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4th Cir.: No Detention Without Trial for Person Arrested Within U.S.

By TChris, Section Terror Detainees
Posted on Mon Jun 11, 2007 at 12:47:46 PM EST
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Even the conservative Fourth Circuit (or at least a divided panel on that conservative court) agrees that the Bush administration can't arrest someone who is in the United States, declare him an enemy combatant, and hold him indefinitely without trial.

The court said sanctioning the indefinite detention of civilians would have "disastrous consequences for the constitution — and the country."

The court's lengthy opinion (pdf) tells the story. TalkLeft background on the detention of Ali Saleh Kahlah al-Marri is collected here.

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    4th Cir.: No Detention Without Trial for Person Arrested Within U.S. | 16 comments (16 topical)

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    this is a big win (none / 0) (#1)
    by scribe on Mon Jun 11, 2007 at 01:08:53 PM EST
    and worth reading in detail.  They pretty much gut The Unit's claims for power.

    Whether it will stand up once it gets to the S.Ct. - another matter.

    Victory for AQ is more like it (none / 0) (#3)
    by Fritz on Mon Jun 11, 2007 at 02:02:41 PM EST
    Al-Marri premises his habeas claim on the Fifth Amendment's
    guarantee that no person living in this country can be deprived of liberty without due process of law. He maintains that even if he has committed the acts the Government alleges, he is not a
    combatant but a civilian protected by our Constitution, and thus is not subject to military detention. Al-Marri acknowledges that the Government can deport him or charge him with a crime, and if he is convicted in a civilian court, imprison him.

    This comes right out of AQ's handbook.  He did not enter legally.  He entered the country under false pretenses, that is illegal.  This will be reversed, AQ can not believe that they can avoid GITMO simply because they entered the US in a legitimate form of entry.  This is a pre-9/11 mentality.

    Parent

    your post is pre VE day. (none / 0) (#7)
    by Molly Bloom on Mon Jun 11, 2007 at 03:46:21 PM EST


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    the dissent ... (none / 0) (#2)
    by Sailor on Mon Jun 11, 2007 at 01:37:01 PM EST
    ... showing the typical brilliant legal mind of a bush appointee:
    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."
    WTF!?

    WTF is right! (none / 0) (#4)
    by Fritz on Mon Jun 11, 2007 at 02:46:03 PM EST
    What was this judge thinking?  This guy was sent by KSM to the United States to operate an AQ cell to commit acts of terrorism, so I guess this ruling could have applied to Mohammed Atta too had he been captured before 9/11.

    [T]he President is authorized to use all necessary and
    appropriate force against those nations, organizations,
    or persons he determines planned, authorized, committed,
    or aided the terrorist attacks that occurred on September
    11, 2001, or harbored such organizations or persons, in
    order to prevent any future acts of international
    terrorism against the United States by such nations,
    organizations or persons.


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    really? (none / 0) (#5)
    by Sailor on Mon Jun 11, 2007 at 03:04:53 PM EST
    This guy was sent by KSM to the United States to operate an AQ cell to commit acts of terrorism
    How do you know?

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    Fritz Knows (none / 0) (#6)
    by squeaky on Mon Jun 11, 2007 at 03:07:47 PM EST
    Because all brown people are latent terrorists. They all want to kill white Americans like Fritz.

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    Squeaky plays the race card (none / 0) (#12)
    by jimakaPPJ on Tue Jun 12, 2007 at 08:58:29 AM EST
    That's a smear. You have no proof that Fritz believes such.

    Posted by Squeaky at September 19, 2005 11:19 PM

    Rove never needed proof for his smear machine, why should I.



    Parent
    Yes (none / 0) (#16)
    by squeaky on Tue Jun 12, 2007 at 09:43:33 PM EST
    You and Fritz are of like minds.

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    In the Majority Opinion (none / 0) (#13)
    by Fritz on Tue Jun 12, 2007 at 09:45:14 AM EST
    Don't you find it embarrassing that you simply read the biased headlines and didn't read the text of the decision?  This guy is an AQ operative, just like the 19 highjackers.  The dates indicate he was probably outed by KSM himself.  As Tenet said himself, torturing KSM probably did provide more actionable intelligence than all the intelligence apparatus in place.  

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    It's obvious you are anti American (none / 0) (#15)
    by Sailor on Tue Jun 12, 2007 at 11:42:23 AM EST
    This guy is an AQ operative, just like the 19 highjackers.
    See, real Americans believe in trials and don't believe in torture.

    from the opinion:

    The Government defends this detention, asserting that al-Marri associated with al Qaeda and "prepar[ed] for acts of international terrorism."
    [...]
    Even assuming the truth of the Government's allegations, the President
    lacks power to order the military to seize and indefinitely detain
    al-Marri.


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    Agree. (none / 0) (#8)
    by Gabriel Malor on Mon Jun 11, 2007 at 04:10:12 PM EST
    This is an important case for several reasons.

    Orin Kerr notes the narrow definition of "enemy combatant" used by the Fourth Circuit in this case, and claims that this is likely to be overturned by the Fourth Circuit en banc and by the Supreme Court.

