06 March 2009

Al-Marri Enemy Combatant Case Ends

The Al-Marri enemy combatant case is over, but the harm this case and the Jose Padilla case together did to the U.S. Constitution remains in U.S. law, probably indelibly for the foreseeable future. Together, these two cases, more than any others in the history of American jurisprudence, have impaired the right of average Americans to be free from incarceration without due process of law.

The judicial branch failed us when it had a chance to stop the gross abuse of Presidential power contrary to the U.S. Supreme Court's prior precedents that these cases represent. This was not for want of trying by some good judges. Padilla won his case before a federal court appellate panel in New York which was later ruled to lack jurisdiction by the U.S. Supreme Court (hence, vacating the ruling). Al-Marri won his case before a trial judge in a ruling on a motion, and then won by a 2-1 margin before federal appellate court panel that first heard his case on appeal, before losing in a 5-4 vote of the en banc United States Court of Appeal for the 4th Circuit -- all of those ruling are now vacated. The executive branch has seen partial defeats on multiple related issues (including the validity of the habeas corpus suspension in the Military Commission Act) before the U.S. Supreme Court.

The U.S. Supreme Court ruled as follows today:



The application of the Acting Solicitor General respecting the custody and transfer of petitioner, seeking to release petitioner from military custody and transfer him to the custody of the Attorney General, presented to The Chief Justice and by him referred to the Court is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., 340 U.S. 36

From here.

Al-Marri, a U.S. citizen, was lawfully in the United States on a student visa, when he was arrested within the United States by law enforcement officers on federal criminal charges involving fraud. While incarcerated and facing criminal prosecution in a federal court, George W. Bush declared him an enemy combatant and detained him indefinitely in a military brig, on the basis of a "declaration" from a senior government official (which is heresay) which was in turn based upon other heresay and never subjected to an evidentiary hearing or test.

Al-Marri filed a petition for habeas corpus in federal district court. The matter was appealed to the 4th Circuit Court of Appeals where Al-Marri lost. Al-Marri sought review by the U.S. Supreme Court. Instead, President Obama cancelled the enemy combatant designation and transferred al-Marri back to the federal criminal justice system facing new charges.

Per SCOTUS Blog:

With Friday’s order on Al-Marri, he will soon be taken into federal court for an initial appearance, to have the charges read to him. A grand jury in Illinois on Feb. 26 charged him with two counts of providing “material support and resources” to the Al Qaeda terrorist network. The maximum penalty on each charge is 15 years in prison. One day after the charges were filed, they were made public and President Obama ordered Al-Marri’s release by the military. He has been held at the U.S. Navy brig in Charleston, S.C., for more than five years without any charges, military or civilian. He was arrested at his home in Peoria, Ill., where he was attending Bradley University. The government later shifted him into military custody, saying he had come to the U.S. to take part in terrorism activities with a “sleeper cell” of Al Qaeda operatives.

The U.S. Supreme Court's decision to vacate the 4th Circuit ruling prevents the 4th Circuit Al-Marri en banc decision from making further bad law (notably, the decision to vacate was made with government consent). But, the 4th Circuit ruled against U.S. citizen Jose Padilla on otherwise similar facts, after which Padilla was transferred to the criminal justice system in Florida, where he was convicted (that conviction is now on appeal), and in that case, the U.S. Supreme Court overruled a 4th Circuit decision to vacate its decision in that case which it felt had been obtained based upon misrepresentations by government lawyers in the case. By refusing to hear the Al-Marri case now, the U.S. Supreme Court had eliminated the most plausible means by which the Padilla precedent in the 4th Circuit could have been overruled.

Therefore, while it is good news that the bad precedent in the Al-Marri case has been vacated, the bad news is that the U.S. Supreme Court did not use Al-Marri's case to overturn the binding 4th Circuit Court of Appeals precedent that held that Jose Padilla's detention as an enemy combatant solely upon the say so of the President was legal.

Furthermore, the first time that the Padilla case arrived at the U.S. Supreme Court, it held that jurisdiction and venue in a habeas corpus petition is proper only in the state where the person is currently being detained. So, simply by virtue of detaining an alleged enemy combatant somewhere within the jurisdiction of the 4th Circuit Court of Appeals, a President can benefit from the 4th Circuit's binding precedent in the Padilla case, subject only to the argument that it has been implicitly overruled by subsequent U.S. Supreme Court decisions.

