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Analysis: The puzzle of domestic detention


In nearly twelve years of the “war on terror,” Congress has seldom been willing to let the other branches of the government decide on their own what U.S. policy would be on detention of individuals suspected of terrorism.  But it has said it is entirely willing to let the Supreme Court decide one still-open policy question: can the military capture a civilian inside the U.S., and detain that person for years without a trial?

Once before, in 2008, the Supreme Court took on that issue, but then did not rule.  Now, the same individual who was involved in that case — Ali Saleh Kahlah al-Marri, a Qatari national — has returned to the Court, seeking the answer he did not get the last time.  But it is not clear the Justices will grant review again, in the case of al-Marri v. Berkebile (docket 13-105).  The Obama administration has opted not even to answer the renewed claim.  Unless the Court seeks the government’s views, al-Marri may not get an answer.

al-Marri’s case is a complex one, but his lawyers are attempting to make it very simple for the Court: they suggest that the Court put to one side the details of how he had fared in lower courts since 2008, and confront again the ultimate question: whether it is unconstitutional for the government to seize an individual on American soil, and put him in a military jail indefinitely, without ever charging him with a crime.

That this is an issue for the Court, and not for Congress, is an idea that gained the firm endorsement two years ago of a prominent member of the Senate who has generally not been sympathetic to detainees’ legal claims.  Domestic detention, South Carolina Republican Lindsey Graham told his colleagues, is an ultimate question of law, for the Court to decide.  “That is the way it should be,” he said then.

Indeed, Graham helped persuade Congress as a whole to accept that view..  When it passed a new law in 2011 to reaffirm the President’s power to have the military detain individuals linked to terrorist groups, it included a provision which said that nothing in it would change “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”  But it made no attempt to clarify what “existing law” is on that point, leaving that to the courts and, thus, ultimately to the Supreme Court.

That law was an attempt to clarify the post-9/11 law that President George W. Bush and now President Obama have claimed as the basic grant of power to detain terrorism suspects — the Authorization for the Use of Military Force.  The 2011 law was Congress’s only attempt so far to further spell out the scope of detention authority under the AUMF.

But, as the Second Circuit Court commented last month in one of the first cases to arise under the 2011 version, the law “says nothing at all about the President’s authority to detain American citizens.”  And neither, it could have added, does it say anything about the authority to detain non-citizens living lawfully in the U.S. — a category that would include al-Marri.   And that, of course, is why his lawyers believe he should be allowed to challenge the measure’s constitutionality in the only place where that can be determined, the Supreme Court.

A group of U.S. citizens also has attempted — so far, unsuccessfully — to challenge the 2011 law, but the Second Circuit turned them away in its ruling last month in the case of Hedges v. Obama (Circuit docket 12-3167).  The challengers argued that they had a legitimate fear that they might someday be detained under presidential authority.  The challengers, the Second Circuit said, had no legal right to be in court (that is, no “standing”) because they had not offered proof that they would be targeted by the law.

Now, al-Marri is taking a new turn at challenging domestic detention authority and he, of course, was detained under that authority.

He was a college graduate student, and a legal resident in the U.S., when he was taken from his home in Peoria, Illinois, three months after the terrorist attacks on September 11, 2001.  He apparently was rounded up as part of a sweeping federal investigation of the 9/11 attacks, and was held for a trial as a “material witness” in that investigation.  However, President Bush, relying upon the Authorization for the Use of Military Force, decided to designate him as an “enemy combatant” and handed him over to the military.  He wound up staying more than five years in a military jail in South Carolina.  He was there in 2008, when his lawyers persuaded the Supreme Court to hear his claim that his detention was unconstitutional.

The Fourth Circuit Court had upheld his detention in a splintered decision in July 2008, and the Supreme Court agreed in December of that year to review the Circuit Court’s decision.  The sole issue his lawyers raised was whether the AUMF and the Constitution permitted “the seizure and indefinite military detention” of a lawful resident alien “without criminal charge or trial, based on government assertions that the detainee conspired with al-Qaeda to engage in terrorist activities.”

When the new Obama administration took office in January 2009, it reviewed al-Marri’s situation, and decided to pursue criminal charges against him, in civilian federal court in Illinois.  Based on some of the same information that led to his detention, he was accused of conspiring with the al-Qaeda terrorist network.  The government’s evidence said he was tied directly to Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 terrorist attacks.  (Mohammed is now facing war crimes charges before a military commission at Guantanamo Bay.)

Because al-Marri was no longer in military custody, the Supreme Court in March 2009 agreed to a government request to let civilian authorities go forward with the conspiracy prosecution.  al-Marri and his lawyers then reached a plea deal with the government, a part of which allowed al-Marri to attempt to persuade the federal judge who would sentence him to make an allowance for his time in the military jail.

Under federal sentencing guidelines, al-Marri faced a potential prison term totaling 180 months — that is, fifteen years.   In October 2009, a federal judge in Illinois imposed a sentence of one hundred months.   The judge shaved off eighty months: seventy-one months for the time when he was not in civilian custody under the criminal charges against him, and nine months to offset “the very severe conditions” he experienced during his time in the military jail.

After the one-hundred-month sentence was imposed, al-Marri’s lawyers also sought some reduction of the time he would actually have to serve in prison.  That is a calculation that is made separately by the federal Bureau of Prisons.   Normally, an individual serving time in a federal facility, if he behaves, is given fifty-four days of credit each year (“good time” credit).   al-Marri’s lawyers asked the BOP to give him “good time” credit for the years he was in military detention.  That would reduce his actual time to be served by somewhere between 270 days and 306 days, depending on how the credit would be calculated.

The BOP refused, and both a federal district court and the Tenth Circuit Court declined to order the claimed credit.  Part of their rationale was that they had no authority to do so, and part was that, even if they had, they would not grant the request.

In taking his case on to the Supreme Court, al-Marri’s lawyers argued that the lower courts failed to rule on the illegality of his detention by the military, and thus failed to provide him with any remedy for that violation of the Constitution.   The sentence reduction by the district judge was not a substitute for a remedy for the constitutional violation, the petition argued.

But the petition also sought to steer the Court away from a focus on “the arcane question of whether good conduct time credits should have been awarded”under federal law under which the BOP sets actual prison time.  The focus, his lawyers argued, should instead be on finally settling “whether the Constitution and laws of the United States permit the Executive to remove an individual who had been lawfully residing in the United States from the civilian system of criminal justice and to place him in indefinite military detention, without charge or trial.”  His only remaining way to raise that fundamental question, his filing contended, is by seeking a declaration that there was no constitutional basis for his detention, and then, after so declaring, fashioning a remedy.

Even Congress, the petition said, is awaiting an answer.

Early this month, the U.S. Solicitor General notified the Court that the government was bypassing a chance to reply to al-Marri’s challenge.  The case has now been scheduled for the Court’s consideration at a private Conference on September 30, according to the Court’s electronic docket.  The Court is not likely to grant review unless there is a response; the Court has the option of asking for one when that opportunity has been waived.


Recommended Citation: Lyle Denniston, Analysis: The puzzle of domestic detention, SCOTUSblog (Aug. 20, 2013, 12:03 AM),