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Supreme Court takes another detainee case:

Here we go again. According the The New York Times:

The case concerns Ali al-Marri, the only person on the American mainland being held as an enemy combatant, at the Navy brig in Charleston, S.C. Mr. Marri, a citizen of Qatar, was legally in the United States when he was arrested in December 2001 in Peoria, Ill., where he was living with his family and studying computer science at Bradley University.

Eighteen months later, when Mr. Marri was on the verge of a trial on credit card fraud and other charges, President Bush declared him an enemy combatant, moving him from the custody of the Justice Department to military detention. The government says Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

The case, which will probably be argued in the spring, will present the Obama administration with several difficult strategic choices. It can continue to defend the Bush administration's expansive interpretation of executive power, advance a more modest one or short-circuit the case by moving it to the criminal justice system.

In July, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a fractured decision in the case. In one 5-to-4 ruling, the court ruled that the president has the legal authority to detain Mr. Marri.

But a second, overlapping 5-to-4 majority of the court ruled that he must be given an additional opportunity to challenge his detention in federal court. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled.

The issue of the President's power to detain enemy combatants under the post-9/11 congressional Authorization to Use Military Force was decided in the President's favor in Hamdi v. Rumsfeld in 2004. But the Court also said that detainees must be given a hearing to challenge their designation.

The difference between this case and Hamdi and the other detainee cases appears to be that al-Marri was seized while lawfully residing in the United States. Hamdi was captured on the battlefield in Afghanistan. Jose Padilla, another detainee held as an enemy combatant (and later tried and convicted) was captured upon arrival at the Chicago airport, but in connection with his activities in Afghanistan. Al-Marri's attorneys are apparently arguing that the circumstances of his case are beyond the detention authority granted to the President in the AUMF and that, consequently, he must either be tried or released.

I haven't read the briefs yet but it's hard to see how the location of his capture would make much of a difference to the Court. If indeed the President has the power to detain people he designates as enemy combatants under the AUMF, as the Court held in Hamdi, al-Marri is entitled to a status-review hearing but not a trial. The government's claim, after all, is that he is acting in concert with Al Queda. The AUMF allows the President to use force, including detention, against any person or organization "he determines" is connected with 9/11. It contains no geographic restriction on where that force may be used and no requirement of a connection to any traditional "battlefield." Indeed, Hamdi was a citizen held in South Carolina after being captured abroad, facts which made no dent in the President's power to detain enemy combatants. But the executive power is now on a losing streak in these war-on-terror cases, so bets are off.

As for the position of the Obama administration in the case, will this be another test of the Orin postulate that all things criminal and reckless under the Bush administration will now be necessary and proper under the enlightened one?

UPDATE: Find links to the briefs at SCOTUSBlog here.

J. F. Thomas (mail):
Padilla was detained in connection with his activities in Afghanistan? Really? Not according to what he was eventually charged and tried for.

Padilla's detention and eventual trial was a bad joke.
12.5.2008 4:09pm
Steve:
I find it completely amazing that the same commentariat is largely (1) outraged that the government apparently has the power to arbitrarily prosecute you for violating a Terms of Service agreement on the Internet, yet (2) unconcerned that the government has the power to imprison you indefinitely without trial, based upon nothing more than the President's say-so that you are an enemy combatant. Apparently many here believe there is absolutely no reason to worry that the government might abuse its power in the latter case.

Assuming for the sake of argument that al-Marri is in fact a bad guy, I'm not sure whether the concern is (1) a public prosecution would reveal classified sources and methods, or (2) he might get off on some technicality. If the latter, I don't particularly care, since we run that risk all the time when we prosecute mass murderers. If the former, it's a trickier problem, but we simply have to find some solution with more legitimacy than indefinite military detention. I'm kind of disappointed that Judge Mukasey, who knows a lot about these things, wasn't able to help the Bush Administration find a way to solve that problem. We simply can't become a country where we lock up citizens and legal residents simply because the President claims they're bad guys.
12.5.2008 4:31pm
Thomas_Holsinger:
This can easily be disposed of by pardon, given an adequate donation to the appropriate library or re-election committee. It's the Democratic way!
12.5.2008 4:32pm
einhverfr (mail) (www):
Dale Carpenter wrote:

I haven't read the briefs yet but it's hard to see how the location of his capture would make much of a difference to the Court. If indeed the President has the power to detain people he designates as enemy combatants under the AUMF, as the Court held in Hamdi, al-Marri is entitled to a status-review hearing but not a trial.


There is a significant difference, when reading the Hamdi precedent though. The plurality opinion clearly stated that it was limited to individuals captured in battle, and another set of 4 justices (the Suiter/Ginsberg concurring opinion and Scalia/Stevens dissent) concluded that no such authority existed. Even Thomas's largely uncritical view of the Bush Administration's case limited his precedent to those captured on the battlefield.

The distinction is a Constitutional one, IMO, rather than one relating to the AUMF by itself. In battlefield detentions, the question is one relating to rules of warfare, while in Al-Marri's case, it seems clear that full due process would be available.

Now, on to my reading of the jurisprudence (IANAL, etc). Hamdi rests on two prongs: Milligan and Quirin. Quirin addressed the case of German saboteurs arrested in the US at the end of WWII, while Milligan addressed the case of someone arrested near the end of the civil war in Indiana. The argument for detention of Al-Marri is based largely on an uncritical reading of Quirin. I think, however, this is fundamentally different because there are no clear victory conditions in the war against terror. It isn't even clear who "the enemy" is in the AUMF as this document grants the president broad latitude in this area, and if we read Quirin as granting executive discretion in these cases, we can say good bye to the separation of powers inherent in our rule of law.

The second problem though is that the Supreme Court does NOT appear to be reading Quirin this expansively as we see in a string of cases (Hamdi, Rasul, Hamdan, and so forth). Thus the idea that Quirin should be interpreted as providing unrestrained power to the executive is largely untenable. The behavior of the Bush Administration regarding Padilla suggests that they were reading in these precedents a warning that Padilla's military detention was not really authorized, and this is further evidenced by their request to the 4th Circuit to have the appellate decision unilaterally vacated.

The Al-Marri case IMO shows why the 4th Circuit was right in refusing to unilaterally vacate their Padilla decision because this makes the review of the case more simple and the path SCOTUS a bit shorter. I think the 4th Circuit was hence right to see the request to vacate the ruling as a request to vacate their ruling in Padilla v. Hanft with extreme suspicion.

Prediction: SCOTUS rules against the detention here and separates from Hamdi on the basis that Hamdi was captured in active military operations in a foreign country, while Al-Marri was captured by civilian law enforcement in the US.

DC: Certainly the case is distinguishable from Hamdi because of the circumstances of the capture and detention. Otherwise, there would be no case here. But the question is whether the distinction makes any difference. The Court did not say that the President has no power under the AUMF to detain people other than those captured in Afghanistan. It simply said its decision was limited to that circumstance. But why would a court untroubled by executive power to detain a citizen indefinitely on American soil suddenly become civil libertarian about an alien detained indefinitely on American soil simply because the former was alleged to be aiding Al Queada outside the U.S. and the latter is alleged to be aiding Al Queada from within the U.S. itself? If anything, the latter case would seem to involve the more direct threat to the American homeland, which is what the text of the AUMF says the President is empowered to protect from terrorist attack. I make no defense here of the broad authority Congress gave the President in the AUMF and I am personally more comfortable with the Scalia dissent in Hamdi, which argued that citizens must either be tried or released. But the Court went in another direction, not quite letting detainees be held simply on the "say-so" of the President but also not according them full due process rights. You seem confident about the outcome, and given Justice Kennedy's vote in Boumedienne you may be right (although that case involved distinct questions), but at least on the authority of Hamdi and the broad text of the AUMF, I don't see why that confidence should be warranted.
12.5.2008 4:35pm
Crunchy Frog:
TH: Don't forget the ever-popular Legal Defense Fund.
12.5.2008 4:36pm
Rhode Island Lawyer:
Nice snark in the last paragraph. Give it a break, will you?
12.5.2008 4:38pm
Just Dropping By (mail):
The government says Mr. Marri is a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

So al-Qaeda wanted to engineer his appointment as US Treasury Secretary?
12.5.2008 4:41pm
einhverfr (mail) (www):
One thing I think that is interesting to consider is that 4 justices in Hamdi felt that the detention was not lawful, but 2 of them felt that given the impass they were willing to set aside their concerns and join with the plurality to support a lower standard of due process. When Justice Suiter says that regretfully his opinion and analysis does not hold a majority in the court and therefore he will concur with the judgement, that says something about how tenuous reading too much into Hamdi outside the specific circumstances of that case would be.
12.5.2008 4:41pm
einhverfr (mail) (www):
BTW, the fundamental problem with the AUMF argument is as Dale Carpenter states:

The AUMF allows the President to use force, including detention, against any person or organization "he determines" is connected with 9/11.


