« The Classy Counterculture | Main | Your Tax Dollars At Work »

June 11, 2007

Comments

NY Times version here. Nobody seemed interested when I posted the decision a few hours ago.

CharleyCarp on the LOLIS standard is also good, by the way.

"For my part, I think that we should limit the category 'enemy combatant' to cases of actual, not metaphorical, war."

Wait, you're saying that every kid who puffs on a joint isn't an enemy combatant in the war on drugs?

This is wartime, damnit! And it always will be, so long as we're in wars on concepts.

It's a fine decision, but excellent reading and logic as it is, I'm less confident of the SCOTUS of Alito, Roberts, Thomas and Scalia, and Justice "Convince Me" Kennedy.

I'm highly pleased to see Milligan so strongly upheld, though.

FWIW, I think Kennedy will vote with Stevens et al. on this one -- the bankruptcy of our present scheme has become too well known, and the Patriot-Act argument (irony!) is rather persuasive. I don't think Kennedy wants to be the fifth vote in favor of ratifying the evisceration of the rule of law.

N.b. however that an actual ex-law clerk for Kennedy thinks otherwise, at least on a first skim; see the Volokh link above.

How many tank divisions does the Fourth Circuit Court of Appeals have? Because I'm starting to think it's going to require extraordinary means to pry Cheney's grasp off of the Unitary Executive theory.

How many tank divisions does the Fourth Circuit Court of Appeals have? Because I'm starting to think it's going to require extraordinary means to pry Cheney's grasp off of the Unitary Executive theory.

Nah. Look at the Hamdi case. We were told he was THE WORST OF THE WORST, a danger to all Americans ... and then we released him & made him promise not to sue us.

Or Padilla, who suddenly was suitable for the civilian courts just as soon as the Supreme Court was going to get to address the merits.

Massi will be the same way. As I think Scott Horton said recently, people who really believe in their legal theories don't fight tooth & nail to keep their merits from being reviewed by the courts.

It certainly seems like the correct decision.

But this part concerns me:

Second: in the section dealing with the question whether the AUMF justifies detaining al-Marri, the Court argues that the term 'enemy combatant' is well-defined in international law when the combat in question is an 'international conflict'; that it refers to someone who has taken up arms against us on behalf of a foreign country in a combat zone; that the AUMF does authorize the government to detain 'enemy combatants' so construed; but that al-Marri does not satisfy this definition of 'enemy combatant':


"Al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world."

Are they excluding any non-nation state actor from the protection of "enemy combatant?" No one from Al Qaeda is one, whether on US soil or elsewhere?

"Are they excluding any non-nation state actor from the protection of 'enemy combatant?' No one from Al Qaeda is one, whether on US soil or elsewhere?"

I may be being dumb, but doesn't the listing of these categories that Al-Marri doesn't fall into indicate that if he did fall into those categories, the decision might go the other way? Which would thus mean the answer to your query is "no"?

After the first two mentions of the Taliban, all the other categories can encompass members of al Qaeda, which would again indicate an answer of "no," wouldn't it? Or am I missing something obvious?

the two judges -- motz and gregory -- are clinton appointees. I suspect this was a case of the "lucky panel draw." my guess is that it gets reversed en banc. the 4th circuit is, after all, terrible

publius: actually, I looked it up, and while Gregory was initially recess-appointed by Clinton, Bush gave him his permanent appointment.

(Yes, I'm a pedant; what can I say?)

jrudkis: I think that one of the Supreme Court cases -- Hamdan? held that the fight against al Qaeda was not an international conflict ("international", here, meaning: between nations, not: occurring in several countries; thus, the war in Iraq is international, despite having taken place in Iraq alone, but the fight against AQ is not, AQ not being a nation.) And this decision doesn't take a position on whether or not this conflict is "international", but notes that in non-international conflicts, there is no such category as "enemy combatant" in international law.

"Bush gave him his permanent appointment."

