*1
just
left his
four
house with
ounces of
stances leads us to conclude that the taxi
driving
a
(i.e.,
heroin
was
small silver for- driver was an innominate
unidenti-
fied)
car
eign
bearing
particular
a
license num-
informant who could be found if his
particular
supported
ber
a
direction
a
tip proved false rather than an anonymous
Terry stop,
though police
unidentifiable)
even
not spot
(ie.,
did
tipster who could lead
the car until four hours later at a location the police astray without fear of accounta-
approximately eight blocks from the inter-
Valentine,
bility.
355;
232 F.3d at
caller).
by
section identified
Brown,
United States v.
496 F.3d
(10th Cir.2007) (“An
1075-76
unnamed in-
sure,
To be
not all of the indicia of
dividual
divulges
who
enough distinguish-
reliability we
pres-
identified Brown are
ing characteristics
to limit
possible
his
Nevertheless,
ent
although
here.
an anon-
identity to only a handful of people may be
ymous tip
any
without
indicia
reliability
of
nameless, but he is capable
being
of
identi-
J.L.,
justify
Terry
cannot
a
stop, see
fied
anonymous.
and thus is not
For ex-
U.S. at
tip
need
if
ample,
tipster
says ... T wish to
not bear all of
the indicia—or even
anonymous,
remain
but I have a blue truck
particular
supply
indicium—to
reasonable
and work at
Burger
King
particu-
on a
Robertson,
suspicion. See
F.3d
avenue,’
lar
person may
provided
have
(citation omitted).
Indeed,
deficiency
“a
sufficient clues for an intrepid officer to
for,
one
compensated
[factor]
him”).
find and identify
determining
reliability
the overall
a tip,
by
other,
a strong showing as to
by
Accordingly, we hold that
the officers
Gates,
some other indicia of reliability.”
had reasonable
suspicion
articulable
suffi-
information can particularized demonstrate
knowledge, aspects other tip can particularized
reflect knowledge as well.”
Nelson,
account of the crime he had witnessed Petitioner-Appellant, earlier, seconds gave a clear account of the weapon Torres, and the vehicle used specified his own occupation, the kind
and color of the car he driving, Berman, Mark A. as next the name of employer. veracity friend, Petitioner, and detail of this information were en- v. hanced the fact that the informant con- Torres, tinued to follow providing PUCCIARELLI, a stream Commander John U.S.N., information meant to Brig., assist officers in Consolidated Naval Thus, the field. totality Respondent-Appellee. the circum- *2 War; Law of Profes Specialists in the Procedure; of Evidence
sors Criminal Scholars States
United
Historians; Justice Former Senior Officials; for Na
Department Center Studies; Security American-
tional Committee;
Arab Anti-Discrimination Center; Na Justice
Asian-American Center; Hu Immigrant Justice
tional Rights First; Human Rights
man
Watch; Professors of Constitutional Jurisdiction; Na And Federal
Law De Criminal Association of
tional Zone; Lawyers; Free Mus Hate
fense Advocates; Organization
lim World USA; M. Rights David Human
for General; J.
Brahms, Brigadier Donald Admiral;
Guter, Merrill A. Rear General, Sup
McPeak, Amici Retired Appellant.
porting
No. 06-7427. Appeals, States Court
United
Fourth Circuit.
Argued: 2007. Oct. July
Decided: Hafetz, Bren- Jonathan L.
ARGUED: Justice, York Uni- nan for New Center Law, York, New New versity School of York, Gregory George Appellant. for General, Garre, Office Deputy Solicitor General, United States De- the Solicitor DC, Justice, Washington, for partment BRIEF: Andrew J. Sav- Appellee. ON P.A., III, Savage, 'Charles- age, Savage & Carolina; Lust- ton, Lawrence S. South Gibbons, Berman, Del A. berg, Mark Vecchione, P.C., Center, Dolan, Supporting Amicus Deo, Griffinger Appel- & Justice Shamsi, Newark, Jersey, Appellant. Rona, New lant. Hina Human Gabor Clement, General, Regi- Paul D. Solicitor First, York, York; Rights New New Jen- Attorney, Lloyd, I. United States nald Daskal, Watch, Rights nifer Human *3 Carolina, Miller, Eric D. District South DC; Washington, Donald Francis Dono- General, Kevin Assistant to the Solicitor van, Amirfar, M. Tali Catherine Farimah McDonald, At- Assistant United States F. Farhadian, L.L.P., & Plimpton, Debevoise Evans, United States torney, Claire J. York, York, Rights New New for Human Division, Justice, Criminal Department Watch, Rights First and Human Amici DC, Section, Washington, for Appellate Supporting Appellant. Gerald L. Neu- Stanford, Martinez, Jenny Appellee. S. man, Massachusetts; Cambridge, Harold Danner, California; Allison Marston Koh, Haven, Connecticut; Hongju New Nashville, Tennessee; Wag- Valerie M. Cleveland, H. Cambridge, Sarah Massa- Dechert, L.L.P., ner, Epstein, Daniel B. chusetts; Sanner, Margaret L. Reed Alto, California, Specialists Palo for Smith, L.L.P., Richmond, Virginia, for War, Supporting Ap- the Law of Amicus Professors of Constitutional Law and Freiman, M. National pellant. Jonathan Jurisdiction, Supporting Federal Amicus Project of the Allard K. Low- Litigation Finn, Appellant. Timothy J. Julia E. Rights enstein International Human Clin- Stern, McEvoy, Day, Katherine E. Jones ic, School, Haven, New Con- Yale Law DC, Washington, for National Association necticut, Professors of Evidence and for Lawyers, of Criminal Defense Amicus Procedure, Supporting Appellant. Amicus Supporting Appellant. Narayan, Shankar Metcalf, Dana, Hope Wiggin R. Zone, Seattle, Washington, Hate Free for Connecticut, L.L.P., Haven, New for Zone, Supporting Ap- Hate Free Amicus States Criminal Scholars and His- United Khera, pellant; Farhana Advo- Muslim torians, Supporting Appellant. Amicus cates, Kensington, Maryland, for Muslim Schroeder, Isaac, Gary A. James C. Advocates, Supporting Appellant. Amicus Brown, Lewis, Mayer, Heather M. Rowe Sklar, Director, Joseph Executive Morton Maw, L.L.P., Illinois, Chicago, & for For- Intern, Husty, Legal Organization World Officials, Department mer Senior Justice DC, USA, Rights Washington, for Human Supporting Appellant. Amicus Kate Mar- with the assistance of Law Student Con- tin, Onek, Joseph Center for National Se- (U. Keyes tributors: Melissa of CA Studies, DC, Paul curity Washington, School), Wait, Aar- Law Charles Hastings Smith, Block, Block, Joshua A. Jenner & Clark-Rizzio, Scott, Binish Kennon York, L.L.P., York, New New for Center Hasan, Tennyson, Maginley Maria Olivia Studies, Security for National Amicus (New York Angelson and Meredith Univ. Bashir, Appellant; Lema Supporting Seh.), Moshenberg, Law Simon Jesse American-Arab Anti-Discrimination Com- Townsend, Hays, Stephanie Sameer mittee, DC, Washington, for American- (Yale Law Ahmed and Nicholas Pederson Committee, Arab Anti-Discrimination (B.C. School), School), Law Matt Sadler Aimee J. Supporting Appellant; Amicus Rights Human Organization for for World Baldillo, Center, Asian American Justice USA, Supporting Appellant. Amicus DC, Washington, for Asian-American Remes, Enrique Armijo, David H. John Center, Supporting Appel- Amicus Justice L.L.P., Covington Burling, & Coyle, F. lant; Mary Meg McCarthy, Magner, Tara Brahms, DC, M. Center, Washington, for David Immigrant National Justice Chi- Guter, General, Illinois, Donald J. Rear Immigrant Brigadier cago, National Ail-Marri v. cease. See McPeak, military detention Retired Admiral, A. Merrill Cir.2007). (4th Wright, 487 F.3d General, Appellant. Supporting Amici court vacated Subsequently, WILLIAMS, Judge, Chief Before the case en banc. considered judgment and MICHAEL, NIEMEYER, WILKINSON, issues present principal two parties GREGORY, TRAXLER, KING, MOTZ, (1) assuming consideration: for our DUNCAN, Judges. Circuit about allegations al-Marri Government’s true, Congress empow are whether by published and remanded Reversed to detain al-Marri as ered President Judge MOTZ opinion. PER CURIAM (2) combatant; assuming Con concurring opinion wrote *4 de MICHAEL, the President to empowered has Judges gress in judgment, which enemy pro as an combatant KING, joined. Judge tain al-Marri and GREGORY concurring allegations against in opinion an vided the wrote Government’s TRAXLER true, Judge al-Marri has been in Part II of which him are whether judgment, his joined. Judge process to challenge GREGORY afforded sufficient NIEMEYER in concurring enemy combatant.