4th Circuit Upholds Military Detentions, But Not Unchecked Executive Power

In a 216 page opinion (pdf) written by seven judges, the 4th Circuit Court of Appeals today affirmed President Bush's ability to indefinitely hold someone captured on American soil as an enemy combatant, but said his executive power is not unlimited and those held must have the right to challenge their confinement.

President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.

But a different 5-to-4 majority of the court, the United States Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second, overlapping majority ruled.


Mr. al-Marri, a citizen of Qatar and legal U.S. resident, was arrested [at his home]in Peoria, Illinois, in 2001 as a material witness in the FBI's investigation of 9/11. In 2002, he was charged with credit card fraud and other criminal offenses. Shortly before his criminal trial commenced in June 2003, the President declared him an "enemy combatant" and moved him to a Navy Brig in South Carolina, where the government has subjected him to torture and other cruel treatment. Five years later, Mr. al-Marri still remains in solitary confinement without charge.

Question Presented – Does the President have legal authority to detain a legal resident arrested in the United States without charge by declaring him an "enemy combatant"? This case challenges the President’s assertion of unchecked executive detention power over all individuals in the United States.

Shorter facts version: al-Marri, a legal resident of the U.S. is arrested at his home in Peoria, Ill and held for 5 years as an enemy combatant based on second- and third-hand allegations that he came to the U.S. to be a sleeper agent for al-Qaeda.

Although Mr. al-Marri was arrested at his home in the middle of the United States, the President claims the power to hold him indefinitely as an “enemy combatant” based upon second- and third-hand allegations that he is an “al Qaeda sleeper agent.” No evidence was presented to sustain these allegations, many of which appear to have been gained through torture. Further, the President asserted that the Military Commissions Act of 2006 strips the federal courts of their historic habeas corpus review over his challenge to his detention. If so, any of the millions of immigrants in the United States can be swept off the streets and locked in a military jail without access to the courts.

Mr. al-Marri’s case challenged the President’s assertion of unchecked executive detention power over all individuals in the United States. In the Administration’s view, the President has the authority to arrest and detain individuals without charge, without due process, and without meaningful judicial review. Congress, however, has not authorized such unchecked executive detention authority and the Constitution squarely prohibits it.

More from the New York Times article on today's decision:

In the conclusion of his long opinion, Judge Wilkinson said terrorism cases present courts with special challenges.

“We may never know,” he said, “whether we have struck the proper balance between liberty and security, because we do not know every action the executive is taking and we do not know every threat global terror networks have in store.”

al-Marri is represented by the Brennan Center for Justice. You can access their page with documents and details about his case here.

TalkLeft reader and commenter Scribe points out in an e-mail to me footnote 14 on page 27:

At oral argument before the en banc court, however, the Government finally acknowledged that an alien legally resident in the United States, like al-Marri, has the same Fifth Amendment due process rights as an American citizen. For this reason, the Government had to concede that if al-Marri can be detained as an enemy combatant, then the Government can also detain any American citizen on the same showing and through the same process.

Scribe adds by way of commentary:

The short end of it is - if it's true al-Marri's an "enemy combatant", then the Executive was allowed to use the military to seize and hold him. But, al-Marri was not afforded proper protection and opportunity to challenge his confinement.

Apparently, a lot of vigorous vehemence from the wingers on the court, in the vein of the dissenting losers in Boumedienne.

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    The chilling part from the footnote is (5.00 / 2) (#2)
    by scribe on Tue Jul 15, 2008 at 05:42:17 PM EST
    that the admission by the government noted in it, cuts two ways.

    The one is obvious:  they have to give al-Marri the same due process they give a citizen.

    The other is nefarious:  If they can, within the law as defined by the Circuit, hold al-Marri in military custody on such slim pickings of torture-derived evidence, then they can do it to any citizen, too.

    That is why the one judge who flipped to make the two 5-4 majorities*, Judge Traxler, will, if his weakening of habeas holds up on Supreme Court review (which al-Marri's counsel says he will seek), go down in history as one of the most ignominious characters in Anglo-american jurisprudence.

    Not for nothing they are welcoming this opinion at DoJ.

    *  When there are different majorities on different parts of a decision, the judges who are part of all the majorities are seen as having written the controlling opinion.  Since Four judges came down on each side of each of the two questions and Traxler switched sides, forming two different majorities, Traxler's opinion is considered to control.

    frightening (5.00 / 1) (#15)
    by txpublicdefender on Tue Jul 15, 2008 at 06:16:26 PM EST
    Decisions like this are exactly the reason why the Dems need to hold firm on Bush's 4th Circuit nominees.  This court is already way too conservative.  It does not surprise me that the 4th Circuit ruled this way.  So much for the 4th, 5th, and 6th Amendments.  If an intelligence official says that so and so said that you were supporting al-Qaeda, then, off you go!

    Enemy combatants (none / 0) (#1)
    by MKS on Tue Jul 15, 2008 at 05:39:29 PM EST
    here in the U.S. can be indefinitely held?  I thought enemy combatants were those caught in Iraq or Afghanistan....

    And, so the next step, is...U.S. citizens?....  At least, one can challenge the confinement.  

    Enemy combatants (none / 0) (#3)
    by sarcastic unnamed one on Tue Jul 15, 2008 at 05:44:10 PM EST
    An enemy combatant has been defined as "an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This included any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."
    It would appear that US citizens can be enemy combatants.