Which also, of course, means that the Republican Congress gave him thumbs up by confirming him.

But, you know -- we all know -- traitors are everywhere.

don't get me wrong - it's still a good day (and a very good post). but i still would put gregory into the clinton camp. gregory was picked by clinton (presumably for certain ideological/political reasons). bush did give him the perm appointment but it was sort of a brief olive branch (there were a few others on hold) following bush v. gore as i recall.

it's a unique example to be sure, but i'll still call him a clinton judge.

Are they excluding any non-nation state actor from the protection of "enemy combatant?"

"Protection"???

Oops, spelled "Marri" as "Massi" above.

Btw, looked on the CNN "Law" page (not even the front page), and nothing about this decision. However, it seems that Paris Hilton will not appeal her detention.

Maybe I am missing something, but doesn't that reopen the issue of whether Al Qaeda gets Geneva Convention protections at all?

Balkin also makes a very interesting point here, regarding the transfer to military custody that's at issue:

[...] Let's assume for the sake of argument that the majority in today's opinion was wrong on its main point -- i.e., let's assume arguendo that al-Marri is, like Hamdi, within the class of persons for whom Congress has authorized military detention.

Even so, his military detention here would be of very dubious legality.

Why is that?

Because he was already immobilized. al-Marri had been arrested on criminal charges in February 2002. He was held in custody by the U.S. for 16 full months before the President ordered him transferred to military detention in June 2003. And that transfer occurred, not coincidently, as soon as the trial court set a hearing on a motion al-Marri had made to suppress some evidence in his trial.

Thus, the predicate for any authorization to militarily detain al-Marri simply was not present -- he was already incapacitated and could no longer serve the enemy.

So why was he transferred? As the court suggests in note 16, he was transferred in order to subject him to coercive, possibly abusive, interrogation. For the first sixteen months of al-Marri's military confinement, the Government did not permit him any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.

And if that -- abusive interrogation -- was the reason for the military detention, then Congress did not authorize it, even if al-Marri could have been militarily detained for incapacitation purposes in the first instance.

And explains further.

Gary: linked to that in an update, but on reflection it's good to have Marty Lederman's point here in comments too.

jrudkis: I don't think it does call Geneva protections into question. Common article 3, as I understand it, is supposed to be for everyone.

(Suddenly, I realize that I only remembered its being Common Article 3, not -- say -- Common Article 14, or Preferred Article 17 1/2. Uh oh ...)

Sigh of relief!

I have to say, I wish Lederman weren't calling torture "abusive interrogation." It makes it sound like an NYPD Blue episode.

"Extreme sensory deprivation" as alleged by Marri is torture.

Judge Roger Gregory:

Jet, August 6, 2001

Ever since he was nominated for the Court of Appeals of the Fourth Circuit, Richmond, VA, lawyer Roger Gregory has been the country's most publicized jurist.

President Clinton failed to persuade senators to confirm him to a seat on the Fourth Circuit bench, a circuit whose population is 22 percent Black, higher than any other federal jurisdiction in the country. So while the Senate was not

in session, the President gave Gregory a recess appointment.

After months of lobbying, the temporary judge finally won Senate approval with a whopping 93-1 vote.

The only lawmaker to vote against him was Sen. Trent Lott, a Mississippi Republican. His aides said that he always voted against recess appointees.

What surprised observers, however, was the cost of putting a Black judge on the Fourth Circuit bench for the first time. It took two Presidents, three senators, his former law partner, former Virginia Governor L. Douglas Wilder, and several political deals to negotiate the historic appointment.

Bill Clinton's presser on the recess appointment.

Republican Senate Policy Committee on Bush's nomination of Judge Gregory:

President George W. Bush today nominated 11 outstanding Americans to the U.S. Courts of Appeals. In making his selections, the President focused on character, integrity, fairness, experience, and intellect -- and on the time-honored American principle that judges should interpret the law and not legislate from the bench. Each nominee has demonstrated outstanding legal abilities, the highest ethical standards, and a proven record of service to diverse communities.