* opinion designation an as an wrote Judge WILLIAMS judgment. Chief argu- and Having the briefs considered part in and opinion concurring an wrote court parties, the en banc ments of the Judge in dissenting part, in which (1) (Chief by a 5 to 4 vote now holds: Judge joined. WILKINSON DUNCAN Wilkinson, Judge Judges and Williams concurring part in and opinion an wrote Traxler, voting in Niemeyer, and Duncan Judge in NIEMEYER dissenting part. Michael, Motz, affirmative; Judges in concurring opinion an wrote negative), in the King, Gregory voting and in part dissenting part. and judgment that, allegations if the about Government’s opinion wrote an DUNCAN Judge true, Congress empow- al-Marri are dissenting part. concurring part him an ered the to detain President in this participate did not Judge SHEDD (2) combatant; enemy 4 vote case. Motz, Traxler, Michael, King, and (Judges affirmative; Chief Gregory voting OPINION Wilkinson, Judges Judge Williams PER CURIAM: nega- Niemeyer, voting and Duncan tive), that, empow- assuming Congress has petition filed a Kahlah al-Marri Ali Saleh an to detain al-Marri as challenging his ered the President corpus for writ of habeas provided the Govern- combatant. military detention as true, relief, him are al- al- allegations court denied all ment’s After the district pro- has not been afforded sufficient appeal. panel A Marri noted this divided Marri designation as challenge cess to reversed the judgment of court this al-Marri’s combatant. court and ordered that district * case, sec- Court declared deny to dismiss in this We the Government’s motion jurisdiction. of The Govern- case for lack unconstitutional. See tion 7 the MCA Military Com- relied on section 7 of the Bush,-U.S.-, ment v. Boumediene 2006, (MCA) 109- Act Pub.L. No. missions 41, 2229, --, slip op. at 64 171 L.Ed.2d the De- 120 Stat. which amended 12, 2008). (June Government now con- (DTA) Pub.L. Act tainee Treatment jurisdiction over cedes that we have al-Mar- 1005(e)(1), § Stat. No. petition. ri's habeas argument we heard en After banc 2741-42. Accordingly, judgment order, of the district issued in June of al-Marri court is reversed and remanded for further has been imprisoned without charge in a proceedings consistent with opinions military jail in South Carolina. Al-Marri that follow. petitions for a writ of corpus habeas secure his release from military imprison-
REVERSED AND REMANDED ment. The Government defends this de- MOTZ, DIANA GRIBBON Circuit tention, asserting that al-Marri associated Judge, concurring the judgment: Qaeda with al and “prepar[ed] for acts of international terrorism.” It maintains that
For over two growth centuries of the President has both statutory and in- struggle, war, peace and the Constitution herent constitutional authority subject has secured our freedom through guar- indefinite detention al-Marri that, antee States, the United no one anyone else who associates with Qaeda al deprived liberty will without due and “prepare[s]” for such acts. If law. years Yet more than five accurately Government ago, military describes al-Mar- authorities seized Ali Saleh conduct, ri’s he has al-Marri, grave Kahlah committed lawfully an alien residing *5 crimes, but a majority of the en banc here. He has been held court military the holds, did, the panel ever judgment since—without charge criminal or of the district court process. held, He has so must be been reversed.1 despite the fact that he initially taken from his We grant would also al-Marri habeas in Peoria, Illinois, home by civilian authori- relief. Even assuming the truth of the ties and imprisoned awaiting trial pur- allegations, Government’s they provide no ported domestic crimes. He has been so basis for treating al-Marri as an enemy held, although the Government has never or as anything other than a alleged that he is any a member of nation’s civilian. This does not al-Marri, mean that military, has fought alongside any nation’s similarly citizens, situated American forces, armed or has against borne arms would have to be freed. Like others ac- the United anywhere States in the world. cused of terrorist activity country, this held, And he has been so without acknowl- from the Oklahoma City bombers to the edgment of the protection afforded convicted September 11th conspirator, Constitution, solely because the Executive they could be tried on criminal charges believes that his indefinite military deten- and, convicted, if punished severely. But tion—or even the indefinite military deten- the Government would able to sub- tion of a similarly situated citi- American ject them to military indefinite detention. proper. zen—is
While criminal proceedings were under- regret, With recognize we that this view way al-Marri, against the President or- does a majority not command of the court. dered military to seize and detain him colleagues Our hold that the President can indefinitely as an enemy combatant. Since order military to seize from his home above, 1. As noted en banc court—like the stantial applying additions and revisions in- panel concluded judgment tervening Supreme —has precedent Court and re- the district denying court Ali Saleh Kahlah al- sponding arguments to the rehearing Marri habeas relief must be reversed. The See, colleagues. Government and of our opinion incorporates that follows of the some 2, 221, e.g., at 217-19 & n. 223-24 & n. infra rationale originally contained in the va- now 9-10, 232-33, 233-35, 226-27 & nn. 235- panel opinion, cated Wright, Al-Marri v. 18-25, 247, 248-50, 47 & nn. 252-54. (4th Cir.2007). F.3d 160 It also includes sub- following U.S.C.A. note 115 Stat. in this coun anyone indefinitely detain and al- (West 2003), not authorized § citizen—even an American try including — evidentiary detention, the Marri’s never affiliated he has though Traxler by Judge na alongside envisioned nation, fought proceedings against on the Gov- forces, arms place or borne the burden at least tion’s armed will the world. anywhere showing an initial States make the United ernment gen a and that in broad agree avail- protections cannot We due normal “the statute, silently authorized Congress country” imprac- are eral this to all within able all vastly exceeds so power that detention in al-Marri’s unduly burdensome tical or existing per law No bounds. traditional hearsay declaration and that case of execu extraordinary exercise mits this only evi- the Government’s constitutes national times of Even power.2 tive reli- is “the most al-Marri dence law, lest this must follow we peril, supporting evidence” able available For laws. a nation of to be country cease at 273-74. Post allegations. Government’s reconciled; security can be “[liberty conclusions, note we reaching our In are reconciled they system and in our dissenting respect our that we the outset Boum law.” framework within contrary views— strongly held colleagues’ -, Bush, —U.S. v. ediene advance they with which the rhetoric (2008). 