Regular DailyKos blogger and author of The Canary in the Coalmine, Jesselyn Radack, posted an interesting diary the other day about the fate of Ali Saleh Kahlah al-Marri, one of three civilians detained as enemy combatants despite being arrested in the United States under domestic charges. The other two: Jose Padilla, recently convicted; and Yaser Esam Hamdi, a former US citizen now living in Saudi Arabia.
According to Ms. Radack, Al-Marri's case is being re-examined by the Fourth Circuit en banc.
Why? Because the decision looks to treaty obligations under the Hague and Geneva Conventions and recognizes that the Administration's arguments run directly contrary to the Constitution...
This is yet another case founded on the presumption by the administration that the Authorization for Use of Military Force (AUMF) authorizes the President to do anything with the military he wishes to do. Let's address the abuse of habeas corpus that has taken place in al-Marri's case.
Crossposted from SmokeyMonkey.org.
Introduction
Ali Saleh Kahlah al-Marri's case involves basic rights under the constitution and those international treaties that have the power of law in this country, as do the other cases mentioned above. I have written about the importance of the Hamdi case previously in What the AUMF Doesn't Authorize. Jose Padilla was recently convicted on charges of conspiracy to be a terrorist (read Paul Craig Roberts on why this was a bogus conviction). All three men allege they were tortured in the South Carolina brig in which they were imprisoned without charge or counsel for years after their arrests.
Al-Marri's case, like the others, has turned on interpretations of habeas corpus. In all three cases, US citizens were arrested and detained with no charges. This is a clear violation of constitutional habeas corpus. No amount of gibbering about "enemy combatants" will make it not so. Furthermore, al-Marri and Padilla were both arrested within the borders of the United States. Even aliens arrested within our own borders are afforded habeas corpus rights. As I understand it, Congress believes it can take such rights away with the passing of legislation. This statutory habeas corpus is said to apply to aliens, especially those captured outside of the United States.
This clearly is not at issue in the al-Marri case. In fact, the decision in the case (FindLaw) clearly indicates this from the beginning.
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.
Despite repeated attempts by Congress over the last several years to legislate that the Constitution does not apply to those designated terrorists, the courts have predictably refuted this stance. Therefore, court-stripping measures, such as the Military Commissions Act (MCA), have been introduced to prevent judicial review of executive assertions. This is one of the more important pieces of the opinion and is well-represented with this quote:
For these reasons, we must conclude that the MCA [Military Commissions Act] does not apply to al-Marri. He was not captured outside the United States, he is not being held at Guantanamo Bay or elsewhere outside the United States, he has not been afforded a CSRT [Combatant Status Review Tribunal], he has not been "determined by the United States to have been properly detained as an enemy combatant," and he is not "awaiting such determination." The MCA was not intended to, and does not, apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States. Accordingly, the Government’s jurisdictional argument fails and we turn to the merits of al-Marri’s petition.
Despite Congress' effort to whitewash the human rights violations taking place in Guantanamo Bay, that were and may still be taking place in Eastern Europe under the black sites rendition program, and that are apparently continuing in military brigs in the US today, a statutory authorization does not supercede the constitution. Constitutional rights are first and foremost the law of the land.
The Administration's Argument
Before we begin dissecting the case, let us be clear about the real significance of the case. While Ms. Radack seems to downplay the importance of the ruling (that US citizens or those residing here legally cannot be detained indefinitely) is limited to a small class of people (those aliens living here legally), I do not believe that to be insignificant or even the real value of the ruling. Simply put, this is another case that demonstrates very clearly where the separation of powers between the three branches of government meet.
The Government contends that the district court properly denied habeas relief to al-Marri because the Constitution allows detention of enemy combatants by the military without criminal process, and according to the Government it has proffered evidence that al-Marri is a combatant. The Government argues that the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001), as construed by precedent and considered in conjunction with the "legal background against which [it] was enacted," empowers the President on the basis of that proffered evidence to order al-Marri’s indefinite military detention as an enemy combatant. Alternatively, the Government contends that even if the AUMF does not authorize the President to order al-Marri’s military detention, the President has "inherent constitutional power" to do so.
