President denied authority to detain civilians in U.S.
UPDATE at 3:15 p.m. The Justice Department said on Monday that it will ask the full 12-member Fourth Circuit Court to reconsider en banc the panel decision in Al-Marri v. Wright (Circuit docket 06-7427). Howard Bashman’s How Appealing blog now provides a link to the Fourth Circuit opinion.
The Fourth Circuit Court, in a 2-1 ruling on Monday, declared that President Bush did not have the authority to order the military to seize and indefinitely detain a civilian who was taken from his home in Peoria, Ill. For the Qatar national who has been held by the military since 2003, the Court said, “military detention…must cease.” The ruling barred military detention of any civilian captured inside the U.S., but the Court said it was limiting its decision to those who are in the country legally and have established connections here.
“The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,” the Court said.
The government has the right to ask the full Fourth Circuit bench to reconsider the case, or to take it directly to the Supreme Court. The Fourth Circuit has generally been quite favorable to the government in war-on-terrorism cases. It is unclear whether the Supreme Court would hear the case on a government appeal, because the decision technically does not conflict with a recent D.C. Circuit Court ruling denying rights to foreign nationals captured abroad and held at Guantanamo Bay, Cuba, outside U.S. territory.
The Fourth Circuit panel majority ruled that Congress has not taken away the legal right of Ali Saleh Kahlah al-Marri to challenge his detention, thus limiting the reach of the Military Commissions Act’s court-stripping provisions. “As an alien captured and detained within the United States,” the Court said, “he has a right to habeas corpus protected by the Constitution’s Suspension Clause.” The Court said, though, that it was avoiding “difficult constitutional questions” about the MCA’s court-stripping provision, finding that it could interpret the MCA to stay clear of those issues. It found that the MCA withdraws habeas only for those properly detained as enemy combatants, and it ruled that al-Marri’s detention did not meet that test because of the lack of presidential authority.
The panel concluded that it would grant al-Marri habeas relief, though not immediate release. It said the government had accused him — though not with formal charges — of “grave crimes.” The case was returned to a federal judge in South Carolina with instructions to order the Pentagon to release al-Marri from military custody “within a reasonable period of time to be set by the District Court. The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.”
Al-Marri, a citizen of Qatar, was arrested — the Circuit Court said legally — by civilian authorities ini Peoria, Ill., in December 2001; he was there to work on a master’s degree at Bradley University. Later, in 2003, he was declared an enemy combatant, and transferred to the U.S. Navy brig in Charleston, S.C., from which he challenged his detention. He lost in a U.S. District Court, in a decision overturned on appeal Monday.
The key part of the ruling on presidential powers declared: “Even assuming the truth of the government’s allegations [against al-Marri], the President lacks the power to order the military to seize and indefinitely detain al-Marri….[W]e have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian….The President’s constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri without criminal process any more than they permit the President to order the military to seize and detain, without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing.”
“In light of al-Marri’s due process rights under our Constitution and Congress’s express prohibition in the Patriot Act on the indefinite detention of those civilians arrested as ‘terrorist aliens’ within this country,” the majority said, “we can only conclude that in the case at hand, the President claims a power that far exceeds that granted him by the Constitution.”
In an opinion written by Circuit Judge Diana Gribbon Motz, the Court said: “We do not question the President’s war-time authority over enemy combatants; but absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President with the power to exercise military authority over civilians within the United States.”
The opinion was joined by Circuit Judge Roger Gregory. U.S. District Judge Henry Hudson, sitting on the Circuit Court by special appointment, dissented. The majority issued a 77-page decision. Judge Hudson, in his nine-page dissent, argued that the President had authority under Article II and underethe 9/11 Resolution. Judge Hudson, however, agreed with the majority that the federal courts retain authority under the Constitution to hear habeas challenges by civilians detained by the military in the U.S.