2229, 2278, 171 L.Ed.2d passion— But rhetoric those views. does disposition preferred our Although substitute how sincere—cannot matter no court, a majority not command Constitution application for faithful judg- to affirm majority does refuse legal principles. controlling give To effect court. the district ment of *6 Finding scant fail. dissents respect, join majority, we that of to the conclusion hard- positions, their our for legal support closest to on terms “ordering in remand in- to resort dissenting colleagues working v. Hamdi prefer. would those” we enemy combat- venting definitions new 507, 553, 124 S.Ct. Rumsfeld, 542 differing of their only have none ant. Not J., (2004) (Souter, 578 2633, L.Ed.2d by Congress adopted been definitions and dissenting part, in part, concurring Government, defi- these by advocated also judgment); see concurring princi- contrary to law-of-war nitions are 134, States, 91, v. United Screws Supreme Court. by long followed ples (Rut- (1945) 1031, 89 L.Ed. 65 S.Ct. supporting authority The absence result). In this J., in the concurring ledge, positions unsurprisingly divergent of these join judg- in a we case, means that inability agree colleagues’ to in our results remanding for eviden- reversing and ment to power of the Executive’s scope on al- whether determine tiary to proceedings reviewing for correct detain or the enemy combatant actually is an Marri Thus, we do not while detentions. such Although military detention. to subject so good faith and good the dissenters’ doubt Authoriza- Congress believe we approaches. will, reject (AUMF), we their must Military Force tion Use 17, to do so here. we n. refuse repeatedly insists of the dissenters One empowered the not Congress has Because Constitution really suggesting that the we are Unit- See, subject within the to civilians e.g., President of al-Marri. prohibits detention ' detention, we military 312-13, to indefinite ed States n. post at not, not, such whether do determine J., part and need (Wilkinson, concurring in authority Consti- violate the fact, grant would explicit- panel dissenting part). Al-Marri, hold, tution. 487 F.3d see ly to so refused recently As the Court remind- New York dismissed the charges against us, “[sjecurity ... in fidelity ed subsists al-Marri for lack of venue. principles. among freedom’s first Chief The Government then returned al-Marri arbitrary these are freedom from and un- Peoria, and he was re-indicted in the personal liberty lawful restraint and the Central District of Illinois on the same by that is secured adherence to sepa- counts, seven again which he pleaded Boumediene, powers.” ration of guilty. The district July court set a President, at 2277. To allow the 21, 2003, trial date. Friday, On June authorization, congressional absence of 2003, the court scheduled a hearing pre- against exercise force civilians in motions, trial including a motion to sup- country is to abandon principles. these press evidence al-Marri assertedly them,
Without neither freedom nor securi- obtained torture. On the following ty can survive. Monday, June before that hearing held, could be the Government moved ex I. parte to dismiss the indictment based on Al-Marri, Qatar, lawfully citizen of signed order that morning by the Presi- entered the United States with his wife dent. September 10, 2001, and children on pursue a master’s degree Bradley Uni- order, In the President George W. Bush Peoria, Illinois, versity in where he had stated that he “DETE RMINE [D] for the obtained a degree bachelor’s in 1991. The United States of America that” al-Marri: following day, hijacked terrorists four com- (1) (2) combatant; is an enemy closely mercial airliners and used kill them to (3) Qaeda; associated with al “engaged in inflict grievous injury on thousands of conduct that constituted hostile and war- later, Americans. Three months on De- acts, like including conduct in preparation 12, 2001, cember FBI agents al- arrested (4) for acts of terrorism”; international Marri at his home Peoria as a material “possesses intelligence ... ... would witness investigation Government’s aid U.S. prevent efforts to attacks al *7 September 11th attacks. Al-Marri (5) Qaeda”; and “represents a continuing, was imprisoned jails in civilian in Peoria present, grave and danger to the national and City. then New York security of the United States.” The Presi- 2002, In February charged al-Marri was dent determined that al-Marri’s detention in the Southern District of New York with military “necessary was prevent possession of unauthorized or counter- Qaeda” him from aiding al and thus or- feit credit card numbers with the intent to Attorney dered the General to surrender year later, 2003, A defraud. in January he Secretary al-Marri to the of Defense and charged second, was in a six-count indict- Secretary further directed the of Defense ment with two making counts of a false to “detain him an enemy combatant.” FBI, statement to the three counts of The federal district court Illinois making a false appli- statement on a bank granted cation, the Government’s motion to dis- and one count using of another miss the criminal person’s against indictment al- identification for purpose Marri. influencing the action of a accordance with the federally in- President’s order, sured financial institution. Al-Marri al-Marri was then transferred to pleaded guilty military not to all of charges. custody brought these and to the Naval 2003, In May a federal district court in Brig Consolidated in South Carolina. 220 (3) 1998; in the summer and (that tween 1996 is, years) five for that time
Since
Bin
to Osama
Laden
2001,
introduced
was
as an
held al-Marri
military has
(4)
Muhammed;
at that
Shaykh
by Khalid
and without
combatant,
charge
without
time,
“martyr
for a
mission”
volunteered
confinement will
indication when
any
(5)
Qaeda;
was ordered
of al
on behalf
months of his
first sixteen
For the
end.
sometime before
the United States
confinement,
did enter
Government
11, 2001,
“sleeper
as a
to serve
September
any communication
al-Marri
permit
and
activities
to facilitate terrorist
world,
agent”
including his attor-
the outside
with
country’s financial
disrupting this
explore
wife,
alleg-
He
his children.
and
neys,
(6)
hacking;
computer
necessities,
through
system
denied basic
that he was
es
terrorist
met with
summer of
creating
measures
through
interrogated
al-Hawsawi,
Ahmed
who
threat-
financier Mustafa
and
sensory deprivation,
extreme
money, including funds
al-Marri
gave
action
A
civil
pending
with violence.
ened
(7)
infor-
technical
gathered
“inhuman,
buy laptop;
degrading,” and
challenges
chemicals on his
poisonous
mation about
his confinement.
conditions of
“abusive”
(8)
efforts to obtain
Rumsfeld,
laptop;
undertook
Al-Marri v.
Complaint at
identification,
cards,
(D.S.C.
credit
and bank-
Aug.
false
2:05-cv-02259-HFFRSC
No.
information,
including stolen credit
2005).
ing
(9)
numbers;
communicated with
card
8, 2003,
for al-Marri
counsel
July
On
terrorists,
including
Shaykh
Khalid
known
(because it was
on his behalf
petitioned
al-Hawsawi, by phone and
Muhammed
peti
unavailable to
undisputed that he was
(10)
e-mail;
information about
saved
tion)
corpus in the
for a writ
habeas
attacks,
Bin
11th
jihad,
September
The district
of Illinois.
District
Central
computer.
laptop
Laden on his
lack
petition
dismissed the
court
does not assert
Bush,
Rapp
venue,
F.Supp.2d
Declaration
v.
Al-Marri
(1)
citizen,
affiliate of'
or
that al-Marri:
(C.D.Ill.2003);
Circuit
the Seventh
forces,
nation at
any
war
the armed
affirmed,
Rumsfeld,
v.
