by hilzoy
From the Washington Post:
“A federal appeals court today ruled that the U.S. government cannot indefinitely imprison a U.S. resident on suspicion alone, and ordered the military to either charge Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.
The opinion is a major blow to the Bush administration’s assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States. The government is expected to appeal the 2-1 decision handed down by a three-judge panel of the conservative U.S. Court of Appeals for the Fourth Circuit, which is in Richmond, Va.
The decision is a victory for civil libertarians and Marri, a citizen of Qatar who was a legal resident of the United States and studying in Peoria, Ill., when he was arrested in December 2001 as a “material witness.” He was detained initially in civil prisons, then transferred to a naval brig in Charleston, S.C. , where he has been confined for the past five years.
The government argued that Marri, who had met with al-Qaeda leader Osama bin Laden, was sent to the United States for a second wave of terrorist attacks.
The appeals panel said President Bush overstretched his authority by declaring Marri an “enemy combatant,” because the Constitution protects both U.S. citizens and legal residents such as Marri from an unchecked military and from being detained without charges and a fair trial.”
Marty Lederman has posted the decision here (pdf). It’s quite interesting. It rejects a whole slew of the government’s claims: that the Military Commissions Act strips al-Marri of habeas rights, that the Authorization for the Use of Military Force empowers the President to detain people in this country and designate them ‘enemy combatants’ at will, and that the President has the inherent power to do this under Article II. Excerpts and further discussion below the fold.
Excerpts from the beginning of the opinion:
“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. (…)
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.”
And from the end:
“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.’ (…)
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. Thus, the President plainly has plenary authority to deploy our military against terrorist enemies overseas. See Curtiss Wright, 299 U.S. at 319-20; see also Eisentrager, 339 U.S. at 789.
Similarly, the Government remains free to defend our country against terrorist enemies within, using all the considerable powers “the well-stocked statutory arsenal” of domestic law affords. Hamdi, 542 U.S. at 547 (Souter, J., concurring in the judgment) (citing numerous federal statutes criminalizing terrorist acts). Civilian law enforcement officers may always use deadly force whenever reasonable. See Scott v. Harris, 127 S. Ct. 1769, 1776-78 (2007). Furthermore, in the wake of September 11th, Congress has specifically authorized the President to deploy the armed forces at home to protect the country in the event of actual “terrorist attack[s] or incident[s]” within the United States meeting certain conditions. See 10 U.S.C.A. § 333(a)(A) (2007) (amending the Insurrection Act to provide the President with this authority, notwithstanding the Posse Comitatus Act, 18 U.S.C. § 1385).But in this nation, military control cannot subsume the constitutional rights of civilians. (…)
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. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
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.”
Two points:
First, part of the Court’s argument for the claim that the Military Commissions Act does not strip al-Marri of habeas rights is the following. The MCA says that “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” The Court reads the qualification ‘who has been determined by the United States to have been properly detained as an enemy combatant’ to mean that the MCA envisions a two-step process: first someone is detained as an enemy combatant, and then that person is determined to have been ‘properly’ so detained. In the case of Guantanamo detainees, this determination is made by Combatant Status Review Tribunals. But al-Marri, not being at Guantanamo, never got a CSRT. The government argued that the President’s determination that al-Marri is an enemy combatant is adequate for these purposes; the Court says it is not.
(The government also argues, in one of those moves that would be amusing if nothing important were at stake, that it might give al-Marri a CSRT if the Court thinks this necessary, and that for that reason he should be considered to be ‘awaiting’ a determination. This is one of many moments that lead the Court to write one of those dry, sardonic passages that hide the thought “are you frackin’ kidding me?” beneath a veneer of calm sobriety, and that are one of my favorite features of legal writing. In this case, after detailing some of the odder consequences of reading the MCA as the government suggests, the Court writes: “The Government offers nothing to indicate that Congress embarked on this strange course …” Elsewhere, the Court seems to take an even dimmer view of the government’s reasoning: “In view of the holdings in Hamdi and Padilla, we find it remarkable that the Government contends that they “compel the conclusion” that the President may detain al-Marri as an enemy combatant”; “The Government can so contend only by both ignoring the undisputed and relying on the inapposite”; etc.)