The Circuit Court’s ruling on jurisdiction interpreted what Congress had done about federal courts’ authority in last year’s Military Commissions Act. It concluded that Congress had set up a two-step process that the Government must meet before habeas is cut off. To remove jurisdiction over a detainee’s habeas challenge, it said, there must first be an initial decision to detain; then, there must be a subsequent official decision by the government that the initial decision was “proper.”
Under MCA, Judge Motz wrote, President Bush’s order to the military to detain al-Marri was the first step — an initial decision to detain. But, it concluded, there has been no second step. Under the law, she said, enemy combatant status must either be determined by a Combatant Status Review Tribunal — the military administrative panels set up by the Pentagon — or by some other “Executive tribunal.” Neither has made such a ruling as to al-Marri, the decision said. (The CSRT panels are operating only for foreign nationals being held at the U.S. military prison camp at Guantanamo Bay, Cuba.) The President’s designation of al-Marri does not satisfy both steps, the Court ruled.
The panel majority rejected a government argument that it could satisfy the second step by giving al-Marri a review by a CSRT. But the Court said Congress’ authorization of the CSRT process does not apply to civilians captured and held within the U.S. “Congress sought to eliminate the statutory grant of habeas jurisdiction for those aliens captured and held outside the United States who could not lay claim to constitutional protections, but to preserve the rights of aliens like al-Marri, lawfully residing within the country with substantial, voluntary connections to the United States, for whom Congress recognized the Constitution protected the writ of habeas corpus.”
The MCA’s broader move to strip courts of habeas jurisdiction, by saying it applied to foreign nationals captured by the U.S. and held at places other than Guantanamo Bay, only means individuals being detained abroad, outside the U.S., the Court concluded.
“We must conclude,” the majority wrote, “that the MCA does not apply to al-Marri. He was not captured outside the United States, he is not being held at Guantanamo Bay or elsewhere outside the United States, he has not been afforded a CSRT, he has not been ‘determined by the United States to have been properly detained as an enemy combatant,’ and he is not ‘awaiting such determination.’ The MCA was not intended to, and does not, apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States. Accordingly, the Government’s jurisdictional argument fails and we turn to the merits of al-Marri’s petition.”
The Court went on to rule that, as an alien with established connections to the U.S. and lawfully living here, al-Marri has a constitutional right to due process, and that right bars his detention by the military unless it is clearly established that he is an “enemy combatant.” The Court found that al-Marri has not been properly designated in that way, rejecting the government’s argument that the President had authority to make that determination under the post-9/11 Resolution and, alternatively, under his Executive powers provided by Article II of the Constitution.
It interpreted the 9/11 Resolution as authorizing designation as “enemy combatant” only of those who were affiliated with “the military arm of an enemy nation.” Al-Marri was not in the military of any country when he was captured, and his home country, Qatar, is not an enemy of the U.S. and in fact has friendly relations with the U.S., the Court noted. The Resolution, it stressed, does not apply to someone who allegedly engaged in criminal conduct only “on behalf of an enemy organization” bent on harming the U.S. — such as al-Qaeda — unless that conduct occurred outside the U.S.
The Circuit Court found the government’s claim of “inherent” presidential authority to order military detention of civilians to be “breathtaking,” and was broad enough even to allow detention of U.S. citizens. Applying the late Justice Robert H. Jackson’s suggested framework for evaluating claims of presidential authority (concurring in Youngstown Sheet & Tube v. Sawyer in 1952), the panel found that President Bush was acting at the “lowest ebb” of presidential authority in ordering military detention of a civilian captured in the U.S. because that contradicted Congress’ provisions for terrorist detention under the Patriot Act of 2001. That, it noted, bars indefinite detention of those captured within the U.S. on suspicion of terrorism, and allows only short-term detention followed by deportation or civilian prosecution for crime.
Aren’t Motz and Gregory the two most liberal jurists on the Fourth Circuit? Indeed, isn’t Gregory the Clinton holdover that Bush let stay for political reasons? These are two liberal Clinton appointees.