360 F.3d
Al-Marri
(2)
on, near,
States;
(7th
was seized
Cir.2004);
the United
Court
a battlefield on
having
from
certiorari,
Rumsfeld,
escaped
v.
al-Marri
denied
forces of the United
the armed
L.Ed.2d 11 which
engaged
com-
(2004).
or its
were
8, 2004,
counsel States
allies
July
al-Marri’s
On
(3)
during
bat;
Afghanistan
petition on al-
ever
habeas
present
filed
between
United
the armed conflict
District of South
behalf
Marri’s
(4)
there; or
9, 2004,
and the
direct-
States
Taliban
the Gov
September
On
Carolina.
hostilities
ly participated
cit
petition,
answered al-Marri’s
ernment
*8
forces.
or allied armed
Jeffrey
Rapp, United States
N.
the Declaration
ing
Intelligence Task
of the Joint
Director
14, 2004, the Government
October
On
Terrorism,
sup
as
Combating
Force for
access to his counsel
permitted al-Marri
to detain al-
the President’s order
port for
initial confine-
since his
for the first time
enemy
as an
combatant.
Marri
enemy combatant
sixteen
as an
ment
(According to al-Marri’s
months before.
asserts that al-
Declaration
Rapp
The
counsel,
of the en bane
(1)
as of the time
-with
“closely associated
al
Marri:
per-
still has not
filings, the Government
organiza-
terrorist
Qaeda, an international
to his wife or
speak
mitted al-Marri
is at
States
tion with which
United
children.)
sub-
Al-Marri then
(2)
of his five
war”;
Qaeda
al
terrorist
trained at an
evi-
reply
the Government’s
be- mitted
Afghanistan
sometime
training camp
dence, contending that he is
an enemy
not
II.
combatant;
then
he
moved
summary
for
Al-Marri premises his habeas claim on
judgment. The district court denied the
the Fifth
guarantee
Amendment’s
that no
summary judgment motion and referred
person living in this
can
country
be de-
magistrate
case to a
judge for consid
prived of liberty without due process of
eration of the appropriate process to be
law. He maintains that
if
even
he has
afforded
in light al-Marri
committed the acts the Government alleg-
to file rebuttal evidence. and, if he is convicted court, a civilian In response to the magistrate’s ruling, imprison him. But he insists that neither al-Marri again denied the Government’s nor any Constitution permits law allegations but filed no evidence, rebuttal Government, on the basis of the evidence it contending Government had an proffered has to date —even assuming all initial burden produce evidence that he of that evidence is true —to treat him as an was an enemy combatant and that subject combatant and him to indef- Rapp Declaration did not suffice. The military inite detention, without criminal magistrate judge recommended dismissal charge or process. of al-Marri’s petition habeas because al- The Government contends that the dis- Marri had failed rebut the allegations in trict court properly denied habeas relief to the Rapp Declaration. In August 2006, al-Marri, because the Constitution allows the district court adopted magistrate detention combatants the mil-
judge’s report and recommendation and itary without process, and, criminal accord- dismissed al-Marri’s habeas petition. A ing to Government, proffered later, days few al-Marri noted appeal.3 evidence that al-Marri is an enemy com-
After oral argument, panel of this batant. The Government argues that the court reversed judgment AUMF, district as construed precedent and court and remanded the case further conjunction considered in the “legal Al-Marri, proceedings. 487 F.3d background against which [it] enact- On the Government’s motion ed,” for rehearing, empowers the President on the basis the court voted vacate the opinion panel proffered evidence to order al- and hear the case en banc. For the rea Marri’s indefinite detention within, sons set forth we would again once enemy combatant. Alternatively, the Gov- hold that al-Marri must be afforded habeas ernment contends that even if the AUMF relief and so would reverse judgment does not authorize President to order of the district court and remand the case detention, al-Marri’s military the President *9 for further proceedings consistent with has “inherent constitutional power” to do that holding. so.
3. Numerous amici have submitted briefs to and we especially grateful are for the care us, jurisdictional both on the and ques- merits issues, focusing exhibited in on different thus Many tions. these helpful, of briefs been have avoiding redundancy.
222 including persons,” protect! ] ... ments
A.
nationals”);
v.
Sanchez-Llamas
“foreign
case on well-
grounds its
party
Each
2669,
331, 126
2681-
S.Ct.
Oregon, 548 U.S.
Moreover, im-
legal doctrine.
established
(2006) (observing that
82,
223
Carta,
back to
Magna
which guaran-
Martin,
Schall v.
253,
467 U.S.
104 S.Ct.
“government
teed that
would take neither
2403,
(1984)
The
Constitution is a
has permitted a
one;
thus,
momentous
recognized
limited
specific
excep-
number of
exceptions to
tions to
process
criminal
general
rule.
are
Although some
narrow
process
scope
always
is
required
generally permit
order to detain an
limited
individual,
periods
See,
special
e.g.,
situations
detention.
detention
Jackson v.
Indiana,
based
715, 738,
less
406 U.S.
1845,
than
attendant
92 S.Ct.
a
(1972).
criminal
32
Moreover,
conviction does not
L.Ed.2d 435
violate
regard-
See,
the Fifth Amendment.
e.g.,
possible
less of
v.
Kansas
to community
“threat[s]
Hendricks,
346,
521
2072,
safety”
U.S.
117
S.Ct.
“barriers
criminal prosecu-
(1997) (civil
138
501
tion,”
L.Ed.2d
post
(Wilkinson, J.,
commitment
at 305
concurring
of mentally
offenders);
ill
Salerno,
sex
in part
481
and dissenting
part),
the Govern-
739,
2095,
U.S.
107 S.Ct.
224 proffer it must evidence rights, the within stitutional
cess,
individual fits
unless the
“qual-
whom
that
the individual
to
category
persons
to demonstrate
legal
narrow
example, the
For
treatment.
542
exception applies.6
exceptional
for this
the
if[ies]”
that
Constitu-
534,
Only
has held
the
Supreme
516,
Court
124
2633.
at
S.Ct.
U.S.
to
the Government
permit
does
tion
forth
“put[]
has
the Government
after
through a
criminal
predatory
sex
detain
that”
an individual
credible
evidence
by estab-
process simply
civil commitment
enemy-combatant
the
criteria”
“meets
i.e., a “threat
dangerous,
he is
lishing that
to
shift to the individual
does “the onus”
The civil commit-
community safety.”
to
[en-
“that he falls outside the
demonstrate
for crimi-
may be substituted
process
ment
534, 124
Id. at
criteria.”
emy combatant]
meets
the Government
process
nal
if
For,
country, the mili-
in this
2633.
S.Ct.
is,
burden,
the Govern-
statutory
its
indefinitely
an
detain
tary
seize
cannot
dangerous-
“proof of
ment demonstrates
pro-
when the sole
particularly
individual —
factor,
of some additional
“proof
ness”
is a
leading to his detention
determi-
cess
abnor-
‘mental illness’ or ‘mental
as a
such
that the detention
by the Executive
nation
”
Hendricks,
358,
117
at
mality.’
521 U.S.
the Government
necessary7
is
—unless
2072.
5.Ct.
“qualiffies]”
that he
for
demonstrates
Hamdi,
explained
plurality
the
fits
extraordinary
treatment because he
apply when
principles
the same
precisely
category
enemy
com-
“legal
within the
person
seeks to detain
the Government
1,
516,
n.
