national security that requires enemy combatant detention and never was, and any information he might have had is now so dated that it is useless.

Padilla and Al-Marri were guinea pigs for whom the government has had readily available back up plans (criminal prosecutions for both, and deportation for Al-Marri) in an experiment to see how much law the administration could make in favor of a domestic right to preventive/investigatory detention should it be desired in the future. Padilla could have been charged criminally, if the dirty bomber allegations for his original enemy combatant detention had any basis, and Al-Marri was plucked out of a pending criminal prosecution.

All other domestic terrorism suspects (and there have been many that better fit the enemy combatant bill) have been prosecuted criminally. The enemy combatant card has mostly been a plea bargaining tool

The government's decision not to seek certiorari in this case is a measure of its strategy. It has gotten as good of a precedent as it is likely to get in Al-Marri from the 4th Circuit (including a reaffirmation of the validity of the Padilla holding) and doesn't want to blow the case in the last few months before the administration ends. Indeed, I wouldn't at all be surprise to see Al-Marri deported and enemy combatant status revoked on or about January 19, 2008 (or at the last possible moment before a point of no return in the U.S. Supreme Court, if sooner), in order to preserve that precedent. After all, in the wake of the first SCOTUS Padilla case on venue, an adminstration needs favorable precedent in only one U.S. Court of Appeals Circuit which it can choose be carefully selecting a place of detention.

Even if some future U.S. Supreme Court overrules the Padilla/Al-Marri precedents, an adminstration has bought itself years of enemy combatant detention until the matter goes from trial court to court of appeals (both bound by those precedents) to grant of certiorari to oral arguments to issuance of a negative opinion, to implementation of that mandate.
7.15.2008 8:16pm
Andrew J. Lazarus (mail):

Civilian habeas corpus was never meant to be applied to the detention of generic prisoners of war.

Civilians lawfully in the USA were never meant to be labeled enemy combatants on the President's say-so.

See, if you read it my way, you get to keep your Constitutional Right not to have President Obama declare you an enemy combatant and throw your butt in the brig, much as I like the idea of your getting some on-the-job Constitutional training.
7.15.2008 8:21pm
ohwilleke:
@Bart:

When was the last time a legal alien in any country, who was admittedly never the part of any regular military force, was detained as a prisoner of war for flunking college classes, engaging in credit card fraud and suspicion of intent to commit as yet unplaned terrorist acts?

People suspected of being sabatuers and spies in the U.S. have, in the post-Milligan era normally been prosecuted for espionage and/or treason. Some have been executed for those charges (e.g. the Rosenbergs). The exception, when admitted members of the German military entered the U.S. in disguise during World War II, proves the rule. They were "enemies" merely by virtue of being Germany citizens, and "combatants" merely by virtue of being soldiers. The only question was whether they were entitled to prisoner of war status and the answer was no (after they were given habeas corpus proceedings which SCOTUS unanimously agreed that they were entitled to have).

Also, most prisoners of war want to stay that way, because it is obvious to all involved that they were soldiers (usually they get that way by surrendering en masse on a battlefield, not by being plucked individually from a domestic criminal prosecution), and a prisoner of war status is superior to execution for murder or life in prison for attempted murder, because one lacks combat privilege. Further, acknowledged prisoners of war, post-Geneva, get better treatment than the U.S. has afforded its detainees, or for that matter, its domestic criminal convicts.

A POW's fellow inmates are his comrades in arms. A criminal convict's fellow inmates are rapists and murders who are likely to beat you up or try to sodomize you.
7.15.2008 8:30pm
cathyf:
Civilians lawfully in the USA were never meant to be labeled enemy combatants on the President's say-so.
So all those Confederate POWs held in Union POW camps were just a mass delusion?

There is this bizarre assumption that acts of war can never happen in American territory, and POWs and unlawful combatant prisoners must be detained overseas to qualify as enemy combatants. Just because battles haven't taken place on US soil in recent memory doesn't mean that they can't and that the laws of war don't apply here.
7.15.2008 9:28pm
MarkField (mail):

So all those Confederate POWs held in Union POW camps were just a mass delusion?