It’s unclear whether al-Marri could have had a CSRT. But surely, if one were a government lawyer, one would spot this line of argument in advance and try to get someone to provide some CSRT-like procedure to determine whether al-Marri’s detention as an enemy combatant was “proper”. Once the MCA was passed, this is just an obvious thing to do. The fact that the government didn’t bother to do it, like the fact that they didn’t make sure that military commissions actually had jurisdiction over the detainees at Guantanamo, looks to me like one more example of this administration’s fundamental lack of seriousness about its alleged raison d’etre, the war on terror.
Second: in the section dealing with the question whether the AUMF justifies detaining al-Marri, the Court argues that the term ‘enemy combatant’ is well-defined in international law when the combat in question is an ‘international conflict’; that it refers to someone who has taken up arms against us on behalf of a foreign country in a combat zone; that the AUMF does authorize the government to detain ‘enemy combatants’ so construed; but that al-Marri does not satisfy this definition of ‘enemy combatant’:
“Al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world.”
What al-Marri is alleged to have done is to have been a member of al Qaeda plotting terrorist attacks. The Court rejects the idea that this makes him an enemy combatant, as opposed to a criminal:
“The core assumption underlying the Government’s position, notwithstanding Hamdi, Padilla, Quirin, Milligan, and Hamdan, seems to be that persons lawfully within this country, entitled to the protections of our Constitution, lose their civilian status and become “enemy combatants” if they have allegedly engaged in criminal conduct on behalf of an organization seeking to harm the United States. Of course, a person who commits a crime should be punished, but when a civilian protected by the Due Process Clause commits a crime he is subject to charge, trial, and punishment in a civilian court, not to seizure and confinement by military authorities.
We recognize the understandable instincts of those who wish to treat domestic terrorists as “combatants” in a “global war on terror.” Allegations of criminal activity in association with a terrorist organization, however, do not permit the Government to transform a civilian into an enemy combatant subject to indefinite military detention, any more than allegations of murder in association with others while in military service permit the Government to transform a civilian into a soldier subject to trial by court martial. See United States ex rel. Toth v. Quarles, 350 U.S. 11, 23 (1955) (holding that ex-servicemen, “like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the 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. In fact, Milligan rejected the Government’s attempt to do just this. There, the Court acknowledged that Milligan’s conduct — not “mere association” with, cf. post at n.3, but also “joining and aiding” a “secret political organization, armed to oppose the laws, and seek[ing] by stealthy means to introduce the enemies of the country into peaceful communities, there to . . . overthrow the power of the United States” — made him and his coconspirators “dangerous enemies to their country.” 71 U.S. at 6, 130. But the Government did not allege that Milligan took orders from any enemy government or took up arms against this country on the battlefield. And so the Court prohibited the Government from subjecting Milligan to military jurisdiction for his “enormous crime.” Id.
Although Milligan was an “enem[y]” of the country and associated with an organization seeking to “overthrow[] the Government” of this country, he was still a civilian. Id. Milligan’s conduct mirrors the Government’s allegations against al-Marri. If the Government’s allegations are true, like Milligan, al-Marri is deplorable, criminal, and potentially dangerous, but like Milligan he is a civilian nonetheless.”
The question who should count as an enemy combatant, besides someone who has actually joined the military of a hostile state and taken up arms against this country, is a critical one. It cannot enough to be a member of a loathsome organization devoted to criminal violence: if it were, we should count members of the mafia as enemy combatants, not criminals. It cannot be enough to be a member of a violent organization bent on overthrowing the government: if it were, then the government would have had the right not just to imprison and prosecute members of the Weather Underground or the Symbionese Liberation Army or the Montana Militia, but to detain them without charges.
For my part, I think that we should limit the category ‘enemy combatant’ to cases of actual, not metaphorical, war. There is a reason to adopt different judicial processes to deal with enemy soldiers. For one thing, enemy soldiers have a very different legal status than civilians — they can do things civilians can’t, like shoot at our soldiers legally; they cannot do things civilians can do, like disobey the lawful orders of a superior; and in all sorts of ways the rules are different. Moreover, when we are actually fighting a war, then there is a real reason to think: we cannot expect e.g. the normal rules governing evidence to apply to people captured on a battlefield. But none of these things are true in the case of people with whom we are not actually engaged in military hostilities.
