Fourth Circuit Rules Against Bush Administration

Orin Kerr has the lowdown on the case, Al-Marri v. Wright, which ruled 2-1 against the Administration and would require Al-Marri be released from his current detention in a Navy brig.

Ali A-Marri is a citizen of Qatar who attended college in the U.S. in the late 1980s and early 1990s. Al-Marri then left the U.S.; he returned to the states on September 10, 2001, allegedly to attend graduate school at Bradley University. The government believes that Al-Marri is an Al-Qaeda member who is supposed to be part of the "second wave" of teror attacks following 9/11. Al-Marri was arrested in December 2001 in illinois and was charged criminally, but in 2003 President Bush signed an order declaring Al-Marri an "enemy combatant." Since then, Al-Marri has been held as an enemy combatant.

In today's decision, the Fourth Circuit ordered that l-Marri must be set free from military detention. After holding that Congress did not strip jurisdiction over the case in its 2005 and 2005 habeas legislation, the court held that the government does not have any statutory authority to detain Al-Marri and has no "inherent" constitutional authority to do so. According to Judge Motz, Al-Marri was not an "enemy combatant" who could be detained under the AUMF because unlike Hamdi, Al-Marri was just a suspected Al-Qaeda terrorist: he was not someone who had been connected to international hostilities like the war in Afghanistan. The court takes a very narrow view of the category "enemy combatant"; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist... the AUMF just doesn't reach so far as to permit the military to detain a civilian terrorist suspect in the U.S. like Al-Marri.

I get the sense that the full Fourth Circuit will be asked to rule on the question, to be followed by an appeal to the US Supreme Court.

ScotusBlog has much more, including the fact that the case turns on the government's failure to adhere to the MCA.

Under MCA, Judge Motz wrote, President Bush's order to the military to detain al-Marri was the first step -- an initial decision to detain. But, it concluded, there has been no second step. Under the law, she said, enemy combatant status must either be determined by a Combatant Status Review Tribunal -- the military administrative panels set up by the Pentagon -- or by some other "Executive tribunal." Neither has made such a ruling as to al-Marri, the decision said. (The CSRT panels are operating only for foreign nationals being held at the U.S. military prison camp at Guantanamo Bay, Cuba.) The President's designation of al-Marri does not satisfy both steps, the Court ruled.

The panel majority rejected a government argument that it could satisfy the second step by giving al-Marri a review by a CSRT. But the Court said Congress' authorization of the CSRT process does not apply to civilians captured and held within the U.S. "Congress sought to eliminate the statutory grant of habeas jurisdiction for those aliens captured and held outside the United States who could not lay claim to constitutional protections, but to preserve the rights of aliens like al-Marri, lawfully residing within the country with substantial, voluntary connections to the United States, for whom Congress recognized the Constitution protected the writ of habeas corpus."

The MCA's broader move to strip courts of habeas jurisdiction, by saying it applied to foreign nationals captured by the U.S. and held at places other than Guantanamo Bay, only means individuals being detained abroad, outside the U.S., the Court concluded.

There are quite a few interesting issues involved: 1) al Marri was not a US citizen, and yet the case appears to turn on Constitutional rights, which are granted to US citizens; 2) a terrorist is a terrorist regardless of whether captured on the battlefield or on the streets of US cities, and yet, if such an individual is captured in the States, they're provided legal protections, despite the fact that as a terrorist, none need be extended under the Geneva Conventions or international law.

This is one of those areas of law that terrorists can get to exploit time and time again, but also provides a slippery slope argument that once the government claims that someone is a terrorist, your protections under the Constitution are stripped away.

That argument is undermined because the Court ruled Al Marri was entitled to constitutional protections, despite his status not as a US citizen. So, if a terrorist manages to enter the US, he or she would be granted full legal protections, whereas a terrorist stopped outside the US, with the same plans and intent, would receive none/few of the legal protections (under the Military Commissions Act and other applicable federal law).

In the instant case, the court is not requiring Al Marri's release, but would require that the charges be brought to in the civilian criminal justice system. I would concur that this guy's complicity in a plot(s) against the US needs to be litigated quickly.

Al Marri, and others like him, are seemingly at a crossroads of the civilian criminal justice system and military justice - terrorists seeking to cause mayhem, mass murder, and the like. Once they cross the threshold of US shores, their legal status in the courts changes. The whole point of the Military Commissions Act was to create a legal scheme for dealing with transnational terrorists and what to do in instances where they were captured abroad, or picked up within the US. It would appear that the court found that the government failed to adhere to the MCA.

This case would seemingly have been avoided if the government determined his status either by an executive tribunal or a CSRT. That it was not done suggests that the government has not figured out how to deal with these detainees. It's also problematic that given that the MCA was created to avoid such problems, that the court is trying to read between the lines to carve out exceptions to the process.

The key question of how to detain and try detainees was supposed to have been resolved via the MCA, and yet we continue to see problems. With the difficulties involved in providing evidence on national security grounds, it has repeatedly been argued that military tribunals would be the appropriate setting so as to safeguard methods and personnel involved in gathering evidence against terrorist plots without divulging national security means. That the government has had problems suggests that the law wasn't nearly as clear as it should have been - or the prosecutors have not been doing the job they should have.