They weren't civilians. They didn't think they were civilians and their captors didn't either.

General Orders 100 included the following relevant definitions:

Art. 49: "A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation.

All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country; all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war."

Art. 50: "Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such."

Art. 51: "If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorized levy en masse to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war."

Art. 56: "A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity."

Art. 75: "Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The confinement and mode of treating a prisoner may be varied during his captivity according to the demands of safety."
7.15.2008 10:38pm
Andrew J. Lazarus (mail):
@cathyf, I must be missing something. I thought the Union POW camps held Confederate soldiers.

I will agree that in principle unlawful combatants may be detained within the USA, e.g., spies. However, in all of the cases discussed here (e.g., Quirin), the defendants admitted that they were combatants. There was also massive evidence to prove that, if it were an issue. As ohwilleke explains, generally being a combatant POW is better than being a civilian, so this nightmare of millions of German POWs filing lawsuits is a mere red herring.

In Al-Marri's case, there seems to be a significant issue whether he is an enemy combatant as a saboteur. The government's position has been either that he has no right to challenge this classification at all, or in the alternative, that the government's string of unsourced, uncorroborated hearsay (some obtained under torture) is to be presumptively true, and that Al-Marri, held incommunicado, is required to rebut it.

Like many of the Warren Court decisions, this decision is meant to rein the government in from practices that are dereliction of duty to uphold the laws, if not actively destructive of them.

Which Bush Remnant commenters would like to renounce their right to habeas corpus and accept indefinite detention on the say-so of the Executive, whoever that may be in future? Sign up here; full name preferred.
7.15.2008 10:40pm
MarkField (mail):

There is this bizarre assumption that acts of war can never happen in American territory, and POWs and unlawful combatant prisoners must be detained overseas to qualify as enemy combatants. Just because battles haven't taken place on US soil in recent memory doesn't mean that they can't and that the laws of war don't apply here.


I think you're misunderstanding the issue. Of course acts of war can occur on US soil; who would deny Pearl Harbor? That's not what this dispute is about, though. This dispute is about how to treat those captured in the course of such acts. There are two basic options (simplifying somewhat): treat them as POWs under (now) the GC; or charge them with a crime and try them. If the latter, the proper venue would be the ordinary courts of law, since those are open and available. If, because of military necessity, the courts were closed, then military commissions could conduct the trials.
7.15.2008 10:43pm
Kazinski:
Lazarus:

However, in all of the cases discussed here (e.g., Quirin), the defendants admitted that they were combatants.

So they only thing that matters is what the detainee admits to? That determines the process under which they are adjudicated and detained? That is why they MCA created commissions to determine the detainee's status. Letting the detainee pick and choose their process by deciding what to admit and what to deny is just mind boggling.
7.15.2008 11:37pm
Andrew J. Lazarus (mail):
No, Kaz, the Administration has created sequences of kangaroo courts where the deck is stacked. The real courts appear to be sick of the charade.

For someone captured on the battlefield, a military tribunal is an appropriate place. For a civilian resident of the USA, would you say the same? Raise your right hand an repeat after me: I, Kazinski, agree to forfeit my right to access to the civilian courts any time the Executive Authority declares me an enemy combatant.
7.16.2008 12:04am
George Weiss (mail) (www):
after each one of these cases, academics and pundits routinely like to point out that the main balancing and policy issue behind this is whether terrorism should be treated under the criminal laws or the laws of war.

There has never been such a fatal misunderstanding in my opinion.

First, if you really believe in the laws of war-then you should accept the genva conventions. Ha! the very security hawk types advocating using the law of war for indefinite detention are the very same people that-when it comes to how to treat detainees-immediately say that the combatants are not simple combatants but "illegal" combatants..necessarily admitting that the law of crime is relevant when they want it to be-and the law of war is relevant when they want it to be.

Second, the issue of war vs crime often centers around questions of who should make determinations of guilt or detention. Should it be the president (executive branch-military? Should it be the federal courts? Should it be special courts?