    Marty Lederman focuses on the courts emphasis of the post-Hamdi state of military detentions (although some of his snark and the court's is unfounded since Al-Marri was detained before Hamdi was decided).

    I want to draw attention to another part of the decision: Section II, which deals with the MCA 2006 (begins on page 11 of the opinion).  It is an excellent all around treatment and explanation of the act and should be of great interest to any of the numerous commenters who have argued about it since November.

    The central holding here is that Al-Marri, as a legal permanent resident, has a constitutional right to habeas corpus that cannot be overriden by the MCA 2006 (which amended only statutory habeas) or the AUMF (which the court limits only to those associated with the military arms of enemy governments) or by inherent executive powers.

    Note, however, who this ruling does not apply to:
    (1) aliens held at Guantanamo Bay (who are not LPRs); and
    (2) citizens like Hamdi who were associated with the military arm of an enemy government.

    Both categories can still be held indefinitely (and group 1 can be subjected to military tribunals under the MCA 2006).

    My prediction for one area where this ruling will come under fire: when it defines "enemy combatant" under the AUMF to apply only to those associated with the military arm of an enemy government, it ignores entirely the Al Qaida organization.

    In Hamdi the Supreme Court ruled that a U.S. citizen could be detained indefinitely. The essential difference between this case and Hamdi is that Hamdi was allegedly working for the Taliban and Al-Marri was allegedly working for Al Qaeda.

    Addendum (none / 0) (#9)
    by Gabriel Malor on Mon Jun 11, 2007 at 04:33:36 PM EST
    Judge Motz's opinion is also open to criticism based on footnote 14, which takes Supreme Court silence on a specific issue to mean that he must likewise remain silent. This error is made more obvious by the subject matter of the issue.

    Judge Motz writes:

    The Supreme Court has yet to hold that there is a noninternational armed conflict between the United States and al Qaeda within the United States. Non-international conflicts "occur[] in the territory of one of the High Contracting Parties," Hamdan, 126 S. Ct. at 2795 (quoting Third Geneva Convention, 6 U.S.T. at 3318) (emphasis added) -- and Hamdan only found there to be a conflict between the United States and al Qaeda in Afghanistan. Of course, al-Marri is not a participant in any conflict involving the United States in Afghanistan.

    He seems to believe that conflict with Al Qaeda in the United States does not exist until the Supreme Court declares that it does and, notwithstanding the exhortations of Al Qaeda's leaders and the events of September 11th, that he is bound by the Supreme Court's silence on the issue.

    In fact, the opposite is true. Supreme Court silence on an issue means that the lower courts, like Judge Motz's make their own judgements on the issue free of binding precedent.

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    Except (none / 0) (#11)
    by Sailor on Mon Jun 11, 2007 at 05:16:25 PM EST
    Ruling in the Hamdi case, Justice Sandra Day O'Connor said the court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."


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    Footnote 14 (none / 0) (#14)
    by Gabriel Malor on Tue Jun 12, 2007 at 10:31:17 AM EST
    Footnote 14 (which I criticised upthread) has been bothering me some more. Quite simply, it isn't the place of the Supreme Court to be declaring wars (or "non-international armed conflicts") at all. That is the place of Congress. Judge Motz substituted his own opinion and used silence by the Supreme Court to ignore Congressional actions, most specifically the AUMF 2002.

    This case will be reversed.

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    Predictions (none / 0) (#10)
    by Gabriel Malor on Mon Jun 11, 2007 at 04:57:30 PM EST
    One more thing before I get some real work done. Where does this go next?

    Well, if the Fourth Circuit takes it en banc, I expect that they will reverse, but that is based only on the conservative reputation of the circuit.

    If the Supreme Court takes it, I expect that we will see something similar to the Hamdi case in 2004. The Hamdi ruling establishes that the AUMF 2002 allows the indefinite detention of enemy combatants, even U.S. citizens, but they must be given limited due process because they possess Fifth Amendment rights. Here, Al-Marri (who as a resident alien has Fifth Amendment protections) was denied even limited due process.

    Expect Breyer, Kennedy, Roberts, and Alito to follow Hamdi and rule that the AUMF 2002 authorizes detention of resident alien enemy combatants.

    Thomas will continue to champion his view that the president's Article II powers authorize such detention even without the AUMF.

    Souter and Ginsburg will follow their concurring opinion in Hamdi which argued that process, even limited process, must be provided for citizens and LPRs.

    Scalia will continue to be the lone dissent from the Court's recent jurisprudence on questions of habeas corpus and argue that the president cannot hold citizens or LPRs unless the writ of habeas corpus is properly suspended.

    Judge Motz goes even further and claims that Al-Marri cannot be considered an enemy combatant under the AUMF 2002 because he wasn't "associated with the military arm of an enemy nation."

    Based on their concuring opinino in Hamdi, Ginsburg and Souter no doubt agree. But the rest of the court, excluding Scalia, will likely find the other way.

    Parent

    4th Cir.: No Detention Without Trial for Person Arrested Within U.S. | 16 comments (16 topical)

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