124
Id.
522
S.Ct.
batant.”
habe-
the
enemy combatant. Under
as an
2633.
Hamdi,
if
the
prescribed
procedure
as
Moreover,
the Government con-
when
to the
exception
asserts an
Government
here,
tends,
that an individual
as it does
an
by detaining as
process
criminal
usual
rights
eon- with constitutional
an individual with
enemy combatant
2749, 2775,
557,
Furthermore,
723
165 L.Ed.2d
has never
126 S.Ct.
the
6.
Court
process
(2006),
exception
expressly
to
permitted
to criminal
Court
refused
read
judicial
as to
merely
"expand
the basis of
fears
language of the AUMF to
broad
community safety” or "barriers
military
"threat[s]
authority
com-
to convene
President's
post
prosecution.”
at 305
criminal
missions,”
finding
authority
that this
instead
J.,
(Wilkinson,
concurring
part
and dissent-
princi-
law-of-war
was limited
traditional
Rather,
permitted
ing
part).
the Court has
congressional
specific
ples
a more
"[a]bsent
body
legislative
exceptions only when a
such
authorization.”
See,
exception.
explicitly
authorized
2095,
Salerno,
739,
S.Ct.
95
e.g.,
481 U.S.
107
recognizes
process that
that the sole
7. Hamdi
1984);
(Bail
L.Ed.2d 697
Reform Act
provide in order
ini-
need
Government
2403,
Scholl,
253, 104 S.Ct.
81
467 U.S.
presi-
tially
combatant is a
detain an
Act);
(New
Family Court
L.Ed.2d 207
York
the detention is
dential determination
418,
1804,
Addington,
60
441 U.S.
99 S.Ct.
2633.
necessary.
U.S. at
124 S.Ct.
(Texas
governing involun-
statute
L.Ed.2d 323
course,
writ
also reaffirms that the
Of
Hamdi
grounds);
tary
on mental health
commitment
remedy
chal-
corpus provides a
of habeas
Hendricks,
U.S.
117 S.Ct.
legality
ongoing
lenge collaterally
(Kansas Sexually
Preda-
L.Ed.2d 501
Violent
525-26,
detention.
Id.
Act).
hardly surprising
Accordingly, it is
tor
remedy
Although
follows from
habeas
AUMF,
that, despite
language of the
the broad
Clause,
plurality
Hamdi
bor-
Suspension
only Supreme Court in Hamdi found
balancing approach
rowed
due
congressional
provided
authoriza-
statute
Eldridge, 424 U.S.
v.
from Mathews
of an
detention
tion
(1976),
design
only such care accords
“deeply
with the
rooted
opposition
and ancient
in this coun-
B.
try to the extension of military control
primary
Government’s
argument is
Covert,
over civilians.”
1,
Reid v.
AUMF,
as
by prece-
construed
(1957)
in some not re- arguments do The Government’s mitted, 11th at- September or aided” the results, to deal with the absurd quire us tacks, long as the President believed so concerns, reach the constitutional nor “necessary appropriate” this to be interpretation of the AUMF raised future acts of terrorism. prevent authorize the President de- that would indefinitely charge criminal interpretation of the tain such an
Under —without he to have AUMF, money nonprofit process' anyone or believes if some from — ], ], organization made aided charity Afghan orphans that feeds “nationf 11th Qaeda, person[]” September related to the way to al the President could its 2(a), § 224. For any terrorists. See Stat. subject to indefinite detention wisely argu- limits its charity. Similarly, this in- the Government donor to that scope It relies on the would allow the ment.9 terpretation of AUMF ” contends, because, Judge she the AUMF Judge Williams and Wilkinson war’ 9. Chief law,” purposes ... of domestic approach; we "controls for each take a different address acknowledges giving full she then approaches within. We note but each of these here, however, "might produce absurd inconsistency in force to that statute a basic both Judge rely 286 & n. 4. Wilkinson reasoning. heavily results.” Post at Both first dissenters' initially points goes He to the language as autho- even further. on the broad AUMF detention, language explicitly of the AUMF and chides us rizing but then breadth al-Marri’s effect, refusing give post at 296- interpreting it full recognize the difficulties with ultimately language. he himself also refuses give but statute to effect to this broad Rather, Judge give language full effect. Judge dismisses the definition of en- Williams recognizes properly the "constitu- ‘law of Wilkinson emy combatant under "the traditional as construed precedent War), AUMF as well as constitutional and law-of- light considered in war legal principles. of “the back- ground against which [it] enacted.” With respect latter, to the we note that Specifically, the Government contends that American courts have often been reluctant “[t]he Court’s and this Court’s to follow international law in resolving do- prior construction govern of the AUMF disputes. mestic present context, this case compel the conclusion that however, they, like here, the Government the President is authorized to detain al- have relied on the law of treaty obli- war — Marri as an enemy combatant.” gations including Hague and Geneva
Conventions and customary principles de-
i.
*14
veloped alongside them. The law of war
provides clear
for determining
rules
an
precedent
interpreting the AUMF
individual’s
during
status
an international
on which the Government
relies for this
conflict,
armed
distinguishing
between
argument consists of two cases:
the Su-
(members
“combatants”
of a nation’s mili-
Hamdi,
preme
opinion
Court’s
in
542 U.S.
tary, militia, or
forces,
other armed
and
507,
2633,
124
578,
S.Ct.
159 L.Ed.2d
them)
those who fight alongside
and “civil-
Hanft,
Padilla v.
opinion
our
in
423 F.3d
(all
See,
ians”
persons).11
other
e.g., Gene-
(4th Cir.2005).10
386
The “legal back-
va Convention Relative to the Treatment
ground” for the AUMF, which the Govern-
(Third
of Prisoners of War
Geneva Con-
cites,
ment
consists of two cases from ear-
vention)
2, 4, 5,
12,
arts.
Aug.
1949, 6
Quirin,
conflicts,
Ex Parte
lier
1,
317 U.S.
3316,
U.S.T.
135;
75 U.N.T.S.
Geneva
2,
(1942) (World
63 S.Ct.
informed the
understand-
stantial support
rulings
for the narrow
ing that the AUMF authorizes detention
“may
Quirin,
Hamdi and
In
unravel.” Id.
S.Ct. 2633.
Padilla.
which the
plurality
Hamdi
characterized as the
Padilla,
panel
of this court similar-
apposite precedent,”
“most
542 U.S. at
ly held that
the AUMF authorized the
the Supreme
upheld
Court
President
to detain as an
combat-
treatment,
combatants,
ant an American citizen who “was armed
directed, outfitted,
paid by
men
present
Afghani-
in a combat zone” in
*16
military
bring explosives
German
to
into
part
stan as
during
Taliban forces
destroy
to
United States
American war
conflict there with the United States. 423
during
Qui-
industries
World War II. The
(internal quotation
F.3d at 390-91
marks
rin
omitted).
petitioner
Court concluded that even a
The Government had not been
claiming
citizenship
American
had been
capture
able to
Jose Padilla until he came
properly
enemy
classified
States, but,
as
combatant
to
border of the United
because “[e]itizens who associate them-
presented
because the Government
evi-
military
enemy
selves
arm
with
up
dence that Padilla “took
arms
aid,
government, and
guidance
with its
[Afghanistan]
United States forces
country
way
direction enter this
bent on hostile
same
the same extent as
acts,
Hamdi,”
enemy belligerents
did
we concluded that he “un-
are
[combatants]
questionably qualifies
‘enemy
meaning
as an
within the
...