But all this focus on the WHO of the decision makes us all loose sight of the HOW of the decision. It doesn't particularly matter if its the courts or the president that makes a determination of my detention-if the standard is that the gov has some hearsay evidence to establish that I'm a terrorist. If thats the standard-its always going to be the same answer-no matter WHO makes the decision. Further, if the standard is that the accused gets a full trial with all the normal protections etc etc..it doesn't really matter if its a special military court or the courts doing the trial.

Terrorism cases like Hamdi, Hamdan, Padilla, Boumediene, etc.and now this case all seem to turn on the authority of the executive branch given certain facts. Facts such as that the habeus petitioner aided al queda or fought alongside al queda etc.. Such facts are taken as established (despite the fact that the very case concerns how to establish those facts) and the case turns on how we then go about giving process or no process to that person-who has already deemed to be in the special category.

How do we know that these people were associated with al queda in the first place enoguh to be in the special 'enemy combatant' category? how do we know, in the case of hamdi, that he fought alongside the taliban? (we now know what the evidece was for padilla-enogugh to convict) How do we know what they were planning? In all these cases, the answer is usually classified information based on intelligence information-which is presumably hearsay. Why are we then taking it as a given for the purpose of, after the fact, deciding what process was owed the person? The person has already lost if we are assuming hamdi fought on the battlefied alongside the taliban?

why doens't there seem to be a question of what information we need in order to decide a person is in the special category that we are talking about in the first place.

Hamdi tried to deal with this by telling us there is a sliding scale based on-get this- the FACTS OF THE CASE!

thats the fundamental problem with hamdi and most of these other cases-its tells us to do a balancing or sliding scale test of the process due a person based on facts such as what the person did and where he is caught and what security interests are really at risk-without yet knowing what those facts are! The court makes a determination of the facts mostly based on what hes accused of doing-not what it thinks he actually did do.

Imagine the government decides one day that its intelligence liked me to sadam hussen's baath party. I am placed for indefinite determination. The focus would then be, given that I'm affiliated with the bath party-what rights do i have? But thats out of order-the first question is whether I'm really associated with the Baath party in the first place.

where is our guide to determining who is and is not what the government says he is?
7.16.2008 1:19am
Bill Dyer (mail) (www):
Prof. Kerr wrote, with tongue in cheek,

Instead of waterboarding the bad guys, the government should force Al Qaeda detainees to go through all 216 pages of the different decisions in one sitting. I would think that even the hardest of Al Qaeda terrorists will break down and confess before making it through, saving many American lives.


I share that sentiment, but in fact, every page of every such confused, meticulous legal decision is viewed by our enemies as grounds for exultation — a vindication of the bravado with which Khalid Sheikh Mohammed declared upon being captured, "I'll talk to you guys in New York when I see my lawyer!"
7.16.2008 3:16am
Justin (mail):
Yes Bill, it turns out they *love* our freedom, and so the only possible good policy is to turn our country into a religious caliphante with no rights. Oh, wait....
7.16.2008 8:58am
ejo:
nope, they are just bright enough to know they stand a better chance with the american legal system than fighting our soldiers. the former doesn't even realize they are the enemy. by the way, MF, looking to Quirin, the Court noted the status of unlawful combatant and indicated it was irrelevant as to whether or not they were citizens. apparently, citizens fighting for the enemy isn't a concept invented in the war on terror. thus, treating the "unlawful combatant" as a POW or a criminal are not the only two choices, it is just the choices accepted by folks who don't know any better-but, of course, they were only fighting the axis powers back then in a world war, how smart could they have been compared to the folks deciding cases now?
7.16.2008 9:43am
Bart (mail):
Andrew J. Lazarus (mail):

BD: Civilian habeas corpus was never meant to be applied to the detention of generic prisoners of war.

Civilians lawfully in the USA were never meant to be labeled enemy combatants on the President's say-so.

Civilians are those who are unaffiliated with either combatant in a war. al Marri was affiliated with al Qaeda, a foreign group with which the United States is at war. Furthermore, al Marri was in the United States unlawfully under false representations.

(link) ohwilleke:


People suspected of being sabatuers and spies in the U.S. have, in the post-Milligan era normally been prosecuted for espionage and/or treason.