In any case, though, the sooner we clarify this by adopting some law that clearly explains how one enters the supposed intermediate state between being a criminal and being a lawful enemy combatant, the better off we will all be.
(Question for you lawyers: if the argument about enemy combatants in this decision stands, will it provide any basis to challenge the detention of e.g. Guantanamo detainees who were not captured on a battlefield, and have not taken up arms against the US? I know it won’t do so directly, but will it be useful at all?)
***
More at Balkinization, SCOTUSblog, Volokh.
UPDATE: Marty Lederman has a new, and very interesting, post up here.
NY Times version here. Nobody seemed interested when I posted the decision a few hours ago.
CharleyCarp on the LOLIS standard is also good, by the way.
“For my part, I think that we should limit the category ‘enemy combatant’ to cases of actual, not metaphorical, war.”
Wait, you’re saying that every kid who puffs on a joint isn’t an enemy combatant in the war on drugs?
This is wartime, damnit! And it always will be, so long as we’re in wars on concepts.
It’s a fine decision, but excellent reading and logic as it is, I’m less confident of the SCOTUS of Alito, Roberts, Thomas and Scalia, and Justice “Convince Me” Kennedy.
I’m highly pleased to see Milligan so strongly upheld, though.
FWIW, I think Kennedy will vote with Stevens et al. on this one — the bankruptcy of our present scheme has become too well known, and the Patriot-Act argument (irony!) is rather persuasive. I don’t think Kennedy wants to be the fifth vote in favor of ratifying the evisceration of the rule of law.
N.b. however that an actual ex-law clerk for Kennedy thinks otherwise, at least on a first skim; see the Volokh link above.
How many tank divisions does the Fourth Circuit Court of Appeals have? Because I’m starting to think it’s going to require extraordinary means to pry Cheney’s grasp off of the Unitary Executive theory.
How many tank divisions does the Fourth Circuit Court of Appeals have? Because I’m starting to think it’s going to require extraordinary means to pry Cheney’s grasp off of the Unitary Executive theory.
Nah. Look at the Hamdi case. We were told he was THE WORST OF THE WORST, a danger to all Americans … and then we released him & made him promise not to sue us.
Or Padilla, who suddenly was suitable for the civilian courts just as soon as the Supreme Court was going to get to address the merits.
Massi will be the same way. As I think Scott Horton said recently, people who really believe in their legal theories don’t fight tooth & nail to keep their merits from being reviewed by the courts.
It certainly seems like the correct decision.
But this part concerns me:
Second: in the section dealing with the question whether the AUMF justifies detaining al-Marri, the Court argues that the term ‘enemy combatant’ is well-defined in international law when the combat in question is an ‘international conflict’; that it refers to someone who has taken up arms against us on behalf of a foreign country in a combat zone; that the AUMF does authorize the government to detain ‘enemy combatants’ so construed; but that al-Marri does not satisfy this definition of ‘enemy combatant’:
“Al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world.”
Are they excluding any non-nation state actor from the protection of “enemy combatant?” No one from Al Qaeda is one, whether on US soil or elsewhere?
“Are they excluding any non-nation state actor from the protection of ‘enemy combatant?’ No one from Al Qaeda is one, whether on US soil or elsewhere?”
I may be being dumb, but doesn’t the listing of these categories that Al-Marri doesn’t fall into indicate that if he did fall into those categories, the decision might go the other way? Which would thus mean the answer to your query is “no”?
After the first two mentions of the Taliban, all the other categories can encompass members of al Qaeda, which would again indicate an answer of “no,” wouldn’t it? Or am I missing something obvious?
the two judges — motz and gregory — are clinton appointees. I suspect this was a case of the “lucky panel draw.” my guess is that it gets reversed en banc. the 4th circuit is, after all, terrible
publius: actually, I looked it up, and while Gregory was initially recess-appointed by Clinton, Bush gave him his permanent appointment.
(Yes, I’m a pedant; what can I say?)
jrudkis: I think that one of the Supreme Court cases — Hamdan? held that the fight against al Qaeda was not an international conflict (“international”, here, meaning: between nations, not: occurring in several countries; thus, the war in Iraq is international, despite having taken place in Iraq alone, but the fight against AQ is not, AQ not being a nation.) And this decision doesn’t take a position on whether or not this conflict is “international”, but notes that in non-international conflicts, there is no such category as “enemy combatant” in international law.