[...]

The President promised to bring a new spirit of cooperation to the Nation's Capital, and that promise was emphatically re-affirmed today. Of today's nominees, five are sitting federal judges - and two of them were appointed to their current positions by President Clinton. President Bush has renominated Judge Roger Gregory to the United States Court of Appeals for the Fourth Circuit. Judge Gregory was put on the court by President Clinton with a recess appointment. This may be the first time in the history of the country that a president of one party has renominated a circuit judge who originally was nominated by a president of the other party.

Included is a brief bio (couple of sentences) of the judge along with the other 10 nominees made that day.

Among the ten included in that display of bipartisanship were Edith Brown Clement, John G. Roberts, Miguel A. Estrada, Priscilla Owen, Michael W. McConnell (say, how'd that work out?), among others. It was a memorable set of nominees; one can look back and consider what one might regard as the golden oldie classics of Bush conservativism. Gregory made a nice sweetener.

CharleyCarp on the LOLIS standard is also good, by the way.

He also mentions in a comment on an unrelated post that “This is a very big deal” and he’ll try to write on it tonight.


Orin Kerr thinks it will be reversed:

My prediction: I tend to doubt this decision will stand. My very tentative guess is that either the en banc Fourth Circuit or the Supreme Court will reverse, holding that the AUMF is broad enough to authorize an Al-Qaeda suspect like Al-Marri and therefore the detention is authorized by statute.

Interesting comment thread over there as well.

"Orin Kerr thinks it will be reversed"

Yes, so Anderson noted above; he also argued otherwise in the Kerr thread.

I won't make any predictions, having expressed my worry; if Kennedy doesn't meander to his dark side, and the decision is affirmed, I'll be immensely glad and relieved, but I won't count on it in advance.

The only lawmaker to vote against him was Sen. Trent Lott, a Mississippi Republican. His aides said that he always voted against recess appointees.

Hmmmm, have any of the Bush recess appointments come up to a vote?

Are they excluding any non-nation state actor from the protection of "enemy combatant?" No one from Al Qaeda is one, whether on US soil or elsewhere?

No. The opinion is limited to the following -- citizens and resident aliens in the U.S. Those people cannot be diverted into military courts for criminal activity in the U.S.

You could set up a special terrorist's court in the US, so long as it comported with basic constitutional due process requirements. But why bother?

The current Bush system is a dead ringer for lettres de cachet -- arrest and detention without trial based solely on the word of the executive.

What you are saying is that a mere accusation by Bush is justification for indefinite arrest and detention without trial. The "enemy combatant" rhetoric is just a fig leaf for that reality.

It is a repellant concept, and screaming that someone is a terrorist is not grounds for legitimizing lawlessness.

dmbeaster: "What you are saying is that a mere accusation by Bush is justification for indefinite arrest and detention without trial."

I totally missed jrudkis saying anything of the kind.

I did see jrudkis say "It certainly seems like the correct decision."

"It is a repellant concept, and screaming that someone is a terrorist is not grounds for legitimizing lawlessness."

Who in this thread has either been screaming, or saying that because someone is a terrorist is grounds for legitimizing lawlessness? Have I been missing comments?

The only lawmaker to vote against him was Sen. Trent Lott, a Mississippi Republican. His aides said that he always voted against recess appointees.

"I told you so!" chortles Lott.

"The Government offers nothing to indicate that Congress embarked on this strange course ..." Elsewhere, the Court seems to take an even dimmer view of the government's reasoning: "In view of the holdings in Hamdi and Padilla, we find it remarkable that the Government contends that they “compel the conclusion” that the President may detain al-Marri as an enemy combatant"; "The Government can so contend only by both ignoring the undisputed and relying on the inapposite"; etc.