Enemy spies have traditionally been executed under the laws of war. However, we entered into an unofficial understanding with our European rivals and enemies that we would not execute their spies if they would not execute ours. Also, spies are usually protected under diplomatic immunity.

We do not have similar understandings or diplomatic relations with al Qaeda, a terrorist group whose goal is the mass murder of our citizens and who tortures to death our POWs.
7.16.2008 10:06am
Bart (mail):
MarkField (mail):

So all those Confederate POWs held in Union POW camps were just a mass delusion?

They weren't civilians. They didn't think they were civilians and their captors didn't either. General Orders 100 included the following relevant definitions [concerning POWs]

You are citing the articles of Lincoln's General Orders 100 concerning the treatment of uniformed enemy soldiers. Articles 82 and 83 apply to those like al Marri:

SECTION IV

Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

Art. 83.

Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

As you can see, the United States used to treat unlawful combatants such as la Marri to a short military hearing followed by a summary military execution.
7.16.2008 10:16am
Andrew J. Lazarus (mail):
Bart, you continue to assume the conclusion you desire.
al Marri was affiliated with al Qaeda, a foreign group with which the United States is at war. Furthermore, al Marri was in the United States unlawfully under false representations.
Neither one of these statements has been proven before any neutral decision maker. I am left asking again: are you willing to treat as an enemy combatant, i.e., subject to permanent detention, an apparently lawful US resident, including citizens, just on the Executive's essentially irrebutable say-so? Until you answer how you arrive at your conclusion that al Marri is affiliated with AQ and what rights al Marri has if he does not agree with your conclusion, everything you post is empty.
7.16.2008 10:26am
cboldt (mail):
-- Also, spies are usually protected under diplomatic immunity. --
.
Your posts are some of the most entertaining ones that I happen upon.
7.16.2008 10:43am
Bart (mail):
Andrew J. Lazarus (mail):

Bart, you continue to assume the conclusion you desire.
al Marri was affiliated with al Qaeda, a foreign group with which the United States is at war. Furthermore, al Marri was in the United States unlawfully under false representations. Neither one of these statements has been proven before any neutral decision maker.

Until Boumediene, these determinations were always made by the military and not civilian courts. Why do you believe that one is more or less "neutral" than the other?

In any case, we are not potted plants. We can make our own determinations of the evidence for the purposes of this discussion. The evidence appears to be very straight forward to me. If you would like to dispute the evidence that al Marri has not, then go right ahead.
7.16.2008 10:44am
Howard Gilbert (mail):
Al Marri was found to be an enemy combatant by a US District Court. That decision has been overturned and the case is remanded for a second determination. However, the question before the court is whether he is an enemy combatant and not whether the executive can detain him on its view that he is an enemy combatant. Clearly a US District Court is a neutral decision maker.

The Fourth Circuit believes that more and better evidence is required for this determination. On remand, the government will be given a chance to present such evidence. Obviously the government should be given a chance to make its case, just as al Marri should be given a chance to make his case.

Although in general it is a mistake to assume allegations, in nearly every detainee case there has been some motion for summary judgement based on the claim, as in this case, that even if what the government says is true that the law does not allow detention. Such a claim was made in this case and the Fourth Circuit rejected it. The allegations if true would be sufficient to authorize detention. So while the facts have not been established in court, this case cannot be dismissed without a determination of the facts.
7.16.2008 10:46am
Andrew J. Lazarus (mail):

Your posts are some of the most entertaining ones that I happen upon.
Hunh? It's routine to send spies under diplomatic cover (e.g., military attaché). When caught, they're expelled as persona non grata. What am I missing here??
7.16.2008 10:48am
cboldt (mail):
-- What am I missing here? --
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I don't disagree that some diplomats act as spies and are deported when found out. I just find the juxtaposition of "Enemy spies have traditionally been executed under the laws of war" and "spies are usually protected under diplomatic immunity," appearing in close proximity, to be entertaining, and even humorous noise in the debate over the al Marri case. YMMV.
7.16.2008 11:12am
Bart (mail):
cboldt:

I apparently needed to be clearer. I was contrasting the recent understandings and diplomatic protections granted to spies against the traditional remedy of execution.
7.16.2008 11:22am
Andrew J. Lazarus (mail):
Until Boumediene, these determinations were always made by the military and not civilian courts. Why do you believe that one is more or less "neutral" than the other?
That's not really an accurate timeline. The Administration's first try was a wholesale declaration that all of the detainees were the "worst of the worst" without any Geneva rights. This Administration's claims to omnipotence are rivaled (and depend upon) its claims of omniscience. We wouldn't be in this mess if the Administration had followed past Administration practice (and the law). Instead, Bush has stalled, offering a variety of kangaroo courts so tainted that sometimes the judges and prosecutors can't abide them, whose evident purpose is to ratify the "worst of the worst" designations.

While I am willing to describe the District Court as a neutral decision maker, that's true only when the correct rules of evidence are followed. The charges that you, Bart, find so persuasive look like unsourced and totally uncorroborated hearsay to others, and to the extent that Khalid Sheikh Mohammed is implicated, they even include material obtained under torture. Perhaps you have a pre-existing condition that makes you credulous of all Bush Administration claims, so pretend someone else is in office. There was little reason for al-Marri to dispute the charges against him facing the (erroneous) evidentiary standards then in place.
7.16.2008 11:32am
PLR:
My initial reaction is gratification that the Senate Judiciary Committee has dragged its heels on nominees to the Fourth Circuit.

Why? Because you would like to see a more liberal Fourth Circuit? Or because the nominees that would pass with this Congress are likely too moderate?

The former. I'm not a fan of monarchies, even those that purport to be time limited.
7.16.2008 11:43am
Bob from Ohio (mail):
ohwilleke: An excellent analysis. I agree that the government will likely just drop the current action and return him to the regular courts/deport.

I have long argued that despite all the military commissions, presidential orders, statutes, etc., it was never the intent to actually try anyone but a few big fish. Hold for interrogation only. Release when they are no longer of intelligence value or until actually forced by a court.

The high level, undoubtedly evil ones like Khalid Mohammed will be tried under a military commission and executed. No US judge will ever sign an order releasing a Khalid Mohammed. Ever. No matter how he was treated.
7.16.2008 11:55am
cboldt (mail):
-- I wouldn't at all be surprise to see Al-Marri deported and enemy combatant status revoked ... --
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Or just deportation. Like Parhat, the government will resist reversing on the label "enemy combatant," no matter what.
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I see the legal strategy about the same way you do. The government is deliberately overreaching, sometimes with ludicrous legal theories. It won't get all the ground it claims to have a right to occupy, but it's getting ground it would not have, if it respected the relevant legal precedents.
7.16.2008 12:03pm
ejo:
overreaching? you mean by following the conduct and practices used in every war in our history, none of which stood for the proposition that civilian courts were the place for adjudicating the conduct of enemy soldiers. all the issues that Bush is being so shockingly brutal and constitutionally deficient on were addressed by learned men in the 40's who didn't possess the arrogance of our current courts.
7.16.2008 12:25pm
cboldt (mail):
-- overreaching? you mean by following the conduct and practices used in every war in our history, none of which stood for the proposition that civilian courts were the place for adjudicating the conduct of enemy soldiers. --
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I'm sure some, probably most, of the instances are on close parallel with history. I was thinking about the cases that aren't. What's the historical parallel for Padilla? Parhat? Holding incommunicado for years without "charge" or assignment of a time-honored label.
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I'm not saying the procedures that will eventually emerge will represent injustice or unfairness - just that as "the system" works its way toward eventual conclusion, the administration has adopted some truly radical legal positions (e.g., Hamdan - the Constitution does not require action by the legislature in order to create military commissions). Some of those have been shot down.
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-- all the issues that Bush is being so shockingly brutal and constitutionally deficient on were addressed by learned men in the 40's who didn't possess the arrogance of our current courts. --
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I believe some of the actions of the Bush administration are unprecedented, which is why the current rulings don't track exactly the same results as last time around. The differences include time between capture and resolution, admissions by the captured, and sufficiency of evidence.
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I've been able to EASILY identify substantial and substantive differences between the facts in the contentious current cases and the facts in the cases presented to the learned men in the 40's, as well as differences in arguments presented by the government.
7.16.2008 2:06pm
libertarian soldier (mail):
Spies do not have diplomatic cover. They are either recruited Host Nation (or sometimes Third Country) assets or (rarely) covert (i.e. deniable, as opposed to clandestine) personnel from the nation conducting the espionage. Case Officers, who recruit and run the spies, often do have diplomatic immunity. Military attaches are not spies (said the guy who spent three tours as one).
7.16.2008 3:40pm
eddiehaskel (mail):
Please, please, please:

Can anyone tell me how anyone will know if the war on terror is over? Will there be a "peace" treaty? Will someone surrender?

And if there is no end to such a "war", how can the conclusion that this decision has permitted the president to have the power to detain any individual forever be avoided?

What this decision shows is that calling something a war that is not will lead to ridiculous decisions that give our president dictatorial powers without any check.

Boy do I feel safer now.
7.16.2008 3:50pm
ejo:
eh-could you find something written in 1941 that predicted the war would end in 1945? war generally involves people shooting at people and sides attempting to kill one another-would you agree we have a check mark next to that criteria? cboldt-why not list some of the concepts never before imagined by any court? citizens fighting for an enemy-they thought of that, not a new concept. enemy saboteurs attempting to do harm in the country-yep, had that back in the less learned era as well. military having responsibility for those captured, some of whom, just like now, weren't wearing uniforms-can't imagine that never happened in the past and I am certain Quirin never even made reference to such an unknown thing. Enemy combatant-this, again, was probably dreamed up by Bush and I am certain that Quirin never discussed the category of "unlawful combatant" right? it had to have been Bush that came up with such a classification. the only difference I can see seems to be the arrogance of the courts and the willingness of lawyers to take the side of our enemies.
7.16.2008 4:56pm
cboldt (mail):
-- the only difference I can see seems to be the arrogance of the courts and the willingness of lawyers to take the side of our enemies. --
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That's fine by me.
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I gave a short list (and general description) of differences between the 1940's cases and the more contentious of today's detainee cases in my previous, but apparently those are invisible to you, since you can't seem to see any difference except the arrogance of today's courts and the willingness of lawyers to take the side of our enemies.
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I'll pass on your invitation to supply more examples. Thanks anyway.
7.16.2008 5:40pm
ejo:
why not address the similarities, oh wise one? is the war on terror the first time that the detention of enemy belligerents detained in this country has been addressed? how about the issue of unlawful combatants? how about citizens acting as unlawful combatants, even in this country? again, there is nothing new under the sun and the conduct of current terror detainees to conduct addressed and dealt with for hundreds of years (if not millenia) is pretty much indistinguishable.
7.16.2008 6:41pm
Howard Gilbert (mail):
"I am certain that Quirin never discussed the category of 'unlawful combatant' right"
Well, first you have to realize that prior to 1949 the term used was "belligerent". Belligerents were divided into combatants (front line soldiers) and non-combatants (clerks, cooks, truck drivers). After 1949 "combatant" replaced "belligerent" and came to mean anyone in uniform, that is anyone authorized to be in combat as distinguished from front line soldiers.

Now, from Quirin:
<blockquote>
Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of <b>unlawful belligerents </b>not entitled to that privilege, including those who, though combatants, do not wear "fixed and distinctive emblems." And, by Article 15 of the Articles of War, Congress has made provision for their trial and punishment by military commission, according to "the law of war."
</blockquote>
<blockquote>
As we have seen, entry upon our territory [p37] in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and warlike act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for <b>unlawful belligerents</b>.
</blockquote>
<blockquote>
By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become <b>unlawful belligerents </b>subject to trial and punishment. Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of <b>a belligerency which is unlawful because in violation of the law of war</b>. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, [p38] guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.
</blockquote>