If any detention is allowed merely on the President's say-so (because the administration issues a statement saying the individual was involved in 9/11), then there is no meaningful due process or separation of powers. And in that case, we then are no longer ruled by a government of laws.

I think the AUMF must be read more restrictively then that. However, given their stance in Padilla, the 4th Circuit was more or less obligated to take the position they did here.
12.5.2008 4:56pm
OrinKerr:
Steve,

To help me understand your comment, define "you."
12.5.2008 4:56pm
Steve:
Hamdi rests on two prongs: Milligan and Quirin. Quirin addressed the case of German saboteurs arrested in the US at the end of WWII, while Milligan addressed the case of someone arrested near the end of the civil war in Indiana. The argument for detention of Al-Marri is based largely on an uncritical reading of Quirin.

In reality, Ex Parte Quirin was something of a game of chicken where FDR informed the Supreme Court "look, I'm going to execute these guys, so either you can agree that I have the power or you can invite a constitutional crisis." While this probably wasn't the end of the world under the circumstances, it would seem unwise to treat it as the sort of precedent which should govern our conduct forevermore, and I think it was pretty aggressive for the Bush Administration to treat it as utterly settled law.

As a side point, Ex Parte Quirin did not occur towards the end of the war, it was about 6 months after Pearl Harbor.
12.5.2008 5:00pm
Anderson (mail):
and I think it was pretty aggressive for the Bush Administration to treat it as utterly settled law

Not the Court's finest moment, is how I think Scalia described Quirin.
12.5.2008 5:07pm
Thomas_Holsinger:
I agree with einhverfr's comment here:
"When Justice Suiter [sic] says that regretfully his opinion and analysis does not hold a majority in the court and therefore he will concur with the judgement, that says something about how tenuous reading too much into Hamdi outside the specific circumstances of that case would be."

OTOH, a century-old comment by Finley Peter Dunne's Mr. Dooley could well apply here: "The Soopreeme Curt follows th' iliction returns."

I.e., having gotten rid of those nasty Republicans, it will cut the new Democratic administration some slack and wait to see if it starts handing detainees differently before taking any definitive action one way or another.
12.5.2008 5:07pm
Steve:
To help me understand your comment, define "you."

Anyone who is a U.S. citizen or legal resident can be "you," it seems.

If the indefinite detention of someone like al-Marri or Jose Padilla is constitutional, then the only thing standing in the way of the indefinite detention of you and me is that the President has not yet designated either one of us as an enemy combatant. But he would certainly have the unfettered power to ship either one of us to the brig.

I'm confident that it won't actually happen to me, but I'm also confident that I won't be prosecuted for a TOS violation (notwithstanding your best efforts, I might add). In either case, the principle is the same that we want our liberty to be protected by something more than the government's presumed good faith. At least in the TOS case, we have some measure of protection from the government in the form of the grand jury and the petit jury; but unless al-Marri has habeas corpus, does he have any protection at all?
12.5.2008 5:07pm
D Palmer (mail):
I know that I am not comfortable with the idea that anyone can be detained within the US and held indefinitely as an 'Enemy Combatant" with no requirement on the governments part to present ANY evidence that such a claim is reasonable.

I understand that many would say that my view point weakens America's security, and I think that is probably true.

Nevertheless, I am willing to accept this measure of risk in the name of fairness. It is important to me to know that I (or anybody else) cannot simply be disappeared by the government with the blanket justification that I am an 'enemy combatant'.

Different rules for outside the US are fine with me, but within this country we have agreed that we all have certain rights and I am unwilling to surrender those rights in the name of security.
12.5.2008 5:07pm
AF:
As for the position of the Obama administration in the case, will this be another test of the Orin postulate that all things criminal and reckless under the Bush administration will now be necessary and proper under the enlightened one?

Hey now, either it's governed by Hamdi or the government winning implies a double standard. Can't be both!
12.5.2008 5:09pm
Howard Gilbert (mail):
The government claims that al Marri was a soldier in the Afghan Army who had an opportunity to enter the US as a graduate student. He obtained a meeting with Bin Laden and Kahlid Sheikh Muhammed in the final months before 9/11 and volunteered to use his supposed computer skills to attack the US economy from within, provided they supported his mission with some cash. Since KSM was running the 9/11 attack, he arranged for al Marri to get into the US the day before it took place.

Under the Hamdi decision, the Federal District Court gave al Marri a hearing where he was given an opportunity to respond to the government claims. The District Court then entered a finding that, based on the evidence in the hearing, he was an enemy combatant and could be held in military custody. That case was appealed to the Fourth Circuit, which rejected al Marri's request for a summary judgement but also remanded the case to the District Court to repeat the hearing with different rules of evidence.

Al Marri is the only detainee to have been found to be an enemy combatant in a hearing before a Federal Court. Although initially detained under an Executive finding, he is now held based on both an Executive and a Judicial finding.

The Supreme Court is being asked for summary judgement that as a matter of law his detention is not allowed. For the purposes of that motion, the court begins by assuming all facts alleged by the government are true. So the question before the court is whether the AUMF would allow the military detention of an enemy soldier who, under the command of the same person who commanded the 9/11 attack, entered the US the day before the planes were hijacked for the purpose of conducting a separate act of computer based economic sabotage.

If the court had not taken the case, or if it finds that the government's claims describe a case where military detention is allowed, then the case will return to the District Court for a new hearing based on the new rules of evidence. Although the format of that hearing is not specifically before the Justices, they may recommend additional changes.
12.5.2008 5:10pm
einhverfr (mail) (www):
Howard Gilbert:

The Supreme Court is being asked for summary judgement that as a matter of law his detention is not allowed. For the purposes of that motion, the court begins by assuming all facts alleged by the government are true. So the question before the court is whether the AUMF would allow the military detention of an enemy soldier who, under the command of the same person who commanded the 9/11 attack, entered the US the day before the planes were hijacked for the purpose of conducting a separate act of computer based economic sabotage.


Sure. However, once again, I think this heavily misreads Hamdi an the precedents on which it was based.

From the Hamdi plurality opinion:

Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government's authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different.


It seems fairly clear to me that the court is willing to entertain using the Milligan precedent to address cases like Al-Marri and Padilla.
12.5.2008 5:25pm
Simon Kardner (mail):

In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different.




Howard Gilbert's point seems to be that Al-Marri, according to the Government, was materially equivalent to "captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield[.]" Al-Marri is the Milligan exception.
12.5.2008 5:59pm
Howard Gilbert (mail):
Milligan was a civilian, not a Confederate soldier, so it was also important that he also did not help Confederate soldiers or engage in combat. Al Marri and Padilla were solders in the Afghan Army who volunteered for attacks inside the US. Had Milligan been a Confederate soldier who took off his uniform and pretended to be a civilian, that would have presented the court with an entirely different set of circumstances.

Suppose a Japanese sailor dressed in civilian clothes and under the direct command of Admiral Yamamoto entered the US on the day before Pearl Harbor. However, his mission was to crash the US stock market by selling phony gold mine stocks. I seems pretty clear that he could be held by the military because, like Padilla and al Marri, he was an enemy soldier on a military mission under the direct command of the enemy commander of an attack that started a war. However, it might be hard to charge him in a military court with spying or sabotage because his mission really didn't involve either, or any other kind of actual belligerent act.
12.5.2008 6:01pm
Simon Kardner (mail):

I[t] seems pretty clear that he could be held by the military because, like Padilla and al Marri, he was an enemy soldier on a military mission under the direct command of the enemy commander of an attack that started a war. However, it might be hard to charge him in a military court with spying or sabotage because his mission really didn't involve either, or any other kind of actual belligerent act.



