The Al-Marri Decision: A Victory for One Man, and for a Principle, But One With Limited or Nonexistent Practical Consequence

By JESSELYN RADACK

Monday, Jun. 18, 2007

On Monday, June 11, the U.S. Court of Appeals for the Fourth Circuit issued its decision in the case of Ali Saleh Kahlah al-Marri. The ruling was a blow to the Bush Administration. The Fourth Circuit is one the most conservative federal appeals courts in the country.

Yet the decision - written by Judge Diana Gribbon Motz - not only rejected the Administration's arguments, but suggested in its first paragraph that they went directly contrary to the Constitution, as interpreted through "two centuries of growth and struggle, peace and war…."

This strong language had been foreshadowed by Judge Motz's stinging dissent to the Fourth Circuit's denial of rehearing en banc order, following its since-vacated 2003 decision in Hamdi v. Rumsfeld. In her dissent, Judge Motz wrote: "I fear that [this court] may also have opened the door to the indefinite detention, without access to a lawyer or the courts, of any American citizen, even one captured on American soil, who the Executive designates an 'enemy combatant,' as long as the Executive asserts that the area in which the citizen was detained was an 'active combat zone,' and the detainee, deprived of access to the courts and counsel, cannot dispute this fact."

In this week's decision, the three-judge panel was unanimous that the jurisdiction-stripping section of the Military Commissions Act of 2006 (MCA) did not apply to al-Marri. Therefore, the court could properly entertain his petition.

In addition, the panel voted 2-1 in favor of al-Marri on the merits of his petition, holding that while the government is free to try al-Marri, it is not free to continue to detain him indefinitely without charge.

For civil libertarians, this should all be cause for celebration. But what will the practical effect of the decision be? The answer is: virtually nil. That's because it benefits only those who are both under the direction of an enemy nation and living legally in the U.S. - a class of persons one would hope, if Homeland Security is at all effective, would be a tiny one.

The Factual Background: One of Three U.S.-Held "Enemy Combatants"

Thus far, only three people have been held in the United States as "enemy combatants." One is al-Marri. Another is U.S. citizen Jose Padilla - initially touted as a "dirty bomb" conspirator, but currently on trial for a different charge. The third is Yaser Esam Hamdi, the Louisiana native whom the government first declared a serious threat to national security, and then set free on the condition that he move to Saudi Arabia and renounce his U.S. citizenship.

All three men were held for long periods of time in a South Carolina military brig, without charge and with spotty or no access to counsel. Al-Marri is still being held there, as he has been for the past four years. Padilla's case and Hamdi's case ended up in the Supreme Court. Al-Marri's, too, is likely to be heard by the Court.

Before his arrest, al-Marri, a Qatari national, was attending graduate school at Bradley University in Illinois. He was legally in the United States when he was detained. Originally, the government held him on a "material witness" warrant. Then it charged him with making false statements. Less than a month before his trial was scheduled to begin, however, the government dropped its charges against him and declared him an "enemy combatant."

Who Counts as an "Enemy Combatant" Under the MCA?

But who counts as an "enemy combatant" under the MCA? Both military judges and the recent Fourth Circuit decision have been careful about parsing the statute's language.

Last week, two military judges - Navy Capt. Keith Allred and Army Col. Peter Brownback - dismissed charges against two Guantánamo detainees, Omar Khadr of Canada, and Salim Hamdan of Yemen, who had been set to be tried before military commissions. The reasoning was that the men were just garden-variety "enemy combatants," not "alien unlawful enemy combatants" as required by the MCA.

(Readers may remember Hamdan as the victor in a Supreme Court decision issued last June, and wonder why he was before a military commission in the first place. The answer is that while the Court held that the President could not try detainees by military commission without Congressional approval, Congress gave that very approval in the MCA.)

Meanwhile, the Fourth Circuit panel held - as noted above - that al-Marri did not fall within the section of the MCA that purports to strip courts of jurisdiction to hear habeas corpus petitions from "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 who is awaiting such determination."

The Fourth Circuit held that for a detainee to fit this description, a two-step process must occur. First, an initial decision must be made to detain the alien. That occurred in al-Marri's case when President Bush issued a 2003 order placing him in military custody.

Second, there must be a determination "by the United States" that the designation was proper - for example, a determination by the Combatant Status Review Tribunals (CSRTs) used on Guantánamo Bay.

There was no CSRT determination in al-Marri's case, since he was detained in the U.S. Moreover, the Fourth Circuit noted, the MCA's legislative history makes plain that it is a CSRT decision that is required, and that the MCA was not intended to apply to persons captured in the U.S.

Who else might benefit from this holding? Potentially, no one - as I will explain in the next section. While there may well be other persons captured in the U.S. in war-on-terror-related investigations, those persons will likely not come within this precedent.

Why No One Else Is Likely to Benefit

The question of who can be deemed an "enemy combatant" remains a troubled and troubling one.

The Supreme Court's Hamdi decision and Padilla decision both looked to law-of-war principles, resting "enemy combatant" status upon affiliation with the military arm of an enemy nation. Thus, both upheld the President's authority pursuant to his 2001 Authorization for Use of Military Force (AUMF) to detain as enemy combatants individuals who affiliated with and fought on behalf of Taliban government forces, against the armed forces of the United States and its allies, on the battlefield in Afghanistan.

But the Fourth Circuit's al-Marri decision looks not only to law-of-war principles, but also to treaty obligations under the Hague and Geneva Conventions and related principles of customary international law. The opinion thus draws a line between "combatants" (members of a nation's military, militia, or other armed forces, and those who fight alongside them) and "civilians" (all other persons). And it notes that al-Marri's detention was neither the "classic wartime detention" the government claimed had rendered Hamdi an enemy combatant, nor the "classic battlefield detention" the government claimed had rendered Padilla an enemy combatant.

Indeed, unlike Hamdi and Padilla, the court explained "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 been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world."

Hamdi was claimed to have fought with the Taliban in Afghanistan, and was first detained at Guantánamo before his transfer to military prison. In al-Marri, the government argued that Padilla was an enemy combatant because he, like Hamdi, "engaged in armed conflict" alongside the Taliban "against our forces in Afghanistan."

This point, however, may leave readers scratching their heads - if they recall that the government's allegations against Padilla in earlier stages of that case mirrored its allegations against al-Marri here: that Padilla had associated with al Qaeda and engaged in conduct in preparation for acts of terrorism. Indeed, the Fourth Circuit's own Judge Wilkinson, in his concurrence to the denial of rehearing en banc in the Hamdi case, argued that "[t]o compare [Hamdi's] battlefield capture to the domestic arrest in Padilla . . . is to compare apples and oranges."

The government's response is that Judge Wilkinson's observation came before the Government had proffered any evidence that Padilla had carried arms alongside the Taliban against U.S. armed forces during the conflict in Afghanistan. And in al-Marri, the Fourth Circuit panel apparently accepted the government's argument - perhaps because it allowed the panel to bring principled reasoning to the question of who receives the "enemy combatant" designation: only those who take up arms against the U.S. on the battlefield.

It's too bad the government will appeal the decision, first by requesting en banc review in the Fourth Circuit, and if the Fourth Circuit does not reverse, then to the Supreme Court. Luckily, the Supreme Court has ruled against the Administration in all enemy combatant cases.


Jesselyn Radack is the author of The Canary in the Coalmine: Blowing the Whistle in the Case of "American Taliban" John Walker Lindh, available at www.patriotictruthteller.net

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