Comment by Jacques McKenzie — June 11, 2007 @ 1:59 pm
Also, check the footnote: “the case at hand involves — and we limit our analysis to — persons seized and detained within the United States who have constitutional rights under the Due Process Clause.”
Comment by Jacques McKenzie — June 11, 2007 @ 2:03 pm
Suppose the government loses. In the end, the 4th Circuit orders the government is directed to release Al-Marri from military custody within “a reasonable period of time.” It may release him entirely, charge him with a crime, commence proceedings to deport him, hold him as a material witness, or hold him for a limited period of time under the Patriot Act.
But, there are fewer options for the government than the Court’s ruling would suggest. For the charges upon which Al-Marri was originally held, there are serious speedy trial, statute of limitations and time served issues. Should Al-Marri face new charges, there are issues of the taint the evidence against him may have of coercion used in obtaining evidence. Showing that Al-Marri is held in good faith as a material witness is difficult at this point, as he has been out of action for four years making his knowledge stale and tainted by prior coersion. And, Patriot Act detention is indeed for a limited period of time (does it apply at all when so much time has already been spent in executive detention?).
Deportation of Al-Marri to Qatar is probably the most attractive option for the Government if it loses in the U.S. Supreme Court. Indeed, giving the cooperativeness of the Qatar government, it might even amount to certain imprisonment upon arrival under Qatar’s monarchical legal system.
Suppose the government wins on the grounds set forth by the dissent in the 4th Circuit. Then you have a finding on the books that the MCA’s jurisdictional provisions are flat out unconstitutional. Surely, the government would appeal that finding a well. And, if the government and Al-Marri were both requesting review at the same time for different reasons, could SCOTUS resist taking this case as it resisted taking Boumedine? In any case, three of the four liberal judges would certainly vote for cert (based on Boumedine), and Justice Stevens, who kept his powder dry in Boumedine, probably out of doubts about how Kennedy would rule, would likely see the Al-Marri case as his best shot at making good law in this area because the facts are more favorable than in the other cases.
Unless the government can get, in en banc review, a four square favorable ruling on jurisdiction, it has to worry about what happens next.
The Al-Marri 4th Circuit ruling on both jurisdiction and the merits is the equivocating, distinction drawing kind of opinion one could easily imagine Kennedy feeling sympathy with. Its fact specific nature leaves open distinguishing opinions in the future on either jurisdictional or merits grounds. It is under the currently known facts a “one off” ruling with the least cost to war on terrorism policies and the biggest return for civil liberties. A ruling would provide the administration with a roadmap for future cases by engaging in prompt CSRT review and receiving great deferrenc from courts from mere declarations of administration officials that have to say specified things and are effectively unreviewable as to veracity.
Comment by Andrew Oh-Willeke — June 11, 2007 @ 3:50 pm
Or, the government could just argue that the majority’s pretense that AUMF does not exist was an inversion of the constitutional avoidance doctrine.
Comment by Jacques McKenzie — June 11, 2007 @ 4:43 pm
The Military Commissions Act “was not intended to, and does not apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States” writes the majority. Other than using it as another opportunity to push the typical Bush-bashing stance, I’m not sure why anyone is “shocked” by this ruling.
The definition of “illegal enemy combatant” in the MCA includes both citizens and noncitizens. The Court in Hamdi found “no bar to [the United States’] holding one of its own citizens as an enemy combatant,” but the majority required that detained citizens receive the opportunity to challenge an enemy combatant designation. To respect the narrow Hamdi decision, the MCA limits military commissions’ jurisdiction to aliens/non-residents only. The legal resident distinction was a bit blurry, but as I mention below, was of little consequence. The Bush administration has not seriously attempted to enforce the MCA against resident aliens (a thoroughly logical decision given Hamdi and Hamdan).
