From the Washington Post:
"A federal appeals court today ruled that the U.S. government cannot indefinitely imprison a U.S. resident on suspicion alone, and ordered the military to either charge Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.
The opinion is a major blow to the Bush administration's assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States. The government is expected to appeal the 2-1 decision handed down by a three-judge panel of the conservative U.S. Court of Appeals for the Fourth Circuit, which is in Richmond, Va.
The decision is a victory for civil libertarians and Marri, a citizen of Qatar who was a legal resident of the United States and studying in Peoria, Ill., when he was arrested in December 2001 as a "material witness." He was detained initially in civil prisons, then transferred to a naval brig in Charleston, S.C. , where he has been confined for the past five years.
The government argued that Marri, who had met with al-Qaeda leader Osama bin Laden, was sent to the United States for a second wave of terrorist attacks.
The appeals panel said President Bush overstretched his authority by declaring Marri an "enemy combatant," because the Constitution protects both U.S. citizens and legal residents such as Marri from an unchecked military and from being detained without charges and a fair trial."
Marty Lederman has posted the decision here (pdf). It's quite interesting. It rejects a whole slew of the government's claims: that the Military Commissions Act strips al-Marri of habeas rights, that the Authorization for the Use of Military Force empowers the President to detain people in this country and designate them 'enemy combatants' at will, and that the President has the inherent power to do this under Article II. Excerpts and further discussion below the fold.
Excerpts from the beginning of the opinion:
"For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper. (...)
We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we 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.
This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely."
And from the end:
"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. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants.' (...)
Of course, this does not mean that the President lacks power to protect our national interests and defend our people, only that in doing so he must abide by the Constitution. We understand and do not in any way minimize the grave threat international terrorism poses to our country and our national security. But as Milligan teaches, “the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.” Milligan, 71 U.S. at 121. Those words resound as clearly in the twenty-first century as they did in the nineteenth. Thus, the President plainly has plenary authority to deploy our military against terrorist enemies overseas. See Curtiss Wright, 299 U.S. at 319-20; see also Eisentrager, 339 U.S. at 789.
Similarly, the Government remains free to defend our country against terrorist enemies within, using all the considerable powers “the well-stocked statutory arsenal” of domestic law affords. Hamdi, 542 U.S. at 547 (Souter, J., concurring in the judgment) (citing numerous federal statutes criminalizing terrorist acts). Civilian law enforcement officers may always use deadly force whenever reasonable. See Scott v. Harris, 127 S. Ct. 1769, 1776-78 (2007). Furthermore, in the wake of September 11th, Congress has specifically authorized the President to deploy the armed forces at home to protect the country in the event of actual “terrorist attack[s] or incident[s]” within the United States meeting certain conditions. See 10 U.S.C.A. § 333(a)(A) (2007) (amending the Insurrection Act to provide the President with this authority, notwithstanding the Posse Comitatus Act, 18 U.S.C. § 1385).
But in this nation, military control cannot subsume the constitutional rights of civilians. (...)
To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
For the foregoing reasons, we reverse the judgment of the district court dismissing al-Marri’s petition for a writ of habeas corpus. We remand the case to that court with instructions to issue a writ of habeas corpus directing the Secretary of Defense 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."
First, part of the Court's argument for the claim that the Military Commissions Act does not strip al-Marri of habeas rights is the following. The MCA says that "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." The Court reads the qualification 'who has been determined by the United States to have been properly detained as an enemy combatant' to mean that the MCA envisions a two-step process: first someone is detained as an enemy combatant, and then that person is determined to have been 'properly' so detained. In the case of Guantanamo detainees, this determination is made by Combatant Status Review Tribunals. But al-Marri, not being at Guantanamo, never got a CSRT. The government argued that the President's determination that al-Marri is an enemy combatant is adequate for these purposes; the Court says it is not.
(The government also argues, in one of those moves that would be amusing if nothing important were at stake, that it might give al-Marri a CSRT if the Court thinks this necessary, and that for that reason he should be considered to be 'awaiting' a determination. This is one of many moments that lead the Court to write one of those dry, sardonic passages that hide the thought "are you frackin' kidding me?" beneath a veneer of calm sobriety, and that are one of my favorite features of legal writing. In this case, after detailing some of the odder consequences of reading the MCA as the government suggests, the Court writes: "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.)