war.”
com-
the law of
37-38,
batant’ as that term was defined for the
231 ing the Government” of country) may this been on the battlefield during the war in subjected not be to military Afghanistan, control and alleged not to have even been deprived of Milli- rights. constitutional in Afghanistan during the armed conflict gan, 6,130.14 71 U.S. at there, and alleged to have engaged in combat with United States any- forces sum, In and Pa- holdings of Hamdi where in the world. Rapp Declaration (1) dilla share two they characteristics: (alleging facts, none these but instead look to principles law-of-war to determine that “[a]l-Marri engaged conduct who within the “legal category” fits preparation for acts of international ter- combatant; (2) enemy following the rorism intended to cause injury or adverse war, law of they enemy rest States”). effects on the Indeed, United status on affiliation with the arm unlike Padilla, Hamdi and al-Marri had enemy of an nation.
been imprisoned in the United
States
ii.
civil authorities on criminal
charges
more than
year
being
before
seized
of the holdings
in Hamdi view
the military and indefinitely
in a
confined
Padilla, we find it
remarkable
Navy brig
an enemy
combatant.
Government contends that
“compel
they
the conclusion” that
President
In place of the “classic wartime deten-
detain
al-Marri as an
combatant.
tion” that the
argued justified
Government
For
Padilla,
unlike Hamdi and
al-Marri
is Hamdi’s
detention as an
combatant,
not alleged to have been part of a Taliban
see Br.
Respondents
20-21, 27,
Ham-
unit, not alleged
di,
to have
alongside
stood
507,
542
2633,
124 S.Ct.
159
the Taliban or the armed
578,
forces of
L.Ed.2d
or the “classic battlefield”
enemy nation,
other
not alleged to have
detention it
justified Padilla’s,
maintained
important
principle,
Because
this
nation,
subject
States and
14.
not the
of an
Supreme
Milligan
Court has hailed
as "one of
rights guaranteed by
those
the Due Process
great
Rather,
history.”
th[e]
landmarks in
Court's
Clause.
Court
re-
Reid,
354 U.S. at
Although
S.Ct.
peatedly
held that aliens situated like al-Marri
appellate
in its
brief the
largely
unquestioned
Government
have
right
to the due process
Milligan,
implicitly
avoids
acknowledges
Sanchez-Llamas,
of law. See
S.Ct.
point
2681-82;
attempts
and so
distinguish
Zadvydas,
Milli-
533 U.S. at
gan
2491;
from the case at hand
ground
on the
Wong
S.Ct.
Wing, 163 U.S. at
Milligan
977;
awas
citizen and
an alien.
al-Marri
Verdugo-Urquidez,
see also
circumstances,
In some
the Constitution does
U.S. at
3. ring). legal The Government offers no other Common Article 3 and other Geneva rationale, precedent, authority or justify- provisions Convention applying to non-in- ing position its that the empowers AUMF (in ternational conflicts contrast to those the President to detain al-Marri as conflicts) applying international simply combatant; indeed, enemy argu- at oral recognize do not “legal category” court, ment before the en banc the Gov- enemy combatant. See Third Geneva Con- repeatedly emphasized ernment that it ar- vention, art. U.S.T. 3318. As the gued only may that al-Marri be detained International Committee of the Red under the AUMF because he is an Cross—the official codifier of the Geneva combatant under established law-of-war explains, ‘enemy “an com- Conventions— Quirin principles explicated and other who, person batant’ is a lawfully either precedent. dissenting colleagues go Our unlawfully, engages in hostilities for the further, They however. contend that the opposing side in an international armed definition of combatant has some- conflict”; contrast, “[i]n non-internation- expanded permit how a person to be so al armed conflict combatant status does classified because of criminal conduct Comm, Cross, Int’l not exist.” of the Red organization. on behalf of a terrorist We Official Statement: The of IHL Relevance extensively have authority searched (Feb. Terrorism, in the Context support position; would the dissents’ 21, 2005), http://www.icrc.org/Web/Eng/ we have found none. siteengO.nsflhtmlall/terrorismihl-210705 added).16 (emphasis i.
First, reason, Supreme Perhaps for this our dissenting Court’s most recent terrorism colleagues cases—Hamdan and Boume- and the ignore Government cases, Notwithstanding principle, recog- approach we court to follow this in some suggested nize that some have commentators would not assist the Government here. For they part that "for such time take a direct proffered the Government has no evidence hostilities,” participants in non-internation- part that al-Marri “direct has taken a in hos- may, al armed conflicts as a matter of cus- Moreover, tilities.” the United States has law, tomary placed international be adopted treaty elsewhere a formal under- legal category formal combatant. standing meaning of the term "direct See, e.g., Bradley Curtis A. & Jack L. Gold- hostilities,” part plainly al- which excludes smith, Congressional and the Authorization Message Marri. See from the President of the Terrorism, War on 118 Harv. L.Rev. Transmitting Optional United States Two Pro- (2005) Bradley 2115 & n. 304 & [hereinafter Rights tocols to the Convention on the (internal quotation Goldsmith] marks omit- Child, Treaty S. Doc. No. at VII ted). precedent No from the Court (2000) (distinguishing between "immediate view, or this court endorses this and the Gov- and actual action on the battlefield” and "in- argu- ernment itself has not advanced such an participation,” including gathering ment. This because even were direct *20 enemy by the Executive “as combat- with al nated holding that the conflict
Hamdan’s forces at in is a non-internation- ants” and held United States Qaeda Afghanistan that, fact in such “the ignore Bay and the must be afforded al conflict Guantanamo conflicts, enemy com- legal category of ha- procedural protections fundamental Indeed, the Gov- does not exist. batant by our corpus” guaranteed beas Constitu- of Ham- acknowledgment ernment’s sole tion, though they foreign were nation- even appellate in dan is footnote its short foreign in lands. als who had been seized brief, it that “the Court in which asserts that Id. explained at 2277. The Court subject was given it as a that Hamdan took designed are laws and Constitution “[t]he combatant dur- to detention as force, survive, in in extraor- and remain The weakness of ing ongoing hostilities.” times.” Id. at 2277. dinary only Not does response apparent. this is Moreover, even were the holding in Hamdan that the it avoid the ultimately approve the detention Court al the United States and conflict between Boumediene, Hamdan, like and those conflict, but Qaeda is a non-international them, that that would not bolster the view that improperly suggests it Su- also militarily al- the Government can detain approved Hamdan’s deten- preme Court combatant.17 Because Marri as legality of that detention tion when legal status of combatant does not before the Court. conflicts, in not exist non-international issued, after Hamdan fact, years two persons leaves the detention of law of war again once declined to resolve Court law of applicable such conflicts very legality of the deten- this issue—the case, country. In al-Marri’s detaining and detained in the captured tion of those applicable law is our Constitution. outside Qaeda conflict with al United Constitution, if our even the Su- Under Boumediene, States. that the preme Court should hold Govern- (expressly noting that the Court does Boumediene, indefinitely ment detain “not address whether the President has Hamdan, them, who were others like authority petitioners” to detain these captured outside States and United regarding legality “questions voluntary connections lack substantial the detention are to be resolved the first country, holding provide would Court”). instance the District Further- mili- support approving no al-Marri’s Boumediene, more, in the Court demon- tary only For not was al-Marri detention. sympathy for the strated no more Govern- seized and detained within United any position than it had in ment’s States, Rather, connections he also has substantial other recent terrorism cases. persons desig- plainly held that to the United States and so expressly Court Qaeda information, Afghanistan. transmitting military weapons, and al Of States course, supplies). participant al-Marri is not involving Afghan- conflict the United States in Supreme Court did not hold in Boum- 17. The Although alleges the Government istan. a non-interna- ediene or Hamdan there is Qaeda training camp al-Marri attended an al the United tional armed conflict between 11th, Afghanistan years September before Qaeda States and al within the United States. proffered no evidence that al-Marri was Non-international conflicts "occur[] involved in the conflict between the United territory High Contracting of one of the Par- Qaeda Afghanistan and al States —nor ties,” Hamdan, (emphasis it, Afghani- not been in could for al-Marri has Convention, added) (quoting Third Geneva any point during stan at that conflict. 3318) U.S.T. at Hamdan found —and there to be a conflict between the United *21 sure, enemy To be combatants com- by the Due Process Clause. protected 977; Wong Wing, 163 U.S. just may. 16 S.Ct. mit crimes as civilians an When Verdugo-Urquidez, also war, 494 U.S. see enemy combatant violates the law of 271,110 will the person that conduct render combatant, enemy subject “unlawful” not