The MCA does not afford non-citizen and non-resident detainees the same right to challenge adjudications as citizens or legal residents. Section 950j in the Act strips courts of jurisdiction over any cause of action, including habeas corpus petitions, related “to the prosecution, trial, or judgment of a military commission . . . including challenges to the lawfulness of procedures of military commissions.” None of it applies to citizens or legal resident aliens! While the Bush administration has always lobbied for a broad interpretation that would cover both aliens and citizens (as they should, regardless of your personal feelings on the position), they had little chance or expectation of actually winning this case.
Despite the “harsh rebuke” label instantly applied by the MSM, this ruling is pretty much a straight reading of the MCA. Congress learned from the Court’s decision in Hamdi. More importantly it affects all of 2 detainees: Jose Padilla, who was already rendered to civilian custody under civilian charges, and Ali al-Marri, the appellant in this case. This ruling reaches none of the merits of the MCA itself, and has significance only because it represents another potential opportunity for the Supreme Court to rule on the MCA. I’ve written extensively on the Military Commissions Act, so I’ll spare the full reasoning for you here. Head over to SSRN (at the URL included in this post) or pick up a copy of Issue 4 of Indiana Law Journal Volume 82 if you want to know more about what I think on the MCA generally.
The DOJ plans to make a motion for rehearing and rehearing en banc in the case, and whoever loses will undoubtedly file a cert petition with the Supreme Court. We’ll see where this one goes (I agree with Andrew above that Kennedy is the key), but for now, don’t believe the hype: this is a generally meaningless ruling for both sides. Whatever your feelings on it, the MCA is still good law and this decision changes nothing.
-Doug Hass
Comment by Old Cowhand — June 11, 2007 @ 8:50 pm
Ok. I give. Who arrested this guy and detained him? The FBI, police, or the military?
What of the military’s role in all this? I would think there is a procedural issue in the arrest at the very least if the military was involved. If not, how did he get from civilian law enforcement to a military detention…was this done in the dead of night?
I would think that every citizen should be afraid – be very afraid – that military detention can be ordered by one man and that civilian law enforcement just hands someone over without a squabble.
Is anyone discussing this?
Comment by harold d. house — June 12, 2007 @ 2:32 pm
Is anyone discussing this?
Yes. Leftist moonbats.
Comment by Jacques McKenzie — June 12, 2007 @ 3:18 pm
Ahhh Jacques up from the spittle of daily life I see…
Leftist Moonbats? Is that code for “Jacques is braindead so just hurl sticks”? The Bush doctrine…if you don’t have an argument just yell louder.
Lookie here Jacques…ohhhh why not Jack Jacques? It is more American…real grip the rifle and pry it out of your cold chattering teeth perhaps…doesn’t sound so…dare I say…sissified.
Anyway Jack/Jacques…the consitution is why we do things in this country…assuming you know nothing of it…it is the central glue to entire society. As it is the most important document we collectively adhere to and cherish, it isn’t for sale, loan, or change unless there are a lot of people who want it so and vote that way to amend it…which has not been the case.
habeas corpus is the key to the rights preserved in that document for without habeas, there would be no access to a court of law to preserve or fight for an alledged abridgement of these rights…Clear so far? Follow closely.
For instance free speech means nothing unless, if denied it, you can go to court to address the denial…and a judge takes over things and arguments are made and a decision is made that is binding on all parties…Still following me? I know this is tough but its kinda basic so it has to be so clear that even a pinhead can get the idea.
So we have this fella in custody ready to go to trial on some serious shit. In the middle of the night those charges are dropped and some soldiers show up and take him away. (military acting as law enforcement perhaps???)… now he doesn’t get a trial. He can’t even get to a court. He really has trouble seeing an attorney. 4 years pass. .. finally someone tells The Decider in Chief…hey, President WooWoo, you can’t do this. We are a nation of laws under the constitution.
Now, tell me where I lost you?
Comment by harold d. house — June 12, 2007 @ 4:51 pm