For the non-lawyers out there, if any of the above quotes appeared in a order ruling against me, and I'd cry, for weeks and weeks. "Are you frackin' serious" is one translation. Another is "get that weak s*** out of my courtroom" followed by the Dikembe Mutombo finger-wave.

Just reading it, I'm forced to make the "just saw something ugly, like a car wreck" face.

looks to me like one more example of this administration's fundamental lack of seriousness about its alleged raison d'etre, the war on terror.

Actually, I think this more than demonstrates just how compromised the Justice Department is. They have no competence left, only Christianist ideologues from 4th tier schools who clearly have no idea what the hell they are doing. Not only has the compromise of the DoJ been directed toward bogus voter fraud issues, which are being tossed out of court, this politicization of the DoJ has left it incompetent to even proceed in a technically correct manner. They just don't know what they're doing and are simply relying on "national security" and unitary executive power as arguments.

Anyway, the scariest thing I read about the Al-Marri decision comes via Kevin Drum : a quote from the dissenting judge in the case:

...A dissenting judge in today's decision, Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, wrote that President Bush "had the authority to detain al-Marri as an enemy combatant or belligerent" because "he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States."

Is he indeed? And how does Judge Hudson know this? AFAIK, no case either against him, or in his defense, has ever been presented in a court of law (or anywhere else, apparently): does the good Judge know something we don't? (or this info classified, as well??)

Scary, because while might expect this sort of absolutist nonsense from some blogger, or an opinion columnist looking to whip up ooga-booga-scary-terrorist panic among the public, one would have hoped that a Federal Judge would be just a little more, well, judicious in making blanket statements like this (still less inserting them into a legal opinion).

Gary:

No one is saying it here, and the "you" is the wrong pronoun in my post.

Jay C:

Is he indeed? And how does Judge Hudson know this?

In the opinion, he indicates that he got from the "unrebutted" declaration of someone named Jeffrey N. Rapp, Director, Joint Intelligence Task Force for Combatting Terrorism. Rapp is summarizing the alleged "evidence" -- but he himself is not a witness. He apparently provides declarations in many of these cases.

From an amicus brief filed in the case Page 4, footnote 3 (pdf):

Rapp provides no basis for this claim, except that al-Marri’s computer
“contained a list of numerous favorite internet websites relating to computer
hacking” and files containing credit card numbers that did not belong to him. (JA 63-64) In his book Never Again, former Attorney General John Ashcroft explained that the Government’s claim was actually just “speculation” arising from its
discovery that al-Marri’s computer

had computer software programs frequently used by hackers in their efforts to gather illegally personal information from unsuspecting victims’ computers. This raised speculation among some officials that perhaps al-Marri planned to hack his way into the U.S. banking system to wipe out balances and otherwise wreak havoc with banking records and damage the U.S. economy.

Is he indeed? And how does Judge Hudson know this? AFAIK, no case either against him, or in his defense, has ever been presented in a court of law (or anywhere else, apparently): does the good Judge know something we don't? (or this info classified, as well??)

Scary, because while might expect this sort of absolutist nonsense from some blogger, or an opinion columnist looking to whip up ooga-booga-scary-terrorist panic among the public, one would have hoped that a Federal Judge would be just a little more, well, judicious in making blanket statements like this (still less inserting them into a legal opinion).

Actually, Japanese Americans find this scarily familiar. And they know damn well that federal judges can be injudicious in these sort of things, particularly when administrations wave military necessity around...

In Iran, people can be jailed indefinitely and "harshly interrogated" because the Iranian government suspects they are members of organizations seeking to overthrow the Iranian government. No evidence needed.

It'll be interesting to see whether the Supremes (or the 4th Circuit en banc) hold that the Iranian system of "justice" meets US Constitutional muster. Meanwhile, I take pride that there is still some decency in the US Justice system.