It's unclear whether al-Marri could have had a CSRT. But surely, if one were a government lawyer, one would spot this line of argument in advance and try to get someone to provide some CSRT-like procedure to determine whether al-Marri's detention as an enemy combatant was "proper". Once the MCA was passed, this is just an obvious thing to do. The fact that the government didn't bother to do it, like the fact that they didn't make sure that military commissions actually had jurisdiction over the detainees at Guantanamo, 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.
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."
What al-Marri is alleged to have done is to have been a member of al Qaeda plotting terrorist attacks. The Court rejects the idea that this makes him an enemy combatant, as opposed to a criminal:
"The core assumption underlying the Government’s position, notwithstanding Hamdi, Padilla, Quirin, Milligan, and Hamdan, seems to be that persons lawfully within this country, entitled to the protections of our Constitution, lose their civilian status and become “enemy combatants” if they have allegedly engaged in criminal conduct on behalf of an organization seeking to harm the United States. Of course, a person who commits a crime should be punished, but when a civilian protected by the Due Process Clause commits a crime he is subject to charge, trial, and punishment in a civilian court, not to seizure and confinement by military authorities.
We recognize the understandable instincts of those who wish to treat domestic terrorists as “combatants” in a “global war on terror.” Allegations of criminal activity in association with a terrorist organization, however, do not permit the Government to transform a civilian into an enemy combatant subject to indefinite military detention, any more than allegations of murder in association with others while in military service permit the Government to transform a civilian into a soldier subject to trial by court martial. See United States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955) (holding that ex-servicemen, “like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution”). (...)
Neither Quirin nor any other precedent even suggests, as the Government seems to believe, that individuals with constitutional rights, unaffiliated with the military arm of any enemy government, can be subjected to military jurisdiction and deprived of those rights solely on the basis of their conduct on behalf of an enemy organization. In fact, Milligan rejected the Government’s attempt to do just this. There, the Court acknowledged that Milligan’s conduct -- not “mere association” with, cf. post at n.3, but also “joining and aiding” a “secret political organization, armed to oppose the laws, and seek[ing] by stealthy means to introduce the enemies of the country into peaceful communities, there to . . . overthrow the power of the United States” -- made him and his coconspirators “dangerous enemies to their country.” 71 U.S. at 6, 130. But the Government did not allege that Milligan took orders from any enemy government or took up arms against this country on the battlefield. And so the Court prohibited the Government from subjecting Milligan to military jurisdiction for his “enormous crime.” Id.
Although Milligan was an “enem[y]” of the country and associated with an organization seeking to “overthrow the Government” of this country, he was still a civilian. Id. Milligan’s conduct mirrors the Government’s allegations against al-Marri. If the Government’s allegations are true, like Milligan, al-Marri is deplorable, criminal, and potentially dangerous, but like Milligan he is a civilian nonetheless."
The question who should count as an enemy combatant, besides someone who has actually joined the military of a hostile state and taken up arms against this country, is a critical one. It cannot enough to be a member of a loathsome organization devoted to criminal violence: if it were, we should count members of the mafia as enemy combatants, not criminals. It cannot be enough to be a member of a violent organization bent on overthrowing the government: if it were, then the government would have had the right not just to imprison and prosecute members of the Weather Underground or the Symbionese Liberation Army or the Montana Militia, but to detain them without charges.
For my part, I think that we should limit the category 'enemy combatant' to cases of actual, not metaphorical, war. There is a reason to adopt different judicial processes to deal with enemy soldiers. For one thing, enemy soldiers have a very different legal status than civilians -- they can do things civilians can't, like shoot at our soldiers legally; they cannot do things civilians can do, like disobey the lawful orders of a superior; and in all sorts of ways the rules are different. Moreover, when we are actually fighting a war, then there is a real reason to think: we cannot expect e.g. the normal rules governing evidence to apply to people captured on a battlefield. But none of these things are true in the case of people with whom we are not actually engaged in military hostilities.
In any case, though, the sooner we clarify this by adopting some law that clearly explains how one enters the supposed intermediate state between being a criminal and being a lawful enemy combatant, the better off we will all be.
(Question for you lawyers: if the argument about enemy combatants in this decision stands, will it provide any basis to challenge the detention of e.g. Guantanamo detainees who were not captured on a battlefield, and have not taken up arms against the US? I know it won't do so directly, but will it be useful at all?)
UPDATE: Marty Lederman has a new, and very interesting, post up here.