“Bush gave him his permanent appointment.”
Which also, of course, means that the Republican Congress gave him thumbs up by confirming him.
But, you know — we all know — traitors are everywhere.
don’t get me wrong – it’s still a good day (and a very good post). but i still would put gregory into the clinton camp. gregory was picked by clinton (presumably for certain ideological/political reasons). bush did give him the perm appointment but it was sort of a brief olive branch (there were a few others on hold) following bush v. gore as i recall.
it’s a unique example to be sure, but i’ll still call him a clinton judge.
Are they excluding any non-nation state actor from the protection of “enemy combatant?”
“Protection”???
Oops, spelled “Marri” as “Massi” above.
Btw, looked on the CNN “Law” page (not even the front page), and nothing about this decision. However, it seems that Paris Hilton will not appeal her detention.
Maybe I am missing something, but doesn’t that reopen the issue of whether Al Qaeda gets Geneva Convention protections at all?
Balkin also makes a very interesting point here, regarding the transfer to military custody that’s at issue:
And explains further.
Gary: linked to that in an update, but on reflection it’s good to have Marty Lederman’s point here in comments too.
jrudkis: I don’t think it does call Geneva protections into question. Common article 3, as I understand it, is supposed to be for everyone.
(Suddenly, I realize that I only remembered its being Common Article 3, not — say — Common Article 14, or Preferred Article 17 1/2. Uh oh …)
Sigh of relief!
I have to say, I wish Lederman weren’t calling torture “abusive interrogation.” It makes it sound like an NYPD Blue episode.
“Extreme sensory deprivation” as alleged by Marri is torture.
Judge Roger Gregory:
Bill Clinton’s presser on the recess appointment.
Republican Senate Policy Committee on Bush’s nomination of Judge Gregory:
Included is a brief bio (couple of sentences) of the judge along with the other 10 nominees made that day.
Among the ten included in that display of bipartisanship were Edith Brown Clement, John G. Roberts, Miguel A. Estrada, Priscilla Owen, Michael W. McConnell (say, how’d that work out?), among others. It was a memorable set of nominees; one can look back and consider what one might regard as the golden oldie classics of Bush conservativism. Gregory made a nice sweetener.
CharleyCarp on the LOLIS standard is also good, by the way.
He also mentions in a comment on an unrelated post that “This is a very big deal” and he’ll try to write on it tonight.
Orin Kerr thinks it will be reversed:
My prediction: I tend to doubt this decision will stand. My very tentative guess is that either the en banc Fourth Circuit or the Supreme Court will reverse, holding that the AUMF is broad enough to authorize an Al-Qaeda suspect like Al-Marri and therefore the detention is authorized by statute.
Interesting comment thread over there as well.
“Orin Kerr thinks it will be reversed”
Yes, so Anderson noted above; he also argued otherwise in the Kerr thread.
I won’t make any predictions, having expressed my worry; if Kennedy doesn’t meander to his dark side, and the decision is affirmed, I’ll be immensely glad and relieved, but I won’t count on it in advance.
The only lawmaker to vote against him was Sen. Trent Lott, a Mississippi Republican. His aides said that he always voted against recess appointees.
Hmmmm, have any of the Bush recess appointments come up to a vote?
Are they excluding any non-nation state actor from the protection of “enemy combatant?” No one from Al Qaeda is one, whether on US soil or elsewhere?
No. The opinion is limited to the following — citizens and resident aliens in the U.S. Those people cannot be diverted into military courts for criminal activity in the U.S.
You could set up a special terrorist’s court in the US, so long as it comported with basic constitutional due process requirements. But why bother?
The current Bush system is a dead ringer for lettres de cachet — arrest and detention without trial based solely on the word of the executive.
What you are saying is that a mere accusation by Bush is justification for indefinite arrest and detention without trial. The “enemy combatant” rhetoric is just a fig leaf for that reality.
It is a repellant concept, and screaming that someone is a terrorist is not grounds for legitimizing lawlessness.
dmbeaster: “What you are saying is that a mere accusation by Bush is justification for indefinite arrest and detention without trial.”
I totally missed jrudkis saying anything of the kind.
