Court overrules Bush ‘enemy combatant’ policy

Judges: President may not detain legal U.S. resident without charging him

Updated: 1 hour, 54 minutes ago RICHMOND, Va. - The Bush administration cannot use new anti-terrorism laws to keep U.S. residents locked up indefinitely without charging them, a divided federal appeals court said Monday.

The ruling was a harsh rebuke of one of the central tools the administration believes it has to combat terror.

“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,” the court panel said.

In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel found that the federal Military Commissions Act doesn’t strip Ali al-Marri, a legal U.S. resident, of his constitutional rights to challenge his accusers in court. It ruled the government must allow al-Marri to be released from military detention.

The government intends to ask the full 4th Circuit to hear the case, Justice Department spokesman Dean Boyd said.

“The president has made clear that he intends to use all available tools at his disposal to protect Americans from further al-Qaida attack, including the capture and detention of al-Qaida agents who enter our borders,” Boyd said in a statement.

Al-Marri has been held in solitary confinement in the Navy brig in Charleston, S.C., since June 2003. The Qatar native has been detained since his December 2001 arrest at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11, 2001, terrorist attacks to study for a master’s degree at Bradley University.

“This is a landmark victory for the rule of law and a defeat for unchecked executive power,” al-Marri’s lawyer, Jonathan Hafetz, said in a statement. “It affirms the basic constitutional rights of all individuals — citizens and immigrants — in the United States.”

The court said its ruling doesn’t mean al-Marri should be set free. Instead, he can be returned to the civilian court system and tried on criminal charges.

“But the government cannot subject al-Marri to indefinite military detention,” the opinion said. “For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely.”

Al-Marri is currently the only U.S. resident held as an enemy combatant within the U.S.

CNN video report

From Marty Lederman @ Balkinization

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.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute -- enacted years after al-Marri’s seizure -- strips federal courts of jurisdiction even to consider this habeas petition.

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.

After awhile Marty started to dig into the decision and Low and behold - It's about the Bushies desire for torture.

Read this ...

For now, I want to focus on another, much less prominent but equally important part of the opinion -- the second paragraph of footnote 16, on page 59.

As the Court held in Hamdi, and as both the majority and dissent stress in today's opinion, the traditional purpose of military detention -- and the presumed reason Congress has authorized it as to some persons -- is to incapacitate, or immobilize, the enemy -- "to prevent the captured individual from serving the enemy." Territo (quoted in the dissent at page 82).

Let's assume for the sake of argument that the majority in today's opinion was wrong on its main point -- i.e., let's assume arguendo that al-Marri is, like Hamdi, within the class of persons for whom Congress has authorized military detention.

Even so, his military detention here would be of very dubious legality.

Why is that?

Because he was already immobilized. al-Marri had been arrested on criminal charges in February 2002. He was held in custody by the U.S. for 16 full months before the President ordered him transferred to military detention in June 2003. And that transfer occurred, not coincidently, as soon as the trial court set a hearing on a motion al-Marri had made to suppress some evidence in his trial.

Thus, the predicate for any authorization to militarily detain al-Marri simply was not present -- he was already incapacitated and could no longer serve the enemy.

So why was he transferred? As the court suggests in note 16, he was transferred in order to subject him to coercive, possibly abusive, interrogation.

The timing here is suspicious. Recall that when al-Marri was originally detained on criminal charges, the Uniform Code of Military Justice prohibited the military from using any cruelty or maltreatment, not to mention assault and threats, against detainees. It was in March of 2003 that the Department of Justice told the Pentagon that the President could, as Commander-in-Chief, disregard those statutory constraints (as well as those imposed by the Torture Act and the Convention Against Torture). Therefore it is not surprising that for the first sixteen months of al-Marri's military confinement, starting in June 2003 (i.e., just after the DOJ Commander-in-Chief advice), the Government did not permit him any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.

And if that -- abusive interrogation -- was the reason for the military detention, then Congress did not authorize it, even if al-Marri could have been militarily detained for incapacitation purposes in the first instance. As the court explains:

The Government’s treatment of others [in the criminal justice system] renders its decision to halt al-Marri’s criminal prosecution -- on the eve of a pre-trial hearing on a suppression motion -- puzzling at best. Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that "indefinite detention for the purpose of interrogation is not authorized." 542 U.S. at 521. We note, however, that not only has the Government offered no other explanation for abandoning al-Marri’s prosecution, it has even propounded an affidavit in support of al-Marri’s continued military detention stating that he "possesses information of high intelligence value." See Rapp Declaration. Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an "enemy combatant" only after he became a "hard case" by "reject[ing] numerous offers to improve his lot by . . . providing information." John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006).

This paragraph explains, I think, why it is very unlikely that the government will prevail on appeal in this case--because not only wasn't there any authorized reason for the transfer of al-Marri from criminal to military detention, but, more importantly, because it is manifest that the actual reason for transfer was fundamentally illegitimate, unauthorized by Congress, and already proscribed by the Supreme Court.

Habeus Corpus timeline from the ACLU