Fair enough. But the Government's case is rather strong. Pretending that Al-Marri is a straight-up Milligan case involving a random American swept up by mistaken Federal Marshals is quite ridiculous.
12.5.2008 6:06pm
einhverfr (mail) (www):

Howard Gilbert's point seems to be that Al-Marri, according to the Government, was materially equivalent to "captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield[.]" Al-Marri is the Milligan exception.


Sure. However, given the specific discussion of that case and how Quirin is a closer standard for Hamdi, I think such a view is outside what the court said in Hamdi. Given the emphasis placed on Hamdi's foreign capture, and the fact that Hamdi was decided by a minority of the court (the court was actually divided 4-4-1), I think it needs to be read in a very restrained way in this area. Mr Gilbert in another post seems to agree with this view.

However, the more important matter is that legal equivalence is fair game (AFAICS, IANAL) in summary judgement proceedings. This question isn't about contesting facts, but rather accepting the facts in dispute to the point that they support the government's case. This means that it is reasonable to ask in summary judgement whether this *really* is materially equivalent as a matter of law.

However, as Orin Kerr points out, Obama will probably duck the issue by trying in federal court. As I pointed out, this means Al-Marri will be treated in this regard the same way Padilla was.
12.5.2008 6:08pm
Simon Kardner (mail):

Given the emphasis placed on Hamdi's foreign capture, and the fact that Hamdi was decided by a minority of the court (the court was actually divided 4-4-1), I think it needs to be read in a very restrained way in this area.



The foreign capture seems of little weight in a case where it is taken as true that Al-Marri lied on his visa application to gain entry to the country for the purpose of committing both economic crimes to finance his terrorist operations and executing poison gas attacks against innocent civilians. It would be a rather silly argument that the President lacked the power under the AUMF to prevent the 9/11 hijackers once they made it to American shores, given that the AUMF was designed to permit the President to take action in precisely that type of situation. As Prof. Carpenter noted, there is no geographic limitation in the AUMF.
12.5.2008 6:15pm
einhverfr (mail) (www):
Simon Kardner:

The foreign capture seems of little weight in a case where it is taken as true that Al-Marri lied on his visa application to gain entry to the country for the purpose of committing both economic crimes to finance his terrorist operations and executing poison gas attacks against innocent civilians.


The problem with this analysis is that it suggests that any immigrant or alien against whom these allegations are made would be guilty until proven innocent. The question really is what degree of due process is available to try such a case, not whether or not he is guilty.
12.5.2008 6:19pm
einhverfr (mail) (www):
Btw. as Howard Gilbert has pointed out in the other thread, it looks like moving Al-Murri to federal trial is no longer an option, since the Bush Administration burned that bridge by requesting that the federal charges be dismissed with prejudice (and that this request was granted).
12.5.2008 6:21pm
Simon Kardner (mail):

The problem with this analysis is that it suggests that any immigrant or alien against whom these allegations are made would be guilty until proven innocent. The question really is what degree of due process is available to try such a case, not whether or not he is guilty.



Al-Marri has already had multiple hearings, including one to contest his enemy combatant status. Unless you are claiming that a hearing to contest your enemy combatant status before an independent federal judge does not constitute due process, I fail to see your argument. Indeed, the fact that we are discussing his case before the Supreme Court this very moment in a public forum accessible by a computer anywhere in the world would seem to belie your implicit claims that American military justice operates in secret and deprives human beings of basic rights.
12.5.2008 6:27pm
Thomas_Holsinger:
Howard Gilbert,

The issue here is DETENTION, not liability. And you stated, in the first sentence of one of your posts (my emphasis):
"The government claims that al Marri was a soldier in the Afghan Army who had an opportunity to enter the US as a graduate student."

I.e., he was a member of the Taliban and an enemy combatant who entered the United States unlawfully for the purpose of conducting sabotage.

Enemy combatants may be held without trial for the duration of hostilities.

al-Marri seems to have been a lawful combatant, i.e., a member of the Afghan Army, who became an unlawful combatant by shedding his uniform and entering the U.S. incognito. Mere status as an unlawful combatant caught out of uniform merits execution - that is what we did to Skorzeny's commandoes caught in American uniforms during the 1944 Battle of the Bulge.

And they may certainly be held as prisoners for the duration of hostilities.
12.5.2008 6:30pm
Steve:
Al-Marri has already had multiple hearings, including one to contest his enemy combatant status.

Right, but only because the black-robed tyrants forced them to have a hearing! The Bush Administration position was that the guy should be held indefinitely with no hearing whatsoever.
12.5.2008 6:38pm
Simon Kardner (mail):
The Bush Administration position was that the guy should be held indefinitely with no hearing whatsoever.





Whether that is an inaccurate or incomplete account of what the Bush administration's position was, the administration to defend this case will be the Obama administration and its procedural history includes the fact that Al-Marri received multiple hearings, including one to contest his enemy combatant status. Unless you are claiming that a hearing to contest your enemy combatant status before an independent federal judge does not constitute due process, I fail to see your argument.
12.5.2008 6:41pm
einhverfr (mail) (www):
Dale Carpenter:

But why would a court untroubled by executive power to detain a citizen indefinitely on American soil suddenly become civil libertarian about an alien detained indefinitely on American soil simply because the former was alleged to be aiding Al Queada outside the U.S. and the latter is alleged to be aiding Al Queada from within the U.S. itself? If anything, the latter case would seem to involve the more direct threat to the American homeland, which is what the text of the AUMF says the President is empowered to protect from terrorist attack.


I guess I read Hamdi a little differently based on some core distinctions. The key question is what Hamdi's detention was supposed to accomplish, IMO. This was not a question of harm to the US, but simply the fact that if you start releasing everyone you capture, they go back to the battlefield and you never get an opportunity to get beyond armed hostilities. In fact, this was one major issue with the British approach to the American revolution (looking at how General Carlton handled POWs for example-- he confiscated their guns and released them).

The question then was, by my reading, a matter of how armed hostilities are generally executed and what wartime powers a president has relating to those captured on the field of battle in the military sense. These are standard powers under Article II, as relate specifically to armed conflict. This is why the circumstances of capture in battle was used as the primary differentiating factor regarding the court's analysis of Quirin and Milligan.

The question then becomes one relating to military duties and whether the "war on terror" is universally a military conflict. Where it is not a military conflict, I don't think you can simply apply the standards found in Hamdi, Rasul, and Hamdan, and would have to conclude that criminal law enforcement measures would be the only means of recourse.

Hence the distinguishing matter is not one of threat to the US. Certainly criminal law is sufficient to deal with a wide range of those. The distinguishing feature is one related to military operations an the relationship between those and the detention. Since I don't see a clear link here, I think criminal law enforcement, and not article II war powers, would apply.
12.5.2008 6:50pm
Howard Gilbert (mail):
Being a soldier in an enemy army at war with the US is not a violation of US law. During WWII the US held 435,000 Axis POWs in camps throughout the country, but none were or could be charged with a crime. It is a mistake to talk about an enemy soldier being guilty or innocent. He is neither since he is not charged with a crime. He either is or is not an enemy soldier.

There is no Article III court involvement before an enemy soldier is taken into military custody. If the government went to a judge asking for a ruling that someone was an enemy combatant, they would be told it is not a charge within the jurisdiction of the court. The Constitution does not permit judges to render an advisory opinion. The military has to use its own best judgement about who is or is not an enemy combatant. Then their decision can be challenged later.

You cannot claim that al Marri did not have due process before being detained when no process is available. After being detained, the Hamdi decision allowed him to file a challenge to his classification as an enemy soldier before a Federal judge. He is now appealing the judgement from that hearing. If you want more process than this, you have to pass a law creating it. Al Marri cannot be said to have been denied that which does not exist for the particular claim the government is asserting.
12.5.2008 6:55pm
Steve:
Unless you are claiming that a hearing to contest your enemy combatant status before an independent federal judge does not constitute due process, I fail to see your argument.

So if I am claiming that, then you would see my argument?

If I were making that absurd claim, even I wouldn't see my argument!

You cannot claim that al Marri did not have due process before being detained when no process is available. After being detained, the Hamdi decision allowed him to file a challenge to his classification as an enemy soldier before a Federal judge.

There's sort of a long period between his arrest in 2001 and the Hamdi decision in 2004 that's getting lost in your version of events. During that time, the Bush Administration argued vigorously that people like al-Marri weren't entitled to any kind of due process whatsoever.