ii. military to detention but also to trial similar- precedent Court Quirin, Other and punishment. position for the
ly support offers no merely engaging 2. But in unlaw- 63 S.Ct. country lawfully resident persons enemy ful behavior does not make one an of our Constitu- protections to the entitled Quirin combatant. illustrates these dis- ordinary American citizens— tion—even Quirin petitioners tinctions well. The can lose their civilian status become enemy associating were first combatants — they allegedly if have enemy combatants military with the arm themselves of, on behalf in criminal conduct engaged government with which the Unit- German with, organization seeking or associated became un- They ed States was at war. course, a to harm the United States. Of enemy they combatants when vio- lawful a crime should be person who commits lated the law of war “without uniform protected by when a civilian punished, but comfing] secretly for the through lines crime, Due Process Clause commits so, war.” Id. By purpose waging doing trial, punish- subject charge, he is to subject military being addition to to court, not to seizure ment in a civilian for the duration of the conflict as detention by military authorities. confinement combatants, enemy they also became “sub- in- the understandable recognize We ject punishment by military to trial and to treat domestic stincts of those who wish tribunals for acts which render their belli- “global “combatants” in a war terrorists as Quirin Id. Had the illegal.” peti- gerency activity criminal Allegations on terror.” “secretly and uni- tioners never without organization, in association with terrorist lines,” id., passed “military they form” our however, permit the Government to do combatants, enemy still would have been transform a civilian into an combat- detention, subject military to but would detention, subject military ant to indefinite not have been combatants unlawful murder in association just allegations as subject military punishment. trial and to others service do not with while Quirin precedent nor other Neither a ci- permit the Government transform dissenting colleagues as our suggests, even subject trial vilian into a soldier believe, with con- seem to that individuals States ex rel. See United martial. court with the mili- rights, stitutional unaffiliated Quarles, 11, 23, Toth v. any enemy can be (1955) tary government, arm of (holding L.Ed. that ex-service- subjected military jurisdiction and de- civilians, men, “like other are entitled solely on the prived rights of those basis safeguards afforded have the benefit of a terrorist or- their conduct on behalf of regular courts author- those tried Constitution”). Milligan fact, rejected ganization.18 by Article III of the ized See, country. e.g., capturing organizations authorities in the 18. The distinction between Message of the United from the President not without rationale. The law of nations is Transmitting II Additional classify persons the Protocol war affiliated States does not Conventions, and Relat- organizations to the 1949 Geneva terrorist combatants ing Victims of Non-inter- doing Protection of fear that so would immunize them Conflicts, Treaty Doc. No. punishment by Armed S. prosecution and civilian national from they just as is “the war out of which attempt to do this. dented” the Government’s *22 There, Today, acknowledged grew”). that Milli- the Government contends the Court aiding” requires a that the fate of our nation gan’s “joining and “se- conduct— military detention of al-Marri and others political organization, oppose cret armed laws, by stealthy lawfully country resident in this because of seeking] and means organiza- in a terrorist country membership the enemies of the their to introduce communities, century ago, ... A simi- peaceful into there to tion. Government military power larly the United contended that the detention overthrow Milligan and other members of the co-conspirators States” —made him and his Sons Liberty lawfully country “dangerous country.” to their 71 of resident this enemies 6, necessary But the Government did was to “save the nation” from plots the terrorist of the “one hundred allege Milligan not that took orders from in” any enemy government up organiza- or took arms thousand men enrolled 102,104. against country Milligan, on the battlefield. tion. Id. at Thus “one landmarks,” Reid, great And so the Court held that the Govern- of [the Court’s] subject firmly Milligan by ment could not to trial 354 U.S. at military enemy clearly rejected argument or treat him as an the Govern- tribunal subject military combatant detention as ment asserts here. The weakness of the prisoner Milligan attempts distinguish a of war. was an dissents’ brief Mil- “enem[y] country” ligan strength prece- of the and associated attests to the of the (The organization seeking with an to “over- dent. concurrence does not even at- distinction.) country, tempt the Government” of this a throw[ ] but he still a civilian and had to First, dissenting one of colleagues our treated as one. Id. Milligan” maintains that “reliance on
Although Milligan “misplaced” principles “apply involved a time in because its democracy younger, which our was much it it has that an been determined” after fully civilian, threatening dealt with a war as to our individual “is a not a combatant.” J., country (Wilkinson, present concurring as conflict. See id. at Post at 326-27 (noting the argument part dissenting part); Government’s see also Milligan’s military post ignores detention must be at 301. This contention permitted unprece- Milligan express rejection because “the facts are Court’s (1987) (explaining leagues, hardly "completely at IV President Rea- these fears are gan’s against ratifying J., recommendation (Wilkinson, post unfounded.” See at 323 treaty provision grant that "would concurring part dissenting part). irregular "give recog- status to forces” so Foreign already designated leaders who have protection groups”). nition and to terrorist organiza- members of these environmental Moreover, permitting a rule indefinite mili- well, might applying tions "terrorists” the dis- tary detention of members of a "terrorist” definitions, sents' conclude that individ- those combatants, organization as in addi- are uals combatants and thus detain contrary being controlling prece- tion to indefinitely process. them without criminal dent, Milligan, 71 U.S. at could well Tabuchi, Japanese Hunting See Hiroko Are endanger country citizens of this or our allies. 18, 2007, (N.N.J.), Humpbacks, Record Nov. example, employ For a nation could this rule (reporting Japanese at A10 that some leaders to treat American members of an environ- regard Greenpeace, organiza- activists for group, regards mental which as terrorist members, terrorists); tion with 2.8 million as organization, as combatants and so Hodge, Japan Warship Help Amanda “Sent to subject military those Americans to indefinite Whalers", Australian, Jan. at 3 detention. Under definitions nebulous as (same). proposed dissenting
the ones
our
col-
(Wilkinson,
argument
Milligan,
J.,
Government’s
concurring in part and dis-
subject
trial,
if
military
senting
even
could
in part)
(asserting that because
military as a prisoner
Congress
be held
did not authorize
use of
during
war
the duration of hostilities.
against
force
“the Sons of Liberty, Milli-
Milligan,
ty for the duration of the conflict.” See id.
distinguish Milligan. The Govern-
not—
Second,
equally unconvincing,
allegations against
ment’s
Milligan mirror
apparently
dissenters
believe that the en-
the Government’s allegations against al-
of
actment
the AUMF
Milligan’s
makes
Marri.
