Fourth Circuit Decision in Al-Marri "Repudiates the Most Fundamental Element of Constitutional Liberty"
Last week, the U.S. Court of Appeals for the Fourth Circuit held en banc in al-Marri v. Pucciarelli that the President is authorized — by Congress’ grant of authorization to apply military force in Afghanistan — to indefinitely detain individuals as enemy combatants.
In short, the decision repudiates the most fundamental element of constitutional liberty, freedom from arbitrary detention, and places even U.S. citizens at risk of arbitrary and indefinite detention by an essentially unrestrained executive.
On the one hand, the case specifically concerned a citizen of Qatar in the U.S. on a student visa to complete graduate training in computer science at Bradley University in Peoria, IL, where he lived with his wife and five sons, and where he had obtained a Bachelor’s degree in the early 1990s. However, while approving an expansive construction of the Authorization of the Use of Military Force and executive power (part of which stretched even beyond the government’s arguments[1]), the judges acknowledged the irrelevance of the distinction between citizens and lawful residents.[2] Moreover, even the judge whose opinion effectively controlled the court recognized that an authority to detain based on the AUMF could justify detention of indefinite duration.[3]
Public reports about the case emphasized its seeming even-handedness, noting that while the court upheld so imperial a vision of executive power in the abstract, it saw fit to check the executive in this single instance and require further process for individuals deemed “enemy combatants.” But the court’s willingness to require a mere modicum of process should not comfort observers.
Central to the court’s analysis is its construction of the Authorization for Use of Military Force (AUMF), in which Congress authorized the President to invade Afghanistan one week after the 9-11 attacks. The AUMF purports “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.” It includes neither any express intention to abrogate the domestic criminal detention system, nor even a mere passing reference to it. In fact, the legislative history from the resolution’s passage indicates that Congress did consider fundamental revisions to the criminal justice system, only to affirmatively reject them.[4]
As Judge Diane Gribbon Motz correctly observed, “Quirin, Hamdi, and Padilla all emphasize that Milligan’s teaching — that our Constitution does not permit the Government to subject civilians within the United States to military jurisdiction — remains good law.”[5] “Even assuming the Constitution permitted Congress to grant the
President such an awesome and unprecedented power . . . . [t]he AUMF lacks the particularly clear statement from Congress that would, at a minimum, be necessary to authorize the indefinite military detention of civilians as enemy combatants.”[6]
While the Fourth Circuit adopted a draconian analysis of detention that allows the President nearly unfettered authority as a matter of policy, it also (due to the “swing” vote of Judge Traxler) rejected the classification of Mr. al-Marri as an “enemy combatant” without some further, though potentially perfunctory, process.
On the one hand, courts have upheld some previous cases of domestic detention, such as Hamdi and Padilla. However, those instances have previously occurred only within the narrow bounds of persons whom — at least at one point — were “armed and present in a combat zone” with forces hostile to the United States.
In sharp contrast, “unlike Hamdi and Padilla, 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.”[7] Al-Marri was initially arrested, charged and prosecuted by civilian authorities for credit card fraud. Noting that he had been denied even minimally sufficient process in his designation as an enemy combatant, the majority also recognized that, at the time he was transferred to a military prison, Mr. al-Marri had already been in civilian detention for well over a year and had already faced prosecution once.[8]
Moreover, even to the extent the decision appears to vindicate Due Process, it does so only marginally. Ultimately, while “[t]he majority of [the judges] agree that a person of al-Marri’s status is entitled to more due process than that which he received . . . there is no concrete guidance as to what further process is due.”[9]
According to Michael Ratner of the Center for Constitutional Rights, "The court in the narrow decision has put its imprimatur on the most dangerous departure from fundamental rights: the administration's treatment of what should be serious crimes as acts of war and its departure from fundamental protections of our constitution. . . .” The al-Marri decision may represent a narrow victory for detainee rights in requiring minimal process, but it is a travesty with respect to executive power, constitutional rights, or the rights of any individuals in the United States — including citizens — placed at potential risk of political or other retribution by the overbroad prevention detention scheme it could be read to support.