Also, you are skipping over the fact that al-Marri was getting plenty of due process in the civilian court system before the Bush Administration made a conscious decision to go the route that didn't require any due process. Recall that al-Marri was allegedly plotting to do some very serious things. It's not a case where his crime is his mere status as an enemy soldier.
12.5.2008 7:02pm
einhverfr (mail) (www):
Howard Gilbert wrote:

Being a soldier in an enemy army at war with the US is not a violation of US law. During WWII the US held 435,000 Axis POWs in camps throughout the country, but none were or could be charged with a crime. It is a mistake to talk about an enemy soldier being guilty or innocent. He is neither since he is not charged with a crime. He either is or is not an enemy soldier.


There are two critical distinctions here.

The first is the relationship between the detention and on-going military operations. In Hamdi, and in the cases you mention, this was a clear link. If we argue otherwise, then the internment camps of the Japanese-Americans become entirely without problem simply because at a time of war (even as now a time of indefinite war) the executive has ultimate say-so.

The second has to do with duration of hostilities. In WWII, there was a definite victory condition. Here there is not. POW's were hence not locked up indefinitely. Note that WWII lasted a shorter time than the Iraq war....

I think one has to see "duration of hostilities" being within a specific armed conflict, such as Iraq or Afghanistan, and I think the power to detain combatant prisoners needs to be closely tied to those operational efforts. Otherwise we have no due process guarantee in this country and Bush might as well be Felix Sulla....
12.5.2008 7:27pm
Thomas_Holsinger:
Steve,

The detention of an enemy combatant for the duration of hostilities, and the detention of a criminal accused pending trial, are two different things and both can be applicable at the same time.

If you wear a blue undershirt and a red long-sleeved shirt, the question, "Which of those two shirts are you wearing?" is nonsense.

al-Marri can be detained for both being an enemy combatant, and for being a criminal accused pending trial, at the same time. An order for his release on the criminal charges in no way affects his detention as an enemy combatant for the duration of hostilities.

The same applies to a criminal accused of a multi-state murder spree who is charged with offenses in multiple states. He can be held in Calfornia on pending charges of murder in Calfornia, and in Nevada, even if the Iowa charges of a murder there are dismissed.

The dismissal of criminal charges against al-Marri does not affect his continued detention as an enemy combatant. The latter must be challenged separately.

Steve, tell us how many of the hundreds of thousands of Confederate prisoners during the Civil War, and German/Italian prisoners in World War Two, challenged, in federal court, their detention for the duration of hostilties. And tell us whether they had any grounds for doing so.
12.5.2008 7:29pm
SKardner (mail):

I think one has to see "duration of hostilities" being within a specific armed conflict, such as Iraq or Afghanistan, and I think the power to detain combatant prisoners needs to be closely tied to those operational efforts.



Except Al-Marri is virtually identical to the 9/11 hijackers. He is certainly specifically tied enough to Al-Qaeda to fall under the AUMF.
12.5.2008 7:48pm
einhverfr (mail) (www):
SKardner:

Except Al-Marri is virtually identical to the 9/11 hijackers. He is certainly specifically tied enough to Al-Qaeda to fall under the AUMF.


Which specific armed conflict is Al-Marri involved in? If we capture all key resistance people in Afghanistan tomorrow does this mean Al-Marri gets to be released?
12.5.2008 7:52pm
Vermando (mail) (www):
"it's hard to see how the location of his capture would make much of a difference to the Court"

Agreed with much of what is said above that, given the Court's dictum in Hamdi and precedents such as Ex parte Milligan, the place of capture would seem to matter a lot. Not to say it would be decisive, or that it would matter more than Hamdi's citizenship, but the fact that Hamdi was picked up in a conflict-zone was clearly important to the plurality. Indeed, they were not crafting the narrow rule of 'how to deal with prisoners who are citizens held stateside,' but were instead consciously trying to articulate how the military should handle citizens it picked up in the course of battle.

I understand the argument is that the 'battle' is over the entire world, but Justice O'Connor's Matthews analysis clearly did not explicitly endorse this view, given that if you take away the war zone factor then the government's burden plummets and an entirely different level of due process is warranted.

More importantly, it is not clear that the members of the plurality would find that the AUMF gave the President the same powers inside the US as outside. At the least, they would almost certainly want to deal with Steel Seizure and especially Ex parte Milligan - which would seem pretty explicitly to rule this out - because the location in which the President exercises his war powers - in this case the power of capture - does matter a lot by prior precedent and in the dictum of the plurality. I'm not saying they ultimately wouldn't come to your position, but I'm kind of amazed that you don't see that the situs would make a difference.

On the other hand, to push back on some of what is written above, the plurality opinion does not need to be read too narrowly just because it is only 4 justices. In particular, Justice Thomas completely endorsed the government's position, so counting heads, we should read him as a fifth vote for the most expansive reading of that opinion.

Obviously this is a difficult but important area, so if I have misunderstood or misrepresented anything, I would appreciate anyone else's corrections or insight.

DC: (1) Hamdi does not definitively answer the question here, but the Court would have to draw a difficult-to-justify geographic distinction between that case and this one to say that the AUMF authority it recognized earlier is limited to foreign captures. Nothing on the face of the AUMF makes such a distinction. Perhaps the Court could say that the AUMF is unconstitutional to the extent it allows the executive to hold enemy combatants captured in the U.S., but that would be a very aggressive decision.

(2) Milligan involved the trial, conviction, and sentencing of a citizen-civilian in a place where the courts were open and functioning and away from the theater of war. There was no question in Milligan that the defendant could be held without trial for the duration of the hostilities. The holding doesn't apply to this case.

(3) Quirin, of course, allowed enemy combatants to be tried, convicted, and executed by military tribunal even though one of them was a citizen and even though all of them were captured in the U.S. -- away from any battlefield.

(4) Whether the Steel Seizure case helps al-Marri, or hurts him, depends on whether you think Congress has authorized detention of enemy combatants captured within the U.S. (See #1)
12.5.2008 8:05pm
einhverfr (mail) (www):
Simon Kardiner:

Al-Marri has already had multiple hearings, including one to contest his enemy combatant status.


The issue has to do with what due process is available. I maintain that he has not had *any* hearings that meet current accepted standards, therefore if he had 1000 hearings which didn't my opinion would be the same.

You have to remember that Hamdi essentially turns due process on its head for detained combatants by making people prove that they are innocent. In short, under the Hamdi precedent, one is guilty until proven innocent, not the other way around. This makes a great deal of sense for people detained so that they don't interfere with ongoing military operations, but if we generalize this outward, then it means that the fundamental protections of our liberty against arbitrary government force are in danger. I would further note that the 4th Circuit here is relying heavily on their decision in Padilla, and Padilla is a US citizen.

The Bush Administration has screwed themselves in this case because at most, one might be able to argue based on whatever case they have that Al-Marri was guilty of violating the 1998 Anti-Terrorism and Effective Death Penalty Act, but here I think if they had a strong case, it would have gone to trial. Since they asked for dismissing all of the other charges (credit card fraud, etc), it seems that there are few options left in this case.

It would be a greater danger to American liberty for the government to indefinitely detain people they claim to believe but cannot prove are guilty of conspiring to perform terrorist attacks while those they can prove go to jail for somewhat long, but finite sentences (to be released during their natural lives), that it would be for people such as Al-Marri to go free.
12.5.2008 8:16pm
einhverfr (mail) (www):
Vermando:

In particular, Justice Thomas completely endorsed the government's position, so counting heads, we should read him as a fifth vote for the most expansive reading of that opinion.


By my reading, Justice Thomas did completely endorse the government's position in Hamdi, but his opinion was also narrowly scoped to address detention by the military of enemies picked up on the battlefield. I am not at all sure he would endorse the view that the government can designate criminals awaiting trial as enemy combatants and therefore detain them indefinitely.
12.5.2008 8:20pm
SKardner (mail):
The issue has to do with what due process is available. I maintain that he has not had *any* hearings that meet current accepted standards

Good luck to the advocate who argues that. On his disbarment hearing.
12.5.2008 8:33pm
SKardner (mail):
Which specific armed conflict is Al-Marri involved in?

