President’s domestic detention power tested

By Lyle Denniston
on Sep 19, 2008 at 1:30 pm

UPDATE Tuesday a.m.   The case has been docketed as 08-368.

Lawyers for the only detainee seized in the U.S. under presidential order and still in military captivity urged the Supreme Court on Friday to rule that no federal law and no part of the Constitution allows the President to order such detentions. 

The en banc decision by the Fourth Circuit Court upholding such power, the new petition argued, “cast a pall over the physical liberty of all persons in the United States….Neither liberty nor democracy is served when the people, and their legislators in Congress, labor in doubt about the elementary ground rules on an issue of such paramount national importance.”

The appeals court ruling, it added, “grants the executive discretion to displace the constitutional protections of the criminal justice system, including the right to speedy presentment, confrontation, and trial by jury, merely by alleging a connection to possible terrorist activity.  The lower court has replaced settled and historic protections with confusion.”

The petition in Al-Marri v. Pucciarelli can be downloaded here.  The multiple opinions of the en banc Circuit Court (a file of 216 pages) is available at this link.

The appeal was filed on behalf of Ali Saleh Kahlah Al-Marri, a Qatari national who was living legally in the U.S. when arrested at his home in Peoria, Ill., Dec. 12, 2001, and later declared by President Bush to be an “enemy combatant,” and turned over to the military.  The petition raises this single question:

“Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?”

The Fourth Circuit split 5-4 in July in findiing that the AUMF — the anti-terrorism resolution passed by Congress soon after the Sept. 11, 2001, attacks — gave the President the power to seize and hold terrorism suspects living in the U.S.  A separate 5-4 vote held that Al-Marri was entitled to a new opportunity in federal court to challenge his detention.  (A post discussing that ruling can be read here.)

The petition argued that the Supreme Court should review Al-Marri’s case now, not wait for any further challenge his lawyers mount in U.S. District Court in South Carolina.  (He is being held at the U.S. Navy brig in Charleston.)  Those proceedings, the petition said, “cannot resolve the core, threshold legal question” of domestic military detention power.

If the Court agrees to hear the case, it would take the Justices well beyond four major recent rulings arising out of the “war on terrorism,” confronting issues of domestic power of the U.S. military and of the President as Commander in Chief.   The appeal appears to have been filed in time for the Court to act on its in the next Term, with a decision before next summer if review is granted.

The appeal argued that the Fourth Circuit made “four grave errors on a matter of exceptional national importance.”  These were the claimed errors:

First, the Circuit Court disregarded repeated statements by the Supreme Court that authority to seize and detain anyone within the U.S. must be clearly authorized by Congress.  The Circuit Court found such authority in AUMF even though that law is silent on the issue of detention, the petition said.

Second, the Circuit Court ignored Congress’ intent — spelled out in the Patriot Act, also passed in the wake of the terrorist attacks — that domestic terrorism suspects not be held for long periods without charge.  The Circuit Court, the petition said, “crafted from whole cloth a novel domestic military detention scheme abounding in constitutional problems.”

Third, the Circuit Court contradicted the Supreme Court’s view that the power to detain under AUMF must follow principles of the law of war.  The Circuit Court, it said, “stretched the concept of ‘enemy combatant’ far beyond what this Court’s precedents and the Constitution allow.”

Fourth, the Circuit Court ignored the AUMF’s mandate that only “necessary and appropriate” military force be used. The Circuit Court upheld military detention of an individual who had already been held in maximum security custody with no early chance of release.

Discussing what the petition called the “damaging confusion” of the lower court decision, it commented: “The ruling articulates three different and novel definitions of ‘enemy combatant’ derived through varying statutory and constitutional theories.  The net result clouds rather than clarifies who (if anyone) within the United States may be subject to indefinite military detention by the execution.” 

 Moreover, the confusion is “compounded,” the petition said, because of the uncertain procedural framework the majority had said must now be followed in a renewal of Al-Marri’s District Court challenge to his detention.  “This opens a Pandora’s box of potential litigation, multiplying exponentially future uncertainty for the detainee and the government,” the petition declared.