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:

CERTIORARI -- SUMMARY DISPOSITION

08-368 AL-MARRI, ALI V. SPAGONE, DANIEL (08A755)

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
(1950).

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.

Mixed Result For Al-Marri In En Banc Review Ruling

There have been just two people detained as enemy combatants in the United States.

One, Jose Padilla, a U.S. citizen, was criminally prosecuted for conspiracy and his enemy combatant status was vacated before his case was fully litigated, leaving in place a bad precedent in a moot case. Padilla was ultimately convicted and sentenced to a long prison term. His case is now being appealled in the civilian courts.

The other, al-Marri, is a non-citizen legally in the country, was criminally prosecuted, after which he was removed from the criminal justice system upon being declared an enemy combatant.

The controlling 5-4 per curiam ruling in his case states:

PER CURIAM:

Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).

Subsequently, this court vacated that judgment and considered the case en banc. The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has
empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.*

Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process
to challenge his designation as an enemy combatant.

Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.

*We deny the Government’s motion to dismiss this case for lack of jurisdiction. The Government relied on section 7 of the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600, which amended the Detainee Treatment Act (DTA) of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en banc argument in this case, the Supreme Court declared section 7 of the MCA unconstitutional. See Boumediene v. Bush, 553 U.S. ___, ___, slip op. at 64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Marri’s habeas petition.

Thus, Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voted with the government on both issues, while Judges Michael, Motz, King, and Gregory voted against the government on both issues. The swing vote was Judge Traxler who upheld the government's authority to detain Al-Marri if the allegations made were true, but stated that Al-Marri was not afforded sufficient due process, so that further proceedings are required.

The highly divided en banc panel of the 4th Circuit (links are available at How Appealing) reached its decision in a 5-4 vote that spawned seven opinions.

Either parties may either further appeal to the U.S. Supreme Court, which refused to grant certiorari prior to the en banc decision, or may see what happens upon remand. SCOTUS blog reports that Al-Marri plans an appeal to the U.S. Supreme Court, while the government is willing to let the ruling stand and proceed to dealing with the case on remand.

The best indication of the rights that Al-Marri will have on remand flow from swing Judge Traxler's concurring opinion. This states:

The general rule, therefore, is that al-Marri would be entitled to the normal due process protections available to all within this country, including an opportunity to confront and question witnesses against him. But, if the government can demonstrate to the satisfaction of the district court that this is impractical, outweighed by national security interests, or otherwise unduly burdensome because of the nature of the capture and the potential burdens imposed on the government to produce non-hearsay evidence and accede to discovery requests, then alternatives should be considered and employed. Given the grave national security concerns in matters such as this, and that the Rapp Declaration references not only al-Marri’s activities in this country but also those he engaged in abroad prior to his entry here, the Rapp Declaration might conceivably prove to be "the most reliable available evidence" within the meaning of Hamdi, at least as to some allegations. However, I am not satisfied to let matters stand as they are when the government has not even been required to demonstrate to the district court why it cannot or should not be required to produce, even for ex parte examination, any of the supporting evidence relied upon by Rapp to justify al-Marri’s detention. Here, the government has made no showing that "[h]earsay . . . [needs] to be accepted as the most reliable available evidence from the [g]overnment" or that the "exigencies of the circumstances . . . demand . . . [that the] enemy combatant proceeding[ ] . . . be [otherwise] tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." Hamdi, 542 U.S. at 533-34; cf. Boumediene, slip op. at 64-65 ("Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept.")

In other words, the government will be required to present some real evidence and to justify decisions to withhold evidence on an individualized basis, but may still be permitted to withhold some evidence from Al-Marri.

This ruling, on the power of the President to treat someone outside a war zone in the continental United States as an enemy combatant is the most important of all the war on terror cases other than Padilla, because the habeas corpus rights of people within the United States have a far greater impact on the typical American or American immigrant's constitutional rights. It does not appear to overrule the troubling Padilla holding, although it does appear to narrow it.

Trial By Newspaper

Mr. Al-Marri, the only person detained as an "enemy combatant" in the United States, whose detention has been held to be unlawful by the conservative United States Court of Appeals for the 4th Circuit (the government has requested en banc review of the decsion), was profiled today by the Washington Post, in a lengthy story that, if true, coroborates government arguments that Al-Marri is indeed a man who was ready to commit or conspire to commit terrorist acts.

It is pretty clear, from the nature of the information in the story, that it flows from an intentional leak by government officials of information that, until they lost in court, they had insisted on maintaining in the utmost secrecy for five years. Most likely, this was done in an effort to sway the judges on the en banc panel of the 4th Circuit, who might not otherwise be able to imagine why the government is acting as it is in his case.

But, the real question is why the administration hasn't allowed these facts to come out in a habeas corpus hearing or criminal terrorism proceeding, rather that insisting on a "because I say so" stance. The handling of Al-Marri's case by the administration has done untold damage to the effectiveness of the United States in diplomatic circles and through international cooperation in stopping terrorism, and his detention has also apparently not produced any meaningful intelligence.

In contrast, a public trial, revealing the details alleged, could have provided a perfect forum for the administration to prove the the country and to the world, that they are doing more than crying wolf over terrorism allegations, and that their actions with regard to this man in particular are justified.

The facts described in the Washington Post article are far more persausive than the case that the prosecution put forth against Jose Padilla in Miami, Florida these past nine weeks. But, they haven't been tested in a court. The admininstration is trying to try Al-Marri's case in the newspapers, and its history of exaggerating the facts in cases like Padilla's and those of hundreds of other criminal terrorism defendants and Guantanamo Bay detainees has undermined its credibility.