Have you read the AUMF? Al-Marri received training, financing, and orders from Al-Qaeda. He came here on a specific mission against the country, just like the 9/11 hijackers. Your logic would make the President powerless to take action against 9/11, which the AUMF was passed to prevent going forward. If you are going to make absurd arguments, at least have the decency to phrase them as absurd assertions rather than questions purporting to have rhetorical weight.
12.5.2008 8:37pm
einhverfr (mail) (www):
Bah... My memory must be getting muddled. On re-reading Thomas's dissent in Hamdi it seems he would apply the same considerations on the administration's say-so anywhere....
12.5.2008 8:43pm
einhverfr (mail) (www):
SKardner:

Have you read the AUMF? Al-Marri received training, financing, and orders from Al-Qaeda. He came here on a specific mission against the country, just like the 9/11 hijackers. Your logic would make the President powerless to take action against 9/11, which the AUMF was passed to prevent going forward.


Yes I have, but prisoners of war (as defined in Hamdan) can only be detained for the period of active hostilities.

If this means Afghanistan, then when active hostilities (i.e. combat operations) have ceased there, then Al-Murri can no longer be detained.
12.5.2008 8:45pm
einhverfr (mail) (www):
SKardner:

Would you read the AUMF to mean that the President could indefinitely detain or kill any US citizen merely because the POTUS's office issues a statement saying he/she was involved in 9/11? With no time or space limit?

Would that really be Constitutional?
12.5.2008 8:48pm
einhverfr (mail) (www):
Professor Carpenter:

I know you are a professor of law rather than history, but I couldn't help seeing this comment and wondering:

I make no defense here of the broad authority Congress gave the President in the AUMF and I am personally more comfortable with the Scalia dissent in Hamdi, which argued that citizens must either be tried or released.


Would you draw strong parallels between this AUMF if broadly applied and the Roman Senate and Assembly providing Felix Sulla with the office of dictator, but without a time limit?

If we can reasonably compare Bush to Felix Sulla, does that make Obama similar to Julius Caesar?
12.5.2008 9:12pm
SKardner (mail):
Would you read the AUMF to mean that the President could indefinitely detain or kill any US citizen





Al-Marri is alive. Al-Marri is not a U.S. citizen. So your question is irrelevant.
12.5.2008 9:32pm
SKardner (mail):

Yes I have, but prisoners of war (as defined in Hamdan)




If you claim that Al-Marri is a prisoner of war, you reject the claim that he is a civilian. Those opposing Al-Marri's detention in this case claim he is a civilian. Your idiosyncratic misunderstanding of this case is not what the Supreme Court granted cert to decide.
12.5.2008 9:35pm
SKardner (mail):

If we can reasonably compare Bush to Felix Sulla, does that make Obama similar to Julius Caesar?



You are crazy.
12.5.2008 9:36pm
einhverfr (mail) (www):
SKardner:

Al-Marri is alive. Al-Marri is not a U.S. citizen. So your question is irrelevant.


I think the 4th Circuit's decision rests to a large extent on their decision in Padilla v. Hanft.

Padilla is a US citizen.

Furthermore, if military detention against US citizens detained on US soil is allowed under the AUMF (per the Padilla case and the 4th Circuits ruling there), then why limit military force to mere detention? Why not allow F-22's to bomb houses of suspected Al Qaeda operatives? If one is authorized, the other seems to be as well.

Finally, since Hamdi establishes a guilty until proven innocent standard, what makes you think *you* could prove you are NOT an Al Qaeda operative?
12.5.2008 9:37pm
SKardner (mail):

Padilla is a US citizen.




Padilla is alive.
12.5.2008 9:45pm
einhverfr (mail) (www):
SKardner:

What does "Military force" mean to you?

Where does the authorization in the AUMF end?
12.5.2008 9:55pm
SKardner (mail):

What does "Military force" mean to you?

Where does the authorization in the AUMF end?




Thankfully, Article III courts do not decide advisory questions, so these abstract musings are wholly irrelevant to the specific case that is properly before the Supreme Court.
12.5.2008 9:59pm
einhverfr (mail) (www):
SKardner:

If you claim that Al-Marri is a prisoner of war, you reject the claim that he is a civilian. Those opposing Al-Marri's detention in this case claim he is a civilian. Your idiosyncratic misunderstanding of this case is not what the Supreme Court granted cert to decide.



My point you were responding to not what the Supreme Court has to decide, but rather what the definition of a prisoner of war would require (release after active hostilities, that is, combat operations, end).

Going back to what Hamdi actually decided (from the plurality opinion):

Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.


In other words, the government can provide far less than normal evidence and it is on the detainee to prove his innocence.

For example, suppose one of your co-workers tells the FBI they think you are an Al Qaeda operative. Under Hamdi you have the burden of proving them wrong.
12.5.2008 10:01pm
einhverfr (mail) (www):
BTW what is at issue is the guilty until proven innocent standard of Hamdi as applied to this case. The rest of our arguments are either commentary or in some cases irrelevant.
12.5.2008 10:03pm
SKardner (mail):

In other words, the government can provide far less than normal evidence and it is on the detainee to prove his innocence.



Even if "normal evidence" were a legal standard, I would doubt you knew what "normal evidence" is. In any event, Al-Marri has received due process in this context as defined by the Supreme Court. Your problem seems to be with the very Justices you are counting on to overturn their own prior determinations.
12.5.2008 10:05pm
Thomas_Holsinger:
einhverfr,

Tell us what charges were brought against Confederate POW's during the Civil War, and what charges were brought against German POW's in World War Two, to justify their detention.

You assume that detention of enemy combatants, and detention of criminal accused during the period between arrest and trial, are the same thing.

This assumption is flaming nonsense. Its repetition harms your credibiilty.
"You have to remember that Hamdi essentially turns due process on its head for detained combatants by making people prove that they are innocent. In short, under the Hamdi precedent, one is guilty until proven innocent, not the other way around."
12.5.2008 10:06pm
SKardner (mail):

BTW what is at issue is the guilty until proven innocent standard of Hamdi as applied to this case.




No. It's not.
12.5.2008 10:06pm
einhverfr (mail) (www):
Thomas Holsinger:

Tell us what charges were brought against Confederate POW's during the Civil War, and what charges were brought against German POW's in World War Two, to justify their detention.


There is a fundamental difference there, as I have mentioned before. We are talking about a "war on terror" which will probably never end, so this detention is indefinite.

This is why no due process was necessary-- this was limited detention for the purpose of preventing people to return to armed conflict, not merely dangerous activity.

Furthermore, when we look at Rasul, Hamdi, and related cases, the courts even from the first have been treating these conflicts as fundamentally different than WWII and the civil war. In these decisions, the executive is more restrained than it has been traditionally.

Otherwise, if we assume a perpetual war, with executive say-so as to whom they detain, doesn't this effectively mean an end to habeas corpus?
12.5.2008 10:22pm
SKardner (mail):

Otherwise, if we assume a perpetual war, with executive say-so as to whom they detain, doesn't this effectively mean an end to habeas corpus?




Al-Marri already had a habeas hearing.
12.5.2008 10:27pm
Thomas_Holsinger:
einhverfr,

You just can't stop making off-the-wall assumptions and arguing as if those were true.

Sometimes you make sense, and you've seen me agree with you today, but this preference for unreality makes productive discussion problematic.
12.5.2008 11:00pm
einhverfr (mail) (www):
SKardner:

You do realize that this *is* an appeal of the habeas proceedings, do you not?
12.5.2008 11:05pm
Simon Kardner (mail):

You do realize that this *is* an appeal of the habeas proceedings, do you not?



It seems you are unaware of the absurdity in the argument that you have not received a habeas hearing when you refused to participate in the first habeas hearing and then you appeal an appellate decision that grants you an additional habeas hearing on remand.
12.5.2008 11:47pm
Howard Gilbert (mail):
Ali al Marri is either an enemy soldier captured on a military mission or an innocent civilian detained in error. Instead of choosing sides, consider both alternatives.

Assume he is an innocent civilian. Then Milligan applies without reservation. As a lawful resident, he is protected by the Constitution and cannot be deprived of liberty without due process. We understand what that process would be in criminal cases and other normal non-criminal proceedings (deportation, commitment, quarantine, material witness, contempt, ...). Note that only in a criminal case does he have a right to remain silent and does the government have a burden of proof beyond a reasonable doubt. In commitment to a mental hospital, the person alleged to be mentally ill has to talk to the doctors.