[1] See al-Marri v. Pucciarelli, No. 06-7427, slip op. at 49-50 (Motz, J., concurring in the judgment) (U.S. July 15, 2008).
[2] See id. at 98 (Traxler, J. concurring in the judgment) (“the rights al-Marri asserts are those available under our Constitution to anyone within our borders, including, obviously, American citizens. . . . [P]rotections we declare to be unavailable under the Constitution to al-Marri might likewise be unavailable to American citizens. . . .”); id. at 104 (Gregory, J., concurring in the judgment) (“the Constitution will furnish an American citizen, detained under these circumstances, no more rights than those we provide al-Marri.”).
[3] See id. at 62 (Traxler, J.).
[4] See id. at 40-41 (Motz, J.).
[5] Id. at 26 (Motz, J.).
[6] Id. at 39 (Motz, J.) (emphasis in original).
[7] Id. at 28 (Motz, J.).
[8] See id. at 9 (Motz, J.).
[9] Id. at 104 (Gregory, J.).
Written By:Lawrence E. Rafferty On July 22, 2008 4:34 PM Written By:Sasha Khrebtukova On August 7, 2008 11:10 AM
I agree that while the Fourth Circuit's demands for stricter due process standards for those accused of being enemy combatants are laudable, the court's acceptance of the administration's arguments for expanding the legal category of 'enemy combatant' beyond that approved by the Supreme Court in Hamdi--that is, to include persons who are not charged with having taken up arms against the United States--is dangerous for the basic principles of liberty upon which this country was founded. Further, far from exculpating the court's reasoning as Judge Traxler maintains, Ex parte Quirin only serves to highlight these dangers. For although the German soldiers in that case where in fact detained as enemy combatants without having been charged with having taken up arms against the United States or having been caught on the battlefield, no one at the time had questioned or attempted to argue against the fact that the soldiers were indeed members of the German army--in a time of 'name, rank, and number,' the military arm of the United States government was simply not faced with many of the issues which have so complicated the legal terrain in 'the war against terrorism.'
Today, unlike at the time that Quirin was decided, the country faces unconventional enemy forces, whose members often seek to remain anonymous, and this in turn aggravates the potential for error in depriving individuals of the right to liberty or fair trial. Note, for example, the cases of Padilla and Hamdi themselves. Both men were detained by the United States military on grounds of having been enemy combatants. As explained, e.g., by the plurality in Hamdi, what being an 'enemy combatant' means under the law of war is that the individual concerned is a member of military forces with which the detaining state is at war, such that, if released, the detainee would have a duty to again take up arms against the detaining state, until such time as peace between the two powers has been negotiated. It is only because of this fact that detention of such persons is proper under the law of war for the duration of hostilities. And yet, despite the government's impassioned arguments that both Padilla and Hamdi were enemy combatants in this sense--that is, that their release would immediately result in their 'return to the battlefield' and that this in fact justified their incommunicado detention over the course of numerous years--both men were nevertheless ultimately released from military detention, without any explanation about why it had suddenly become the case that they no longer warranted enemy combatant status in a conflict which is, by all accounts, far from over.
What's striking about this course of events is that the military detention of both Padilla and Hamdi was terminated as it became clear that the Supreme Court was going to require more due process--that is, more justification--from the government with respect to the proof behind the actual necessity of the detention: Hamdi was released to Saudi Arabia after the SCOTUS plurality in Hamdi remanded the case to give him more due process; and Padilla was released into the ordinary U.S. criminal system before his case could be heard by the post-Hamdi Supreme Court, prompting an angry opinion from the Fourth Circuit, which essentially accused the government of having tricked and abused the judicial system. The question then becomes: if these men were in fact enemy combatants deserving of military detention for having been so dangerous to the continued existence of the state to have necessitated that they be detained incommunicado for the duration of hostilities, why would the military rather change its mind with regard to that determination than prove that it had been warranted? This question becomes particularly salient in the case of al-Marri himself, who was taken out of the ordinary criminal system and placed under military detention only a day before the court was to rule on his motion for dismissal on grounds that the only evidence against him had been obtained through torture. (See Judge Motz's opinion, part I).