In short, it appears that the authority of a President to detain a person lawfully within the United States (including U.S. citizens), without trial, upon the basis of a hearsay within hearsay affidavit that the person is an enemy combatant, remains good law in the United States, at least within the limitations set forth in the 4th Circuit ruling in the Padilla case.

Jose Padilla and Al-Marri were the only known individuals detained as enemy combatants within the United States long enough for their cases to make it through the court system. Neither has received any direct remedy (even credit for time served) for the harm they suffered while detained as enemy combatants, and neither was released for any reason other than the grace of the sitting President. Padilla, however, may have received some leniency at sentencing in light of what he had already been through. Neither man, it appears are facing criminal charges in connection with matters they were charged with prior to being detained as enemy combatants. The matters described in the enemy combatant declaration were not brought up in the criminal trial of Jose Padilla.

It is not clear clear what evidence is implicated in the new Al-Marri criminal case. IIRC, the charges brought against him originally were dismissed with prejudice when he was detained as an enemy combatant. There are also statute of limitations, speedy trial, time served, fruit of the poisonous tree evidence, and other unusual issues present in the current criminal trial, although no issues of that type were sufficient to prevent the conviction at trial of Jose Padilla, on rather thin evidence.

Also, Al-Marri, unlike Padilla, does not have a long prior criminal record, so if he is convicted, the sentence pursuant to the sentencing guidelines is likely to be much shorter. However, unlike Jose Padilla, Al-Marri faces deportation after he serves his sentence if he is convicted, and due to the expiration of his student visa, if he is not convicted.

In the end, George W. Bush established that there is no timely judicial remedy for extra-judicial detention in the face of national security concerns, even for people lawfully within the U.S., and that the Congress is willing to go a long way to ratify Presidential action regarding detainees for fear of being called weak on terrorism. But, these episodes also established that there are large and powerful forces within the international and domestic legal and political communities that are extremely uncomfortable with this approach, so the policy never reached beyond these two test cases in the U.S., and the government was never willing to risk having the U.S. Supreme Court rule on the issue and potentially invalidate the policy.

(Popular fiction and some press reports, by the way, wrongly attribute these detentions by the President to the U.S.A. PATRIOT Act, enacted shortly after the 9-11 attacks, actually does address the issue of non-criminal detentions of suspected terrorists, but does so in a far more measured way that gives the President far less power.)

It also isn't at all obvious that the courts would have tolerated this enemy combatant policy if it had been used more widely, as the U.S. Supreme Court indicated in an usual written order accomanying the dismissal of the Padilla case and its refusal to vacate the 4th Circuit decision in that case.

It is not clear if this will be the last judicial word on the enemy combatant doctrine in our generation from U.S. Courts. While the habeas corpus petitions are moot, the issues could come up in the direct criminal appeal of the Jose Padilla criminal conviction (or a collateral attack on that conviction), in the Al-Marri criminal case, or in a civil rights lawsuit brought by either man to the extent that this is not barred by the Military Commissions Act which contains broad grants of immunity, on top of already broad sovereign immunity and state secrets doctrines. Further, the right of each man to bring a civil rights suit might be waived in connection with a plea bargain or negotiated resolution of a criminal appeal. Padilla's may be barred by the doctrines of res judicata or collateral estoppel in any civil suit brough by him by the 4th Circuit ruling in his habeas corpus case.

Congress could, of course, act to prohibit the President from detaining people lawfully within the U.S., absent from combat, and not accused of engaging in combat in the United States, like Padilla and Al-Marri. But, a similar statute already on the books was swept away in the face of arguments that the authorization for the use of military force (which was later enacted) permitted these detention, and that the President has the unilateral authority as a commander-in-chief, to do so.

1 comment:

Michael Malak said...

It's clear in the Constitution, and affirmed in Ex parte Merryman and Hamdi v. Rumsfeld, that only the legislative branch can suspend habeus corpus, not the executive branch.

The fourth district court was clearly wrong, for by its logic, any declaration of war by Congress automatically suspends habeaus corpus.