However, if he is an enemy soldier then an entirely different set of rules kick in. His case is controlled by international law, not the Constitution. Generally, he has no right to Habeas or any other access to the courts. [Hamdi did not say that enemy soldiers have a right to process, it said that people claiming to be innocent civilians have a right to argue that claim.]

If we knew to an absolute certainty which applies, then we would know how to proceed. The reason why we do not have a process to resolve it is that the issue did not arise in previous wars. In 1942 if a US unit in North Africa came upon a guy lost in the desert who was wearing a German army uniform, who carried a German army ID card, and who in German gave them his name, rank, and serial number, then they were pretty certain he was a German soldier.

When you go to Law School you learn to think like a lawyer. Lawyers imagine that process is all there is. This is reinforced by the Constitutional principle that the accused is innocent until proven guilty in a court of law. Other professions have more flexibility deciding what is true. You don't need a weatherman [or a judge] to know which way the wind blows.

If someone is captured in a bank holding a gun after giving the teller a note demanding money, then a lawyer will still defend him. The Constitution tells us he is innocent until proven guilty in a court of law, but exactly where the uncertainty is supposed to come from is unclear. The defense lawyer argues that every confession was forced, that all the evidence is planted, that all the witnesses are biased. Then the jury finds him guilty and we go on to the next case.

Assume the evidence is not absolutely certain, or that we still want to test it before an impartial tribunal. Unfortunately, no such test is available. This is not a criminal or a civil matter. It cannot be brought before a judge by the government. So to be fair, the government should not be criticized for not proving in court what cannot even be brought before the court.

Under Article V of the Third Geneva Convention, if there is doubt whether someone is entitled to POW status, then he is entitled to a battlefield tribunal. It is not a lot of process, but it is the only process provided in international or domestic law. Until Hamdi tried to craft it, there was no formal way to choose between the two possibilities. Nor is there any principle of "civilian until proven soldier" in any context.

In WWII 435,000 enemy soldiers were captured and held without any process at all. Note I did not say they were captured on some foreign battlefield. The first EPW captured in WWII was the captain of a two man submarine that got lost on the way to Pearl Harbor, had an accident, and washed up on a surfing beach in Hawaii the next day. He was on US soil. It doesn't matter if you are a mile, a hundred miles, or a thousand miles from any battlefield. It doesn't matter if you are in or out of the US. What matters is the uniform, ID card, and actual status.

The critics don't seem to care what evidence the governement has. Even when it is seemingly beyond question, that is not good enough. The US detained Jose Padilla because his early military personnel file had fallen into allied hands in Afghanistan. They had his enlistment papers and records from Basic Training. Then when questioned by the FBI he admitted to his enlistment, training, service as a soldier, recruitment into a unit planning an attack on the US, training in demolition, retreat to Pakistan, transfer to KSM, and preparation for the mission to the US. He repeated this over thousands of hours of videotaped interrogation by the FBI and military.

Jose Padilla is the best document and most certain enemy soldier in the history of war. Yes he was not given the process he would be entitled to if he robbed a bank, but the government doesn't claim he robbed a bank.

It is true that the government has never presented all its evidence in a court of law. It wasn't asked to. In 3 1/2 years of litigation, Padilla's lawyers never contested whether he was an enemy soldier captured on a military mission. As with al Marri's appeal to the Supreme Court, Padilla asked the judges to assume that he was an enemy combatant and release him anyway because US law did not allow his indefinite detention.

We know in Padilla's case the government's evidence is overwhelming. If you want to join the tin foil hat crowd you can claim the government is lying, that they forced his statements and manufactured the documents. Even the Bush administration is not stupid enough to lie about something that can be subpoenaed by any judge or Senate committee interested in the matter. Padilla wasn't important enough to railroad, especially when the government had evidence and a sealed indictment of an old crime that could put him away for years. The same could be said of al Marri.

We don't know what evidence the government has that al Marri is a soldier. Presumably it was gathered among the papers, computers, and statements obtained after the capture of KSM, Binalshibh, al Baluchi, al Harsawi, and the others in Pakistan. We know al Marri isn't talking, so there is no thousand hours of videotaped autobiography.

If al Marri loses in the Supreme Court, then the government will have to prove something to Judge Floyd. They have evidence, and justice requires that the government be both required and permitted to present its evidence. You may have a different view than I about the rules and burden of proof, but the courts can figure that out. If the Supreme Court has ideas, I am sure Judge Floyd will listen.

However, if you believe the Supreme Court should grant the motion for summary judgement, then you are not interested in evidence or process. You are saying that if even if everything the government claims is true, the US cannot hold even a dangerous enemy soldier because Congress did not explicitly authorize it. In this view the facts don't matter, so it would not have mattered what the government did or didn't prove previously in court.

Obama will have a chance when taking office to see all the evidence that has not been made public. He will also learn what the government is keeping secret(that it can decrypt computer disks, that it recorded phone calls, whatever). If at that point he is himself convinced to an absolute certainty that al Marri is an enemy soldier on a military mission, then he should continue to fight this case in court. He will betray no principle, because there never was a principle here.

People who don't know what is true or false have made assertions of principle based on random, haphazard thinking. "If the President can detain al Marri then he can detain any citizen." Well yes, but only if that citizen is an soldier in a foreign army at war with the US who entered the US pretending to be a civilian while actually on a military mission under the command of the most notorious commander in the enemy army. After that we return to the question of what does the government have to prove and who does it have to prove it to, neither of which are questions of principle.

If Obama finds there is no convincing evidence here, then he should be all means let al Marri go. Don't fight on behalf of a bad case.

We should not criticize what he does, because we won't know what he knows. This is not to say that we should accept what a President does on faith. If Obama proceeds, the administration will still have to prove its case to Judge Floyd. That is where the truth of the government's claim should be tested. Anyone who criticizes with no information based only on rigid ideological principles has missed the change in administrations. That was the way Bush worked. Things are supposed to change now.

If Obama proceeds, and then al Marri wins because the Supreme Court decides that the AUMF was not explicit enough to detain him, then it should take even a Democratic Congress only a few minutes to override the decision by authorizing the detention explicitly. Again it would not be unreasonable for committees to ask to see the evidence, but assuming it is there, no viable principle requires us to release a dangerous enemy soldier during war because a previous law was not clear enough (and there is no ex post facto for enemy soldiers captured in war).

Al Marri is either a soldier or a civilian. That is a question of fact. Resolve that fact, and there are no remaining issues of law, principled or otherwise.
12.6.2008 12:00am
Simon Kardner (mail):

Al Marri is either a soldier or a civilian.



The notion that he is a civilian at this point is quite ridiculous. The Government filed a Brief In Opposition in which it argued that the case should be permitted to continue on remand in the district court. It asserted there, and has asserted in numerous filings, that it has phone records of calls to top al-Qaeda officials, a seized laptop with jihadist literature, al-Qaeda contact information, and operational plans for poison gas attacks, and documentary evidence of first-person training contacts with high-level al-Qaeda officials. It furthermore had enough evidence to bring a case for computer hacking and credit-card fraud in federal court, which the Government has repeatedly claimed the laptop shows was part of a means of financing a front company for Al-Marri's terrorist operations in the States.

Fully aware that this proof would have to be disclosed to the federal judge in the habeas proceeding on remand, the Government made these assertions. And fully aware that proof satisfying the federal rules of evidence and persuading a jury would have to be marshaled to prove the hacking and credit-card fraud case, the Government was prepared to proceed. Unless you believe that the Government is totally fabricating all of the evidence that it says it has, that there is no laptop, that Al-Marri never met with any top al-Qaeda officials, and that Al-Marri told the truth on his visa application to reenter the country, then the fanciful notion that he is a civilian is just that: a fanciful notion. Thomas Holsinger had it right. Some of the proponents of Al-Marri's innocence here are simply living in a world of unreality.

And, I will note that if Al-Marri loses, the case will be confined to its facts. So it will not -- I repeat, will not -- apply to citizens.
12.6.2008 12:23am
Vermando (mail) (www):
"Tell us what charges were brought against Confederate POW's during the Civil War"

This is hilarious considering that Ex parte Milligan is a Civil War case directly on point here. One can analogize perfectly from it to the present case, in which a person is accused of rendering assistance to a hostile war aim while in American jurisdiction.

I'm not saying that you can't get around it, or even that you can't offer an alternate reading of its facts, but it's actually really, really easy to show an example of a Civil War Confederate POW whom the Supreme Court said had to be charged and tried in a civilian court.