The point is that, in this unconventional conflict, where enemy fighters don't give name, rank, and number upon capture, and where there is doubt and room for error about who is fighting on which side, it places too grave and unjustifiable a risk upon the right to liberty to expand the military's right to detain incommunicado, without charge or trial, beyond that already granted by the Court in Hamdi, where the plurality took such pains throughout the opinion to lay terrific emphasis on the fact that Hamdi had been caught bearing arms against our State on the battlefield.
I would also like to point out the logical inconsistency in labeling terrorists as enemy combatants. As already mentioned, enemy combatant status allows for the detention of individuals throughout the duration of hostilities. What this means in a conventional war between States is that captured members of enemy forces are detained until a peace treaty has been negotiated between the warring powers. They are detained because it is understood that, if released, they will fight against the detaining State once more, for they are soldiers. They are militarily detained rather than thrown in prison because they are soldiers, not criminals. Because they are soldiers and not criminals, when peace has been negotiated between the warring powers, they will be released. Clearly, this does not cover the situation of terrorists.
Terrorism is not the same as owing allegiance to and fighting for an enemy State; terrorism is a crime. The United States will not sign a peace treaty with terrorists, it will not release those terrorists that it has captured. Hence their detention is truly indefinite. As explained by the plurality in Hamdi, the law of war does not authorize indefinite detention--it authorizes detention for the duration of hostilities, and then it mandates release. What the U.S. military is arguing is that the alleged terrorists that it has captured are both enemy combatants (i.e., soldiers who may be detained by the military without trial for the duration of hostilities) and terrorists (i.e., criminals who stand accused of murder and damage to civilian property). But it doesn’t work both ways: either the United States dignifies al Qaeda with the status of an enemy State with whom a peace treaty is possible, and these individuals with the status of its soldiers, who may then be detained and not tried (for they are then accused of no crime, but are recognized as having the duty to fight against us); or the United States must truly treat these people as terrorists (i.e., criminals), in which case they are not being held until such time as their release may be negotiated, but belong rather in within the criminal legal system, on their way to either prison or liberty, in accordance with the principles of adequate due process. (And, incidentally, I am not convinced by the argument that terrorists cannot be tried within the criminal system due to security, state secret, or unduly burdensome evidentiary worries--there are many processes available within the system, such as in camera proceedings and the relaxed evidentiary standards proposed by the Hamdi plurality under certain circumstances, that can serve to ameliorate these concerns).
Finally, as a legal matter, I would also like to echo Judge Motz in pointing out that it is at least interesting and enlightening to note that, while all of the judges who voted against expanding the legal category of 'enemy combatant' to cover al-Marri's case could agree to a single concise opinion, every single judge who voted for just expansion presented a separate opinion. In the words of Judge Motz: "Finding scant legal support for their positions, our hardworking dissenting colleagues resort to inventing new definitions of enemy combatant. Not only have none of their differing definitions been adopted by Congress or advocated by the Government, these definitions are contrary to law-of-war principles long followed by the Supreme Court. The absence of authority supporting any of these divergent positions unsurprisingly results in our colleagues' inability to agree on the scope of the Executive's power to detain or the correct process for reviewing such detentions." Indeed, if the authority to detain al-Marri as an enemy combatant is so clear, why the need for five divergent opinions?
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well done treatise. I agree that this is a huge dent in our constitutional freedoms. I would hope that you and your fellow plaintiffs and amicus briefers will be appealing this to the Supreme Court. We cannot let this president or any president the ability to jail,without recourse, anyone within their reach.