The adminstration's argument relies on the Authorization for Use of Military Force (AUMF), that dreadful piece of legislation that cedes Congress' authority to declare war to the resident of the White House. I have argued for the repeal of the AUMF repeatedly in the case of Iraq, and I have written about the limitations of the original AUMF that followed September 11th.
The contentiousness of the administration's constitutional argument revolves around one sentence in the constitution that names the President "Commander-in-Chief". It is vastly simple to deflate this argument, and it strikes me as silly that it has been done repeatedly, already, by the Supreme Court, and yet the Democratically controlled Congress bends over backwards in order to provide further authorization every time the inherent argument is defeated.
It must end. The following should help clarify why the arguments for continued authorization of anything for this administration must cease.
We do not question the President’s war-time authority over enemy combatants; but absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. See Toth, 350 U.S. at 14 ("[A]ssertion of military authority over civilians cannot rest on the President’s power as commander-in-chief, or on any theory of martial law."). The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them "enemy combatants." [emphasis mine]
Merits of the Case
Below is a bullet point summary of their judgement as to the merits of al-Marri's case.
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The Constitution guarantees that no "person" shall "be deprived of life, liberty, or property, without due process of law." U.S. Const., amend. V; see also id. amend. XIV, § 1. The text of the Fifth Amendment affords this guarantee to "person[s]," not merely citizens, and so the constitutional right to freedom from deprivation of liberty without due process of law extends to all lawfully admitted aliens living within the United States.
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Thus, the Due Process Clause protects not only citizens but also aliens, like al-Marri, lawfully admitted to this country who have established substantial connections here -- in al-Marri’s case by residing in Illinois for several months, with his family, and attending university there.
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The Court, however, has permitted a limited number of specific exceptions to this general rule. Although some process is always required in order to detain an individual, in special situations detention based on process less than that attendant to a criminal conviction does not violate the Fifth Amendment.
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The act of depriving a person of the liberty protected by our Constitution is a momentous one; thus, recognized exceptions to criminal process are narrow in scope, and generally permit only limited periods of detention.
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[I]n this country, the military cannot seize and indefinitely detain an individual -- particularly when the sole process leading to his detention is a determination by the Executive that the detention is necessary...
Ultimately, this leads to just one conclusion (which one judge decided to reject in a brief dissent centered around 'war on terror' lingo): al-Marri is entitled to a writ of habeas corpus, and he must be charged or released. "But military detention of al-Marri must cease."
The opinion touches on many issues of constitutional importance, but I understand if the reader would like to skip the details and move to the summary.
Extended Review of Opinion
The AUMF does not eliminate constitutional protections.
To read the AUMF to provide the President with such unlimited power would present serious constitutional questions, for the Supreme Court has long recognized that the Due Process Clause "cannot be . . . construed as to leave congress free to make any process ‘due process of law,’ by its mere will." See Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276-77 (1855).
Precedents of interpreting the AUMF.
The precedent interpreting the AUMF on which the Government relies for this argument consists of two cases: the Supreme Court’s opinion in Hamdi, 542 U.S. 507, and our opinion in Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005). The "legal background" for the AUMF, which it cites, consists of two cases from earlier conflicts, Ex Parte Quirin, 317 U.S. 1 (1942) (World War II), and Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (U.S. Civil War), as well as constitutional and law-of-war principles.
Thus, although Hamdi, Quirin, and Padilla distinguish Milligan, they recognize that its core holding remains the law of the land. That is, civilians within this country (even "dangerous enemies" like Milligan who perpetrate "enormous crime[s]" on behalf of "secret" enemy organizations bent on "overthrowing the Government" of this country) may not be subjected to military control and deprived of constitutional rights.