At least address and distinguish the cases which obviously go against your point when making your argument.
12.6.2008 8:06am
SKardner (mail):

This is hilarious considering that Ex parte Milligan is a Civil War case directly on point here.



That explains why Prof. Carpenter noted upthread that Milligan does not apply to this case.
12.6.2008 9:34am
einhverfr (mail) (www):
Howard Gilbert wrote:

The critics don't seem to care what evidence the governement has. Even when it is seemingly beyond question, that is not good enough. The US detained Jose Padilla because his early military personnel file had fallen into allied hands in Afghanistan. They had his enlistment papers and records from Basic Training.


Regarding the "detain for duration of hostilities and possibly charge with war crimes as defined by international law via military tribunals" vs the "try in a criminal court" I think there are reasons for drawing the distinction on a basis other than what evidence is had that someone is involved in terrorism. When someone is captured in the course of military operations, or when a detention otherwise bears a clear relationship to ongoing military operations, I am personally quite happy to see military detention. These are key factors in my reading of the plurality's opinion in Hamdi. I don't think they really apply to Padilla or Al-Marri.

Like it or not, planning terrorist attacks as well as offering material support or even expert advice* to terrorists is a crime in this country under laws passed under the Clinton Administration as well as other times. I think that if this is the substance of the evidence, then this is the appropriate way forward.

* THe Bush administration at one point contended that placing a hyperlink on a web site to Hamas's official site was giving "expert advice" and "material support" but I don't understand why advocacy in favor of Hamas would be unprotected while advocacy in favor of the KKK would be protected as per Yates and Brandenburg.


Generally, [an enemy soldier] has no right to Habeas or any other access to the courts. (Hamdi did not say that enemy soldiers have a right to process, it said that people claiming to be innocent civilians have a right to argue that claim.)


In terms of habeas by foreign detainees, you may want to look at Rasul v. Bush. This case extended habeas corpus in unprecedented ways, including to foreign nationals captured on the battlefield... For this reason the fact that German and Confederate POW's had no access to habeas corpus is probably not relevant to this case.


We know in Padilla's case the government's evidence is overwhelming.


Is it stronger than the government's case that Lori Drew intended to cause emotional harm to Megan Meiers (noting that the jury acquitted her of charges relating to that question)? I note that in both the Lori Drew and Jose Padilla cases, the most serious charges ended in acquittal. In other words the case in some areas was strong, but in other areas was probably less so.

Also, I think that if the government was confident that they could have won in the Supreme Court, they would not have transferred him to federal court on the eve of the hearing.


That is where the truth of the government's claim should be tested. Anyone who criticizes with no information based only on rigid ideological principles has missed the change in administrations. That was the way Bush worked. Things are supposed to change now.


I think there are two important questions. The first is that given that his detention seems to have no direct impact on ongoing military operations (as opposed to acts of organized crime), what is necessary to show he is an "enemy combattant?" The second is, does that term really apply in this context?

I think the fundamental question is whether terrorists (or even specifically Al Qaeda) are solely the target of military operations or whether terrorist attacks are still a matter of criminal law in at least some cases.

I make no claim that Al-Marri is innocent. They would not have been pushing for a trial prior to this determination if they didn't have some strong evidence of crimes he was alleged to have been involved. However, if the substance of the actions are criminal rather than military* in nature, then criminal court needs to apply.

* I suspect a lot of the disagreement is how we define "military." I would limit it to armed conflict.
12.6.2008 12:05pm
Parenthetical:
Howard Gilbert wrote:
Ali al Marri is either an enemy soldier captured on a military mission or an innocent civilian detained in error.

He may well be neither. He seems to resemble more closely an unarmed terrorist alien. One that probably would have been subject to special provisions in the Patriot Act. Indeed, the Patriot Act seems to be a much more particular grant/limit of authority here than the AUMF.

That, in essence, splits the difference between enemy soldier and innocent civilian.

It also avoids some troubling Constitutional difficulties that arise when a putative combatant:

1) Moves here with his family and laptop (the apparent weapon),
2) Enrolls in graduate studies,
3) Runs afoul of criminal laws (bank/computer fraud etc.), and
4) Is held under civilian criminal procedure for 18 months.

That is substantial enough connection to the country that Due Process guarantees would normally attach.

After all that has transpired, declaring that he was on or fleeing a battlefield raises a host of Constitutional problems that the courts might well avoid (I vaguely recall a interpretive cannon that had something to do with avoidance).
12.6.2008 8:25pm
Howard Gilbert (mail):
The government contends that al Marri was a soldier in the enemy army who entered the US on a military mission under the command of KSM. Since they did not transfer him to military custody until a few months after KSM was captured in Pakistan, we may assume that part of their evidence was associated with the materials captured with him. The fact that al Marri had been held for over a year on criminal charges before the US discovered that he was actually a soldier on a military mission causes no Constitutional problems. They treated him as a criminal when they thought he was a criminal, but then treated him as a soldier after they discovered he was a soldier.

If he was not a soldier, then he is a civilian. It doesn't matter if he is innocent or a terrorist, if he committed bank fraud or intended to blow something up. He is subject to law enforcement and is not subject to military custody. There is no provision in the US constitution to detain civilians in military custody based on the particular criminal offense with which they are charged. The military only has jurisdiction based on military status, and being a terrorist is a criminal charge not a military rank.

Except there is a third category I forgot to mention previously. Civilians who have pledged their loyalty to the enemy, either because they are citizens of a country at war with the US or because they attached themselves to the enemy army in a civilian capacity (Salim Hamdan is the only clear current example) can be detained by the military during hostilities as a Civilian Internee (CI). As the Supreme Court points out in Eisentrager, legal resident enemy alien civilians were legally detained during WWII simply because they were, for example, German citizens resident in the US who were declared to be a security threat (particularly those who were members of the German American Bund). I see nothing in the government's position to indicate that they are taking this position in al Marri's case, but it does represent the only mechanism by which enemy alien civilians can be detained by the military without running into problems with Milligan.
12.6.2008 11:57pm
einhverfr (mail) (www):

As the Supreme Court points out in Eisentrager, legal resident enemy alien civilians were legally detained during WWII simply because they were, for example, German citizens resident in the US who were declared to be a security threat (particularly those who were members of the German American Bund).


Do you think (along with the Scalia dissent) that Rasul v. Bush largely overrules or at least strongly limits Eisentrager as a precedent?
12.7.2008 1:15pm
Howard Gilbert (mail):
The latest case was Boumediene, where the court relied upon Eisentrager (while explaining what it really meant and not what everyone thought it meant) and distinguished it from the current decision. Eisentrager says that the two categories of non-resident enemy aliens, EPWs (Enemy Prisoners of War) and CIs (Civilian Internees) have no Constitutional recourse to US civilian courts to challenge their detention during war and occupation.

Rasul said that the Habeas statute (subsequently changed by the DTA and MCA) covered detainees at Guantanamo. It did not contradict Eisentrager since Congress can always grant rights not provided in the Constitution.
Hamdi said that a US citizen held as an EPW or CI had a due process right to contest his classification before an impartial tribunal, although that might mean simply a CSRT or Article V (Geneva Convention) tribunal. It does not contradict Eisentrager because it applies to citizens and not aliens.
Boumediene found that Common Law Habeas was a judicial power (not an individual right) and that judges at their discretion could issue the Writ wherever their power to issue other judicial orders extended (Guantanamo for example). This can be reconciled with Eisentrager because it is simultaneously possible that detainees have no right to challenge any aspect of their detention in US Courts, but that judges have a sua sponte power to question the legal validity of the same detention.

[Curiously, the only Justice who seemed to believe Boumediene overturned Eisentrager was (again) Scalia's dissent where he claimed that now EPWs would automatically have access to Habeas. That doesn't appear to be a logical consequence of the opinion, but he asserts it is.]

After Boumediene, the Supreme Court remanded to the lower courts the question of whether any detainee deserved the Writ and of what type of inquiry should be made if the Writ were issued. Eisentrager deals with the issues remanded (whether the lower court should inquire into such detentions in the first place), while Boumediene only finds that the power to do so could not be removed by the MCA.

Eisentrager may or may not survive the next round when the current Habeas cases head back to the Court. Before that happens, the Obama administration has an opportunity to clean up the Bush mess by allowing some detainees to claim EPW status and then clarify the status of remaining detainees as Civilian Internees under some more explicit and coherent legal theory.