I did see jrudkis say “It certainly seems like the correct decision.”
“It is a repellant concept, and screaming that someone is a terrorist is not grounds for legitimizing lawlessness.”
Who in this thread has either been screaming, or saying that because someone is a terrorist is grounds for legitimizing lawlessness? Have I been missing comments?
The only lawmaker to vote against him was Sen. Trent Lott, a Mississippi Republican. His aides said that he always voted against recess appointees.
“I told you so!” chortles Lott.
“The Government offers nothing to indicate that Congress embarked on this strange course …” Elsewhere, the Court seems to take an even dimmer view of the government’s reasoning: “In view of the holdings in Hamdi and Padilla, we find it remarkable that the Government contends that they “compel the conclusion” that the President may detain al-Marri as an enemy combatant”; “The Government can so contend only by both ignoring the undisputed and relying on the inapposite”; etc.
For the non-lawyers out there, if any of the above quotes appeared in a order ruling against me, and I’d cry, for weeks and weeks. “Are you frackin’ serious” is one translation. Another is “get that weak s*** out of my courtroom” followed by the Dikembe Mutombo finger-wave.
Just reading it, I’m forced to make the “just saw something ugly, like a car wreck” face.
looks to me like one more example of this administration’s fundamental lack of seriousness about its alleged raison d’etre, the war on terror.
Actually, I think this more than demonstrates just how compromised the Justice Department is. They have no competence left, only Christianist ideologues from 4th tier schools who clearly have no idea what the hell they are doing. Not only has the compromise of the DoJ been directed toward bogus voter fraud issues, which are being tossed out of court, this politicization of the DoJ has left it incompetent to even proceed in a technically correct manner. They just don’t know what they’re doing and are simply relying on “national security” and unitary executive power as arguments.
Anyway, the scariest thing I read about the Al-Marri decision comes via Kevin Drum : a quote from the dissenting judge in the case:
…A dissenting judge in today’s decision, Henry E. Hudson, visiting from the Federal District Court for the Eastern District of Virginia, wrote that President Bush “had the authority to detain al-Marri as an enemy combatant or belligerent” because “he is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States.”
Is he indeed? And how does Judge Hudson know this? AFAIK, no case either against him, or in his defense, has ever been presented in a court of law (or anywhere else, apparently): does the good Judge know something we don’t? (or this info classified, as well??)
Scary, because while might expect this sort of absolutist nonsense from some blogger, or an opinion columnist looking to whip up ooga-booga-scary-terrorist panic among the public, one would have hoped that a Federal Judge would be just a little more, well, judicious in making blanket statements like this (still less inserting them into a legal opinion).
Gary:
No one is saying it here, and the “you” is the wrong pronoun in my post.
Jay C:
Is he indeed? And how does Judge Hudson know this?
In the opinion, he indicates that he got from the “unrebutted” declaration of someone named Jeffrey N. Rapp, Director, Joint Intelligence Task Force for Combatting Terrorism. Rapp is summarizing the alleged “evidence” — but he himself is not a witness. He apparently provides declarations in many of these cases.
From an amicus brief filed in the case Page 4, footnote 3 (pdf):
Rapp provides no basis for this claim, except that al-Marri’s computer
“contained a list of numerous favorite internet websites relating to computer
hacking” and files containing credit card numbers that did not belong to him. (JA 63-64) In his book Never Again, former Attorney General John Ashcroft explained that the Government’s claim was actually just “speculation” arising from its
discovery that al-Marri’s computer
Is he indeed? And how does Judge Hudson know this? AFAIK, no case either against him, or in his defense, has ever been presented in a court of law (or anywhere else, apparently): does the good Judge know something we don’t? (or this info classified, as well??)
Scary, because while might expect this sort of absolutist nonsense from some blogger, or an opinion columnist looking to whip up ooga-booga-scary-terrorist panic among the public, one would have hoped that a Federal Judge would be just a little more, well, judicious in making blanket statements like this (still less inserting them into a legal opinion).
Actually, Japanese Americans find this scarily familiar. And they know damn well that federal judges can be injudicious in these sort of things, particularly when administrations wave military necessity around…
In Iran, people can be jailed indefinitely and “harshly interrogated” because the Iranian government suspects they are members of organizations seeking to overthrow the Iranian government. No evidence needed.