    So, then, (none / 0) (#4)
    by MKS on Tue Jul 15, 2008 at 05:49:00 PM EST
    a U.S. citizen can be held indefinitely as an enemy combatant....even though he or she never left the U.S.?

    That does tend to do away with Due Process, the right to speedy trial, the right to jury trial, the right to confront witnesses....


    I don't know the answer to that. (none / 0) (#6)
    by sarcastic unnamed one on Tue Jul 15, 2008 at 05:52:47 PM EST
    The answer should be "no." (none / 0) (#8)
    by MKS on Tue Jul 15, 2008 at 05:56:01 PM EST
    Yes. (none / 0) (#9)
    by scribe on Tue Jul 15, 2008 at 05:56:34 PM EST
    is the answer to your question.

    It is even worse than I had thought (none / 0) (#11)
    by MKS on Tue Jul 15, 2008 at 06:01:33 PM EST
    I had just tuned it (all the habeas corpus and related litigation) out, knowing it was bad, but this (apparently a good decision) is actually quite unnerving....

    "Belligerant act" (none / 0) (#7)
    by MKS on Tue Jul 15, 2008 at 05:55:16 PM EST
    against "coalition partners" can get a U.S. citizen thrown in the cooler indefinitely?  

    You could throw a lot of U.S. citizens in jail using a definition like that.


    an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces

    "supporting...associated forces" (none / 0) (#12)
    by MKS on Tue Jul 15, 2008 at 06:05:23 PM EST
    You're not making me feel any better....

    Another definition that could put a lot of U.S. citizens in jail, or perhaps more nefariously, just a selected few....who were deemed nuisances....Plant a little evidence.  Done.


    Well, if "Plant a little evidence" (none / 0) (#13)
    by sarcastic unnamed one on Tue Jul 15, 2008 at 06:12:00 PM EST
    is your measure of our legal system then there can be no law that doesn't make you uncomfortable. Which may not be an unreasonable position to take...

    Since it appears that (none / 0) (#14)
    by MKS on Tue Jul 15, 2008 at 06:15:59 PM EST
    the  enemy combatant doesn't get full Due Process rights, it would be easier to  manufacture a case...

    The definition of enemy combatant is broad and the scope of judicial review is narrow.....Not a good place to be...


    Go back and look at the pile of crap (none / 0) (#16)
    by scribe on Tue Jul 15, 2008 at 06:19:27 PM EST
    they used in the Uighur case (Parhat) to justify holding him captive under that "supporting" or "lending support".  The guy slept in a camp "run" by someone who'd met a Taliban guy once or twice.  Allegedly.  That, in short, was what got Parhat locked in Gitmo since 2002.

    And, if you read today's opinion further, you'll see all the arguments the government made - e.g., that material support can come about when one gives to a charity not knowing a tiny fraction of its money goes to an organization or guy designated as a bad actor - being made to support the AUMF as the basis for using the military to lock people away.


    Well, I will now go home and (none / 0) (#17)
    by MKS on Tue Jul 15, 2008 at 06:22:53 PM EST
    burn 1984 in effigy.  It sounds as if that will do as much good as anything else....

    Has the ABA taken a stand on any of this?


    Jose Padilla (none / 0) (#20)
    by txpublicdefender on Wed Jul 16, 2008 at 12:59:58 PM EST
    The government held Jose Padilla for years as an enemy combatant and he was a US citizen, scooped up in the U.S., albeit when he was returning from an overseas visit.

    Footnote 14 is what lots of us have been saying (none / 0) (#5)
    by jawbone on Tue Jul 15, 2008 at 05:50:11 PM EST
    since the Unitary Executive declared it was, well, right in everything it did bcz everything it did was, by the nature of the Unitary Executive, right.

    I think I'm sort of happy with this decision--but I do worry about saying the military can detain anyone whom the UE declares to be an "enemy combatant." Then,again, doe the UE even need to declare someone an enemy combatant to seize them and place them in military detention? That way lies detention camps on a mass scale, no?

    Why is that necessary on American soil, when we are not in a state of emergency, and the courts and police powers are intact??

    I do not understand the first part of the ruling, but, thank the FSM for the second.

    Still, scary times, dicey decisions.

    (From a lay person's pov, NPR did a good job of covering this, including the import of Footnote 14, on tonight's report. Credit where credit is due. What think all you legal beagles?)


    okay, (none / 0) (#18)
    by cpinva on Tue Jul 15, 2008 at 07:34:08 PM EST
    when is the coronation scheduled, and who'll be placing the crown on king george I, of the United States' head? i assume this is a "divine right" monarchy, predicated on an all-powerful king.

    the 4th circuit (right down the street from my office) has historically acted as though the revolution never occured, so this decision comes as no great surprise.

    A ruling like that would seem to mean (none / 0) (#19)
    by halstoon on Tue Jul 15, 2008 at 08:40:47 PM EST
    that there is no need for another Alien & Sedition Act. Instead, the executive branch can simply scoop you up, never charge you, and keep you indefinitely. What I don't understand--and I'm not going to search through a 200+ page document--is at what point during the indefinite, uncharged detention your right to habeas corpus kicks in?

    Can they hold you for five years before a hearing? Ten years?

    In other words, the affirmation of the enemy combatant designation would seem to negate the habeas corpus right. Right?