There seems to be some confusion about "spies" and "Spies". Civilians who gather intelligence about a country are spies. In some cases, they commit the civilian crime of espionage. However, Military Spies are soldiers or auxiliaries who in time of war and under orders from a military commander proceed in civilian clothes or in the uniform of a member of the enemy army and cross through the enemy lines to gain access to the unprotected rear areas and gather intelligence or conduct sabotage. Military Spies are not guilty of espionage but rather violate the laws of war by "crossing through lines without uniform." They are typically subject to execution, but not for punishment of a crime. In war, enemy soldiers are subject to being killed on sight in combat. Soldiers who surrender honorably are held as POWs, but those who cross lines without uniform are not lawful combatants, are not eligible for POW status, and have no protection under the laws of war. When executed, their death is as lawful as if they were shot in combat because their presence behind lines out of uniform is formally regarded as an act of armed belligerency even if they are physically unarmed when captured. The information they would have brought back, or the sabotage they would have performed, would cost more lives than they could have taken in honorable combat.

Padilla and al Marri were unlawful enemy combatants who under the command of Kahlid Sheikh Mohammed passed through and remained behind lines of defense (al Marri) or attempted to pass though lines of defense (Padilla) in wartime, on military missions to conduct acts of sabotage. The only difference is that in prior cases (Quirin, the 1945 German saboteurs, and cases going back to Major John Andre) the Military Spies were all tried in military courts and executed. Padilla and al Marri were only held as if they were ordinary POWs and have not be tried in military courts for their offenses. Of course, they have been (or were in Padilla's case) continuously in litigation before civilian courts precluding any military trial.

Padilla also confessed and documented his enemy combatant status in thousands of hours of recorded testimony. This un-Mirandized testimony could not be introduced as evidence in any criminal prosecution, but could impeach any testimony he offered had he ever contested his classification as an enemy combatant. So in several years of litigation, he never once claimed that he was not an enemy combatant. Rather, as al Marri, he requested summary judgement that even if he was an enemy agent, saboteur, and spy as the government contended that current US law would not allow his detention by the government because he was captured in (or attempting to enter) the US. In both the Padilla and al Marri cases, the Fourth Circuit rejected summary judgement and found that, if the facts alleged were true, then the detention would be legal.

Padilla committed two capital offenses (Treason and crossing lines without uniform). Al Marri only committed one (crossing lines). Padilla confessed, but his un-Mirandized confession could not be used against him. Al Marri has never confessed. Both want summary judgement because in an actual hearing about their combatant status, anything they said on the stand under cross examination could be used against them in a subsequent capital trial. Al Marri is tougher than Padilla, but his lawyers still probably do not want to put him on the stand.
7.16.2008 7:58pm
ohwilleke:
@Bart:

Enemy spies have traditionally been executed under the laws of war. However, we entered into an unofficial understanding with our European rivals and enemies that we would not execute their spies if they would not execute ours. Also, spies are usually protected under diplomatic immunity.

The U.S. has prosecuted both Israeli and Chinese spies in the criminal justice system during the Bush Administration, and the U.S. has prosecuted criminally a slow trickle of spies of both allies and enemies on a regular basis for at least a century. Only spies with diplomatic cover are declared persona non grata as a result of diplomatic immunity, but many spies, including Al-Marri, should he be one, do not have diplomatic cover.

The last time a spy operating in the United States, who was not an admitted soldier, was executed under the laws of war, of which I am aware, was during the U.S. Civil War. I recall no such cases in the Spanish-American War, WWI, WWII, Korea, Vietnam, or the Cold War.

Also, as Ex Parte Milligan and Estranger establish, individuals prosecuted under the laws of war for being spies are entitled to habeas corpus review of the military proceedings reaching that conclusion. Milligan prevailed on the merits, the German sabatouers did not.
7.16.2008 10:28pm
ohwilleke:
@Howard Gilbert:

Padilla also confessed and documented his enemy combatant status in thousands of hours of recorded testimony.

The U.S. has certain not made these confessions or this documentation public, so there is no reason to believe this assertion. The adminstration has formally disavowed Padilla's enemy combatant status itself. And, any confession must be judged by the extent to which it was coerced, above and beyond any legal rules created in Miranda.