That is, even the worst criminals (like Timothy McVeigh), are entitled to legal due process because our constitution applies to everyone, at least in the US. For me, arguing that our constitution is specially reserved for some folks and not others is the most insidious kind of bigotry.
The AUMF has no legal connection to al-Qaida in court precedent.
As discussed above, both Hamdi and Padilla upheld the President’s authority pursuant to the AUMF to detain as enemy combatants individuals (1) who affiliated with and fought on behalf of Taliban government forces, (2) against the armed forces of the United States and its allies, (3) on the battlefield in Afghanistan. In both cases, however, the Government also contended that the AUMF provided the President with even broader authority to subject to military detention, as enemy combatants, persons otherwise involved "in the global armed conflict against the al Qaeda terrorist network." But neither the Supreme Court in Hamdi, nor this court in Padilla, accepted the Government’s invitation to fashion such a broad construction of the AUMF.
Thus, the Government is mistaken in its representation that Hamdi and Padilla "recognized" "[t]he President’s authority to detain ‘enemy combatants’ during the current conflict with al-Qaeda." No precedent recognizes any such authority.
That is, not only can the military not indefinitely detain civilians legally in the US (see discussion on Patriot Act in opinion for information on illegal aliens), but the court has repeatedly decided that the AUMF does not refer to fighting al-Qaida everywhere and forever, but rather to Taliban-controlled Afghanistan. Where the government has failed to make a connection between the detainee and an actual battlefield or an actual act of support of the Taliban, it has failed to win its case.
The conflict with al-Qaida is not a war. It is governed by the Geneva Convention, Common Article 3.
In Hamdan, the Court held that because the conflict between the United States and al Qaeda in Afghanistan is not "between nations," it is a "‘conflict not of an international character’" -- and so is governed by Common Article 3 of the Geneva Conventions.
[S]ince the legal status of "enemy combatant" does not exist in non-international conflicts, the law of war leaves the detention of persons in such conflicts to the applicable law of the detaining country. In al-Marri’s case, the applicable law is our Constitution.
Neither Quirin nor any other precedent even suggests, as the Government seems to believe, that individuals with constitutional rights, unaffiliated with the military arm of any enemy government, can be subjected to military jurisdiction and deprived of those rights solely on the basis of their conduct on behalf of an enemy organization.
The President's constitutional powers are not what he thinks they are.
The Government summarily argues that even if the AUMF does not authorize al-Marri’s seizure and indefinite detention as an enemy combatant, the President has "inherent constitutional authority" to order the military to seize and detain al-Marri. The Government maintains that the President’s "war-making powers" granted him by Article II "include the authority to capture and detain individuals involved in hostilities against the United States."
Justice Jackson explained that "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress."
The President cannot seize domestic terrorists (using the military).
The President’s constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri without criminal process any more than they permit the President to order the military to seize and detain, without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing.
Of course, this does not mean that the President lacks power to protect our national interests and defend our people, only that in doing so he must abide by the Constitution. We understand and do not in any way minimize the grave threat international terrorism poses to our country and our national security. But as Milligan teaches, "the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence." Milligan, 71 U.S. at 121. Those words resound as clearly in the twenty-first century as they did in the nineteenth.
Summary
Essentially, the decision rests on one main logical theme: What should happen to civilians labelled as "terrorists"? Since the constitution supercedes legislation where there is a conflict of the two, the court was unanimous in rejecting the jurisdictional argument discussed in the introduction. They were then split only on the question of whether al-Marri had been properly labelled an enemy combatant. The dissent claimed, basically, that he was, trust the President, and proceed with the war on terror as scheduled (ie, with no end in sight). The plurality was much more nuanced in their opinion, following case law deep into the constitutional issues of both separation of powers and habeas corpus.
For the foregoing reasons, we reverse the judgment of the district court dismissing al-Marri’s petition for a writ of habeas corpus. We remand the case to that court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a reasonable period of time to be set by the district court. The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.