Al-Marri case to be reheard
The Fourth Circuit Court on Wednesday agreed to reconsider the question of the President’s power to order the capture inside the U.S., and the prolonged detention afterward in a military prison, of a civilian suspected of terrorist ties. A majority of the Circuit Court’s judges voted to grant en banc review of Al-Marri v. Wright (Circuit docket 06-7427). The rehearing order can be found here.
The Bush Administration had sought en banc review of the June 11 decision by a three-judge Cicuit panel declaring that President Bush did not have the authority to order the military to seize and indefinitely detain a civilian who was legally in the U.S. and who was seized at his home in this country, so long as the individual had established ties to the U.S. The panel split 2-1 in the ruling. The case involves a Qatari national, Ali Saleh Kahlah Al-Marri. In seeking review of the case by the full Circuit Court, the Administration had argued that the ruling posed “an immediate and potentially grave threat” to national security.
The Circuit Court did not disclose how its members had voted on the en banc question, saying only that a majority had voted when polled to reconsider the case. The order said a hearing will be held at the Fourth Circuit’s Oct. 31 session.
The Fourth Circuit decision that is now vacated was discussed in this post.
“The question of the President’s power to order the capture inside the U.S., and the prolonged detention afterward in a military prison, of a civilian suspected of terrorist ties” is a completely one sided description that mistates the controversy. Nobody claims the President has a power to order the military detention of civilians.
The question is whether al Marri is a civilian or whether he is an enemy combatant as a previous panel of the Fourth Circuit found in Padilla v Hanft. Although there were differences in fact between Padilla and al Marri, they did not effect the legal issues. Padilla was found to be a saboteur and therefore unlawful combatant based on Quirin in which the Supreme Court said that Milligan does not apply. Al Marri was also found to be a saboteur, but then was classified as a civilian under an ICRC interpretation of the Fourth Geneva Convention, which then led to the conclusion that Milligan must apply since it covers civilians.
The en banc panel will have to reconcile the incompatible conclusions of law in two of the Circuit’s own cases. At no point will anyone claim that the President has any power to detain real civilians where everyone agrees that Milligan would apply.
Comment by Howard Gilbert — August 22, 2007 @ 6:56 pm
This decision found that al Marri was not an enemy combatant but instead was a civilian. It claimed this was not inconsistent with the previous decisions that found Hamdi and Padilla to be enemy combatants.
The Supreme Court noted that Hamdi was captured on the battlefield in Afghanistan holding an AK-47. Al-Marri furthermore found that he was a Taliban soldier (entitled to combatant status) and not al Qaeda (not entitled). Padilla had also been on the battlefield but was not captured. Al-Marri decided that Padilla was also Taliban (!!) and therefore became an enemy combatant at the same time and in the same way as Hamdi. He was captured later on when he attempted to enter the US while on an al Qaeda sabotage mission, but his status was determined months earlier in Afghanistan.
Specifically the al Marri decision ignores (and finds to be wrong) the section of Padilla v Hanft that deals with the sabotage mission itself. Refering to Huber Haupt, the one German saboteur in ex parte Quirin who was a US citizen, it noted: “Like Haupt, Padilla associated with the military arm of the enemy, and with its aid, guidance, and direction entered this country bent on committing hostile acts on American soil. J.A. 22-23. Padilla thus falls within Quirin’s definition of enemy belligerent, as well as within the definition of the equivalent term accepted by the plurality in Hamdi.”
Al-Marri v Wright directly contradicts the previous quote from Padilla, but the decision still claims that its findings are consistent with Padilla. Presumably they feel it is enough to agree with the outcome while rejecting some and rewriting the rest of the reasoning.
While some may comment on al Marri’s detention and treatment, upon closer inspection Al-Marri v Wright is exclusively about the legal status of al Qaeda and the physical scope of the battlefield. It would be fairly easy for the case to be bounced back to District Court without any of the issues people typically debate having been considered let alone actually decided.
Comment by Howard Gilbert — August 23, 2007 @ 1:50 pm