It’ll be interesting to see whether the Supremes (or the 4th Circuit en banc) hold that the Iranian system of “justice” meets US Constitutional muster. Meanwhile, I take pride that there is still some decency in the US Justice system.
Re: the Geneva Conventions issue, what is supposed to happen is that anyone captured on a battlefield is treated as a POW until a tribunal has determined that for whatever reason he is not entitled to that treatment, then we go to article 3. The way I read that quote from the decision, there is no need for the tribunal. Essentially it has a starting point where someone in Al Qaeda has to be shown to get POW status, instead of the reverse, where the government has to show why he does not deserve it.
POW status is generally a good deal (not in this case where it occurred in the US and should be dealt with through the civilian process). It just seems odd to me that the decision seems to strip the protection without the finding.
jrudkis: They’re pretty careful, in the actual decision, to say distinguish the case they are actually talking about from actual battlefield cases. That’s sort of their point: that enemy combatant status makes sense and is fine when you’re actually talking about people picked up on a battlefield, and off the battlefield when you’re talking about someone who is affiliated with a hostile state’s military (e.g., spies, saboteurs); but that it’s not fine as applied to people who are just acting on behalf of some hostile organization and who are not on a battlefield.
I would think that, as far as AQ members on a battlefield, one would still have to ask whether they are or are not members of some hostile military (e.g., the Taliban) (pretending for the moment that Bush hadn’t ruled, inexplicably to me, that people fighting for the Taliban couldn’t have POW status.) But if it’s entirely a battle between AQ and our military, I’m not sure I see why AQ members should have the protection of the full Geneva Conventions, as opposed to CA 3.
If, in 2009, President Clinton declares Bush and Cheney to be “enemy combatants” and orders them to be detained in military custody indefinitely, will Judge Hudson and his ilk still think such decisions are unreviewable?
“…files containing credit card numbers that did not belong to him…. computer software programs frequently used by hackers…. This raised speculation among some officials that perhaps al-Marri planned to hack his way into the U.S. banking system to wipe out balances and otherwise wreak havoc with banking records and damage the U.S. economy.”
It takes a special kind of mind to look at a computer full of stolen credit card numbers and assume that the perpetrator is not trying to steal money for personal gain, or even trying to steal money to buy weapons for terrorists, but is in fact planning to single-handedly
cut down the Brooklyn bridgedamage the U.S. economy…Hilzoy,
I recall a lot of argument (not here) regarding POW status for AQ that were captured in Afghanistan. Article 4 has plenty of authorization for irregular fighters getting POW status subject to certain limitations such as wearing a mark/uniform, complying with the GC, etc. In some ways, it would have made detention a lot less problematic: keep them until hostilities end, just in much better conditions.
But the Taliban is a good example too, where it was not a recognized government by all but two countries, and was not complying with any of the requirements of the law of war. I think there is a fair academic argument to be made that they did not meet the requirements. It would still be better to have kept them as POW’s rather than have to go through a legal system.
I think the reason why they did not do that is because the standard of treatment for POWs is essentially the same as how we treat our own soldiers when it comes to accomdations, and there is significant freedom within the POW camps (if it was run by the rules in the GC) that they thought was inappropriate for these prisoners. So we got Guantanamo.
For some reason OW is not blocked by the army system (most blogs are on work computers, not as censorship but because they want us to work and not tie up the limited bandwidth). But the typepad key is blocked, so about half the time I can’t post here because the typing test pops up (which is why it sometimes takes a long time to reply).
Thanks for the information on what the actual opinion said. Now that I am off my work computer, I can actually get some time to read it.
Article 4 has plenty of authorization for irregular fighters getting POW status subject to certain limitations such as wearing a mark/uniform, complying with the GC, etc.
FWIW, these Article 4 requirements are for a military that is *not* the “official” military of the High Contracting Party in question; in the case of Afghanistan, that was de facto the Taliban.
You can’t hinge the issue on international recognition of the government; what if Saddam, before invading Kuwait, had announced that he didn’t recognize its government?
I just tried accessing this yesterday at a public machine at a hotel, and got blocked because this site used a forbidden word- “fisting”.
Strange. So had to wait until after I flew home to catch up on my news.