In a self-fulfilling prophecy, the Bush Administration's misguided approach to terrorism and insistence on fighting an ill advised war in Iraq, have put our nation at greater risk of a terrorist attack. Nobody doubts that the threat from Al-Quida is real now, whatever the danger was before if it had been handled properly. But, the FBI and local law enforcement appear to be considerably better suited to the task, domestically, than the spooks and the military.

In Iraq and at home, the basic lesson that the administration has failed to learn is that it isn't enough and is sometimes counterproductive even, to simply try to kill bad guys. You have to win in a manner that makes clear your moral superiority. We need to be able to say, as Harry Potter says at the end of the Order of the Phoenix, "We've got something he doesn’t have. We've got something worth fighting for." So long as the Bush Administration insists on acting like an evil empire, it will encourage attacks on the United States. They've already put us at greater risk by their actions. And, unless we change course, we will simply keep making our enemies stronger.

Al-Marri Wins Habeas Appeal

Al-Marri's case is identical in most material respects legally to the more famous case of Jose Padilla, except that Padilla was a U.S. citizen, while Al-Marri was a legal alien. This makes the 4th Circuit's 2-1 ruling today holding that Al-Marri's detention as an enemy combatant is illegal very significant. Al-Marri is the only person publicly known to be held within the boundaries of the United States as an enemy combatant today.

The ruling holds that the Military Commissions Act of 2006 does not apply to Al-Marri, distinguishing a D.C. Circuit ruling that held that the act stripped courts of jurisdiction over detainees at Guantanamo Bay, basically on the grounds that Al-Marri was not provided with a combat status review tribunal review (and with a heavy hand in favor of Al-Marri to construe the statute in a manner that avoided a constitutional question).

It distinguished the Hamdi and Padilla cases from Al-Marri's case largely on the grounds that both Mr. Hamdi and Mr. Padilla were alleged to have taken up arms in Afghanistan, while Al-Marri was not alleged to have done so. In short, the core holding of the Al-Marri case is that civilians who coordinate with or support an enemy do not by doing so make themselves enemy combatants, even though they may have violated crimes applicable to civilians. Thus, the Civil War case Milligan, rather than Hamdi or Padilla or the World War II cases that underlie the governments case applies.

The ruling for Al-Marri is still narrow. It does not presume to look beyond the government's stated reasons for detaining a person, and does not address whether the courts can be deprived of jurisdiction in similar cases where a Combat Status Review Tribunal is convened by the government for someone detained in the United States (although even the D.C. Circuit holding validating the Military Commissions Act of 2006 ruled on a basis that would imply that in those circumstances that the Military Commissions Act of 2006 would be unconstitutional).

The United States Court of Appeals for the Fourth Circuit is a conservative venue and had the Padilla case on the books. It could easily have caved in the Al-Marri case as well, most easily on jurisdictional grounds. But, instead, it said that enough was enough.

In the end, the 4th Circuit orders the government is directed to release Al-Marri from military custody within "a reasonable period of time." It may release him entirely, charge him with a crime, commence proceedings to deport him, hold him as a material witness, or hold him for a limited period of time under the Patriot Act. This is less of an option that the Court's ruling would suggest, however. For the charges upon which Al-Marri was originally held, there are serious speedy trial, statute of limitations and time served issues. Should Al-Marri face new charges, there are issues of the taint the evidence against him may have of coercion used in obtaining evidence. Showing that Al-Marri is held in good faith as a material witness is difficult at this point, as he has been out of action for four years making his knowledge stale. And, Patriot Act detention is indeed for a limited period of time. Deportation of Al-Marri to Qatar is probably the most attractive option for the Government if it loses in the U.S. Supreme Court.

The dissent simply finds that the jurisdiction stripping provisions of the Military Commission Act of 2006 is unconstitutional in this case. But, the dissent finds that the enemy combatant designation was proper. The dissent finds that an allegation that someone is a sleeper agent sabateur is good enough.

An appeal to the U.S. Supreme Court is almost certain (eventually). How it will treat this case is not. Also, the Bush Administration may, as it did in the Padilla case, look for a way to moot this case before it reaches the U.S. Supreme Court as a form of damage control. It probably believed it was going to win this case, or it likely would have done so before a precedential opinion was issued in this case.

Update: SCOTUS Blog reports a request for en banc review in the 4th Circuit by the government, which apparently sees this as more friendly forum than SCOTUS apparently.

Slate on Al-Marri

The Al-Marri case is IMHO, one of the most important constitutional cases pending today. Slate explains why. Particularly telling is former attorney-general Ashcroft's revealilng statement about the case (emphasis added):

former Attorney General John Ashcroft describes the arrest five years ago of Ali Saleh Kahlah al-Marri at his home in Peoria, Ill. Al-Marri was picked up as a material witness in the 9/11 investigation and charged with credit-card fraud and making false statements to the FBI. His case was a month away from trial in federal court. And then it wasn't. Al-Marri "rejected numerous offers to improve his lot by cooperating with the FBI investigators and providing information," Ashcroft writes, and "consequently," President Bush declared him an enemy combatant.

Hearsay is admissable in combatant status tribunals. Perhaps the appellate courts ought to take judicial notice of Ashcroft's hearsay statement as well, in making its decision.