In any event, during WWII more than 10,000 German citizens legally in the US were detained by the military for security purposes. Al Marri was a resident alien that the government alleges to have been directly under the orders of enemy military commanders. If he is ruled to be a civilian, then the detention of CI's remains a legal option under international and US law. The cases from Eisentrager to Boumediene only question the level of review that might be provided by the Article III courts of facts justifying such a detention, and do not render such detention illegal per se, as a matter of law, as would be required for al Marri to prevail in his current motion for summary judgement before the Supreme Court.
12.7.2008 2:29pm
einhverfr (mail) (www):
Howard Gilbert:

On further thought, it seems that Boumediene may be very close to Al Marri in a number of important ways. If the 4th Circuit's majority opinion that the evidence provided is insufficient (in Al Marri's case) and asking for an additional hearing, this seems to be taking the district court's analysis of Boumediene as its basis (the reason why 5 of the six plaintiffs in Boumediene were released turned largely on the government being unable to provide the court enough information about its classified source).
12.7.2008 4:17pm
Parenthetical:
I realize that the government contends al Marri is "a soldier in the enemy army."

My point was simply that the AUMF doesn't speak directly to using military authority within the United States. Moreover, there is long tradition in America of not using military authority in this way.

To a lesser degree, the government allegations don't make it clear that al-Marri is a combatant under the law of war as it has heretofore been understood.

When you contrast those uncertainties against the Patriot Act, you find that Congress described quite precisely the allegations that the Rapp declaration makes against al Marri.

If the particular (the Patriot Act) governs the general (AUMF), Congress seems to have already entertained, and prescribed, how to handle someone like al Marri.
12.7.2008 4:29pm
Howard Gilbert (mail):
"the AUMF doesn't speak directly to using military authority within the United States. Moreover, there is long tradition in America of not using military authority in this way."

The 19 hijackers on 9/11 were in the US, and they were under the command of KSM. The AUMF authorizes the President to use military force against the countries, organizations, and persons responsible for 9/11 for the purpose of preventing additional terrorist attacks. The country was Afghanistan, the organizations were al Qaeda and the Taliban, and the people were KSM, Binalshibh, al Baluchi, al Harsawi, etc. The next terrorist attack would have been Padilla's "apartments operation", although al Marri was already in the country eight months before Padilla and intended some form of sabotage that doesn't appear to be terrorism. Filling in the names for the descriptions given in the AUMF, it authorized the use of military force against KSM for the purpose of preventing Padilla or al Marri from carrying out their missions.

There is actually a long tradition of precisely this type of military detention. The first example occurred in Sept/Oct 1780 when Major John Andre was captured behind US lines in civilian clothes pretending to be a civilian while returning from a meeting with Benedict Arnold. Andre had the plans for the defense of West Point stuffed in his boot. He was detained by the military under the orders of George Washington, then tried by a military court, found guilty of "crossing lines without uniform" and was hung. The Supreme Court cites the case as precedent in its Quirin decision in 1942 authorizing the detention and execution of Huber Haupt, an American citizen who enlisted in the German army and entered the US pretending to be a civilian for the purpose of sabotage. Ten German saboteurs were detained during WWII, 8 in 1942 and 2 in 1945.

What is new is the idea that enemy soldiers guilty of crossing lines without uniform will be simply detained by the military and not subjected to a Court Martial and execution.
12.7.2008 4:51pm
Howard Gilbert (mail):
"To a lesser degree, the government allegations don't make it clear that al-Marri is a combatant under the law of war as it has heretofore been understood."

This is actually a much more complicated objection. Combatant has two meaning. One is an enemy soldier in uniform authorized to engage in combat. Al Marri was a combatant in this sense in Afghanistan, but not in the US.

In Quirin the Supreme Court makes it clear that an enemy soldier who without uniform enters the US for the purpose of gathering military information or committing sabotage is an unlawful combatant. Even if unarmed, his entry into the US is itself a belligerent act equivalent to armed combat because his spying or sabotage will help the enemy kill American soldiers.

However, al Marri entered the US to conduct a completely non-violent act of economic sabotage that cannot be in any plausible way related to future military operations. If Bin Laden himself sends you to the US to tip cows for al Qaeda, that doesn't make you an enemy combatant.

Al Marri satisfies the formalisms. He was an enemy soldier. He was given a mission of sabotage under the orders of an enemy military commander. He did enter the US without uniform pretending to be a civilian. His entry was 8 days before the AUMF, but Quirin makes it clear that the offense is not simply crossing the boarder but also remaining in and moving around inside the US once hostilities begin. So everything is in place, except that the mission was not only non-violent but plausibly non-belligerent.
12.7.2008 5:12pm
Parenthetical:
There is actually a long tradition of precisely this type of military detention.

Perhaps we're both being too elliptical. I don't really disagree with what you assert above (particularly with regard to the novelty of not bring charges in some military forum when the conduct was plainly contrary to the law of war).

Both Andre and the Quirin cases flow from facts that far more easily fall within the military purview. Specifically, characterizing them as combatants is obvious (as was their violations of the law of war):

1) They all snuck into the country in uniform (or perhaps partially so in the case of some of the Quirin conspirators) aboard ships of war belonging to the enemy.
2) The objects of their plots were plainly military in nature (seizing West Point or bring explosives devises into the country to blow things up).

There are, of course, many other examples you could cite vaguely along these lines. The particulars vary, but the nexus of military characteristics is there.

Using military authority to detain indefinitely someone you allege conspired to commit bank fraud, however, is really quite foreign to our traditions. Even accepting the specific allegations in the Rapp declaration (as is appropriate at this stage of the proceedings), al Qaeda "had tasked Al-Marri with exploring the possibility of hacking into the main frame computers of banks inside the U.S."

All of the allegations central to invoking military jurisdiction seem too tenuous in this case. I'm not a student of this area of law or history. Perhaps there really is a great American tradition that these circumstances fit squarely within, but it would be news to me.
12.7.2008 6:50pm
Parenthetical:
Nevermind (should have refreshed before I posted that belated reply).
If Bin Laden himself sends you to the US to tip cows for al Qaeda, that doesn't make you an enemy combatant.

Now there's an image. Hat tip!
12.7.2008 6:53pm
einhverfr (mail) (www):
Mr Gilbert:

The next terrorist attack would have been Padilla's "apartments operation", although al Marri was already in the country eight months before Padilla and intended some form of sabotage that doesn't appear to be terrorism.


In all of your examples provided thus far in support of this sort of detention, the detained individuals were citizens of foreign or secessionist states. There are some examples of US citizens being detained in this way during the two times when habeas corpus was suspended by Congress (once during the civil war and once immediately after). Yet Padilla is a citizen of the US and was detained in this manner.

Are you suggesting that the AUMF then provides the president the capacity to detain anyone he believes in good faith is involved in Al Qaeda without regard to nationality (this seems to be Justice Thomas's view, AFAICS, but no other justice on the court seems to go that far), citizenship, or other considerations?
12.8.2008 12:19pm
einhverfr (mail) (www):
I guess what bothers me about Mr Gilbert's assertions has to do with the Hamdi precedent as applied to cases like this.

The Hamdi and related precedents suggest that the civil courts can be used to sue for one's release, and that the legal standard used to gain freedom is one of preponderance of the evidence. This is the same standard used in civil proceedings, not the one used in criminal proceedings. Furthermore, it is not clear what information the defence is entitled to when protecting against charges based on classified information.

This seems to result in a standard of guilty until proven innocent (but where one is not entirely sure what, precisely, the accusation is), where a certain evidentiary burden is met (see the district court's outcome in Boumediene v. Bush, freeing 5 of the 6 plaintiffs in the case simply on the basis that the government did not meet an evidentiary burden (a single classified hearsay source absent corroborating evidence was deemed insufficient, but where corroborating evidence was presented, it was deemed sufficient).

Extending this outward to cases like Padilla is very dangerous. My concerns are related simply to the fact that this relates to indefinite imprisonment merely on the basis of say-so by the executive (classified reports and the like). If this were a conflict where we even had a specific, defined victory condition, I might agree. But even if Osama bin Ladin surrenders tomorrow, who is to say the conflict is over? Wouldn't all the same terrorist cells be in place? Isn't this a perpetual war?
12.8.2008 5:33pm

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