Padilla has, in fact, contested his enemy combatant status (among other times, in subsequent criminal ltigation). The conditions Padilla has stated in documents which have been made public his in criminal prosecution also assert a level of coersion beyond that found to be invalidating prior to Miranda (and many of those cases accepted confessions under quite extreme circumstances). Yet, the government has never made an evidentiary rebuttal of those claims. So, the alleged confessions probably would not be admissible for impeachment purposes.

Padilla was convicted of conspiring to support a terrorist organization by signing up to be a Jihadist, without himself engaging in any violent acts, which conspiracy caused unspecified deaths. He was sentenced to 17 year, 4 months of imprisonment as a result. The conviction and sentence are currently on appeal. He has never been charged or convicted of treason, nor has he been charged or convicted of crossing lines without a uniform. Indeed, the charges against Padilla have shifted over time, and the government itself has disavowed its earlier dirty bomber allegations. Padilla's decision not to testify in the criminal proceeding against him is understable, as he has a lengthy history of felony convictions that would come into evidence if he did (which is the main reason his sentence was longer than his co-conspirators despite the fact that his was not the leader of the alleged conspiracy), and as the evidence against him was fairly thin.
7.16.2008 10:43pm
Andrew J. Lazarus (mail):
The circularity is breathtaking. Notice how first we assume Padilla and Al Marri were unlawful enemy combatants, and then we proceed from there.

So far for this proposition, at least w.r.t. Al Marri, we have an affidavit full of hearsay, some of which appears to have been obtained through torture. Quite a low threshold.

Padilla and al Marri were unlawful enemy combatants who under the command of Kahlid Sheikh Mohammed passed through and remained behind lines of defense (al Marri) or attempted to pass though lines of defense (Padilla) in wartime, on military missions to conduct acts of sabotage.
7.17.2008 1:39am
Howard Gilbert (mail):
The government still claims that Padilla was an enemy combatant. It never withdrew its story that Padilla was always talking to other members of al Qaeda about his big idea for building a dirty bomb. The dirty bomb story, however, was never a criminal charge nor did the government ever claim it was or could be a charge. The government convicted Padilla for things he did before he became an enemy soldier. Every soldier who fought for the Germans during WWII was eventually released from military custody, but that did not mean that the government "disavowed" its claim that they were German soldiers. Padilla was similarly released from military custody because the government was more interested in convicting him in civilian court, and that could not begin until his release.

However, Binyam Mohammed was to be Padilla's partner in the "apartments operation" attack on the US. He is still in Guantanamo and has been charged with his part in that op and with in some way helping Padilla to flesh out his crazy dirty bomb idea. I don't think the dirty bomb charge will stick, but far from dropping the dirty bomb story, the government has filed formal charges concerning it with regard to Padilla's accomplice. It must be planning to introduce some evidence to the Military Tribunal, provided the judge doesn't toss the charge out since it is not an actual violation of the laws of war.

If al Marri wanted to contest the evidence, he would return to District Court and fight the case there. If he takes the summary judgement claim to the Supreme Court, then as in the Fourth Circuit the ground rules will be that the Court must assume that everything the government claims to be true in its court documents is in fact true, but then find that as a matter of law al Marri should be released anyway. Such an appeal guarantees that he will spend one more year in military prison before the Supreme Court makes a decision, and if it is unfavorable then he goes back to District Court where he could in theory make a claim of actual innocence. His lawyers have announced they are more interested in the appeal than in disputing the evidence.
7.17.2008 2:21am
Andrew J. Lazarus (mail):

If al Marri wanted to contest the evidence, he would return to District Court and fight the case there.
Under the rules that the Rapp Declaration is true until rebuts it, without knowing who said what and under what circumstances (e.g., torture). Yeah, that's a fair fight. At least he isn't preparing his defense while being held incommunicado without even access to counsel.
7.17.2008 6:18pm
Howard Gilbert (mail):
I think the whole point of this decision is that we won't know what the rules of evidence are until the District Court decides what they will be. Certainly they will be more favorable than the old rules, and I would expect that at a minimum the Rapp Decaration is tossed and the government has to introduce real evidence.
7.18.2008 12:00pm