Re: the Geneva Conventions issue, what is supposed to happen is that anyone captured on a battlefield is treated as a POW until a tribunal has determined that for whatever reason he is not entitled to that treatment, then we go to article 3. The way I read that quote from the decision, there is no need for the tribunal. Essentially it has a starting point where someone in Al Qaeda has to be shown to get POW status, instead of the reverse, where the government has to show why he does not deserve it.

POW status is generally a good deal (not in this case where it occurred in the US and should be dealt with through the civilian process). It just seems odd to me that the decision seems to strip the protection without the finding.

jrudkis: They're pretty careful, in the actual decision, to say distinguish the case they are actually talking about from actual battlefield cases. That's sort of their point: that enemy combatant status makes sense and is fine when you're actually talking about people picked up on a battlefield, and off the battlefield when you're talking about someone who is affiliated with a hostile state's military (e.g., spies, saboteurs); but that it's not fine as applied to people who are just acting on behalf of some hostile organization and who are not on a battlefield.

I would think that, as far as AQ members on a battlefield, one would still have to ask whether they are or are not members of some hostile military (e.g., the Taliban) (pretending for the moment that Bush hadn't ruled, inexplicably to me, that people fighting for the Taliban couldn't have POW status.) But if it's entirely a battle between AQ and our military, I'm not sure I see why AQ members should have the protection of the full Geneva Conventions, as opposed to CA 3.

If, in 2009, President Clinton declares Bush and Cheney to be "enemy combatants" and orders them to be detained in military custody indefinitely, will Judge Hudson and his ilk still think such decisions are unreviewable?

"...files containing credit card numbers that did not belong to him.... computer software programs frequently used by hackers.... This raised speculation among some officials that perhaps al-Marri planned to hack his way into the U.S. banking system to wipe out balances and otherwise wreak havoc with banking records and damage the U.S. economy."

It takes a special kind of mind to look at a computer full of stolen credit card numbers and assume that the perpetrator is not trying to steal money for personal gain, or even trying to steal money to buy weapons for terrorists, but is in fact planning to single-handedly cut down the Brooklyn bridge damage the U.S. economy...

Hilzoy,
I recall a lot of argument (not here) regarding POW status for AQ that were captured in Afghanistan. Article 4 has plenty of authorization for irregular fighters getting POW status subject to certain limitations such as wearing a mark/uniform, complying with the GC, etc. In some ways, it would have made detention a lot less problematic: keep them until hostilities end, just in much better conditions.

But the Taliban is a good example too, where it was not a recognized government by all but two countries, and was not complying with any of the requirements of the law of war. I think there is a fair academic argument to be made that they did not meet the requirements. It would still be better to have kept them as POW's rather than have to go through a legal system.

I think the reason why they did not do that is because the standard of treatment for POWs is essentially the same as how we treat our own soldiers when it comes to accomdations, and there is significant freedom within the POW camps (if it was run by the rules in the GC) that they thought was inappropriate for these prisoners. So we got Guantanamo.


For some reason OW is not blocked by the army system (most blogs are on work computers, not as censorship but because they want us to work and not tie up the limited bandwidth). But the typepad key is blocked, so about half the time I can't post here because the typing test pops up (which is why it sometimes takes a long time to reply).

Thanks for the information on what the actual opinion said. Now that I am off my work computer, I can actually get some time to read it.

Article 4 has plenty of authorization for irregular fighters getting POW status subject to certain limitations such as wearing a mark/uniform, complying with the GC, etc.

FWIW, these Article 4 requirements are for a military that is *not* the "official" military of the High Contracting Party in question; in the case of Afghanistan, that was de facto the Taliban.

You can't hinge the issue on international recognition of the government; what if Saddam, before invading Kuwait, had announced that he didn't recognize its government?

I just tried accessing this yesterday at a public machine at a hotel, and got blocked because this site used a forbidden word- "fisting".

Strange. So had to wait until after I flew home to catch up on my news.

The comments to this entry are closed.

Blog powered by Typepad