If the
allegations
Government’s
distinguishable
true,
case
from al-Marri’s. See here are
Milligan,
like
al-Marri
is
(Williams, C.J.,
post at 286
concurring
criminal,
deplorable,
but,
dangerous,
(acknowl-
part and dissenting
part)
Milligan,
like
he is a civilian nonetheless
edging
Milligan governs
rights
and must be treated as
Congress
one—for
civilians but
finding
certainly
nevertheless
that the
has not directed otherwise.
permits
Thus,
AUMF
the President
to declare
we believe that the indefinite deten-
combatant);
enemy
al-Marri an
post at 301 tion of al-Marri must cease.19
attacks);
Reid,
19. We note that the Government's treatment
11th
United States v.
369 F.3d
al-Marri, i.e.,
subjecting
military
him to
(1st Cir.2004) (civilian prosecu-
619-20
detention, which the Government insists "is
tion of terrorist allied with Bin Laden who
"
‘punishment,’
not
is at odds with the Gov-
attempted
destroy airplane
explo-
repeated recognition
ernment's
that criminal
sives);
Goba,
F.Supp.2d
United States v.
terrorist
country
conduct
aliens in this
(W.D.N.Y.2003)(civilian prosecution
court,
punishment by
merits
a civilian
not
Qaeda, including
of associates of al
those who
indefinite
detention as an
,
met with Bin Laden and trained in terrorist
See,
Abdi,
e.g.,
combatant.
United States v.
camps Afghanistan).
long
And after
con-
(6th Cir.2006) (civilian
463 F.3d
combatant,
tending
he was an
the Gov-
Qaeda
prosecution
suspected
al
terrorist
ultimately prosecuted
ernment
even Jose Pa-
allegedly
who
"indicated a desire to 'shoot
dilla in civilian court for his crimes. This
up’
shopping
a Columbus
mall with an AK-
practice
hardly
47”);
Moussaoui,
new. Even the civilian co-
United States v.
382 F.3d
Quirin
(4th Cir.2004) (civilian
conspirators
petitioners
prosecution
were
alof
Qaeda conspirator
September
involved in the
tried for their crimes in civilian courts. See
required
that it insists is
be-
authorization
iii.
may engage
the President
the United
fore
Moreover, the AUMF does not assist
Armed Forces in extended hostili-
States
colleagues. The AUMF
dissenting
our
ties abroad.
clearly
that it is “intended to consti-
states
dissenting col-
authorization within
At
least some of our
statutory
tute specific
5(b)
however, apparently believe that
meaning
leagues,
of the War
section
2(b),
“activat-
§
115 Stat. 224.
enactment of
AUMF
Powers Resolution.”
Ha/mdan,
Resolution,
powers,”
President’s war
Powers
ed the
And under
War
substantially
but also
statutory
permits
authorization
such
category
powers
expanded
legal
and redefined the
“exercise[]”
President
“as
They
wrong.
combatant.
are
to introduce United
Commander-in-Chief
Plainly,
specific
is not “a
Armed Forces into hostilities” and
AUMF
States
aimed at
engaged
targeted congressional
in such hostilities for
directive”
to remain
*24
“may
sixty days.
than
which individuals
be
for
longer
detained[]
U.S.C.A.
1544(b) (West 2003). Thus,
1541(c),
law.”
at
purposes
§§
to
of domestic
Post
(Williams, C.J.,
say
concurring
part
that
did not have a dramatic
and dis-
Congress
Rather,
military
senting
part).
precisely
be-
expansion of the Executive’s
de-
power
passed
only
in mind when it
cause the AUMF contains
a broad
tention
say
Congress
grant
powers
any specific
is not “to
that
had
of war
and lacks
AUMF
detention,
very
language authorizing
in mind at all.”
the Ha/m-
little
Post
(Wilkinson, J., concurring
plurality explained
opinion “only
that
part
dis- di
its
Rather,
say
legislative authority
it
that
finds
to detain under
senting
part).
is to
AUMF,
sufficiently
general
in the
as
other
authori-
the AUMF once
is
clear
is,
fact,
enemy
passed pursu-
zations for the use of force
the individual
combat-
Resolution,
523,
ant.”
ant to the War Powers
Con-
542 U.S.
S.Ct. 2633
added).
provide
statutory
military
gress
(emphasis
Although
intended
States,
1,
explained that the
decided to
Cramer v. United
918,
65 S.Ct.
has
Government
(1945);
241
(1980); see also Edmond v.
L.Ed.2d 381
the stat-
not eliminate
Act does
the Patriot
States,
651, 657, 117
520 U.S.
S.Ct.
in United
President
authority provided
utory
(1997).22
1573,
batant;
thus,
“qualif[ies]”
if an alien
combatant,
author-
the AUMF
then
dissenting
we do not find our
Finally,
542 U.S.
izes his detention.
new definitions of
colleagues’ respective
any
516,
if there were
2633. But
124 S.Ct.
compelling.
all
enemy combatant at
Patriot Act and
conflict between
that, under tradi-
dissents do not contend
of the detention
legality
to the
AUMF as
enemy com-
principles,
tional
law-of-war
within the Unit-
alien civilians
of terrorist
would extend to al-Marri.
batant
status
States,
give prece-
have to
we would
ed
(Williams, C.J.,
See,
con-
at 286
e.g., post
Act —for while
the Patriot
dence to
dissenting
part)
and
curring
part
focus is
specific
explicit
Act’s
(“The
Patriot
may very well be
plurality opinion
aliens within
of terrorist
that,
on detention
traditional
‘law of
correct
under the
States,
any lan-
lacks
the AUMF
war,’
United
with the mili-
persons not affiliated
id.
detention. See
such
guage permitting
may not be consid-
tary of a nation-state
Supreme
combatants.”);
316,
post
2633. And
S.Ct.
ered
(Wilkinson,
specific
J., concurring
part
“a more
has instructed
320-21
Court
(“Traditionally,
dissenting
part)
over
given precedence
statute will be
one,
‘enemy’
tem-
has been state-based
regardless of their
definition
general
more
”).23
States,
Instead,
in-
justify
al-Marri’s
....
Busic v. United
poral sequence.”
detention,
the dissents
398, 406,
definite
cited,
we have not
has not
acknowledges
Pa- Williams
that the
Judge
Williams
found,
authority
support
an anal-
such
prohibits
detention of un-
Act
indefinite
triot
long
directed
ysis. The
Court
captured
alleged
aliens
terrorist
armed
the "well settled rule”
that courts follow
States,
recognizes
United
and she
general
over a
one
specific statute controls
Act,
provi-
"more-specific
Patriot
as the
legislative intent.
ascertain
as a means to
sion[],”
with the same
governs if it "deal[s]
Little,
v.
Townsend
subject
the AUMF. Post at 287-
matter” as
(1883) (noting that when
L.Ed.
recognize that her ex-
88. Yet she refuses
ap-
provisions”
"in
"general
specific
are
permits
interpretation
the AUMF
pansive
contradiction,
whether in the same
parent
precisely the same
indefinite detention of
*27
statutes,”
"qualify[]
specific
will
different
(unarmed alleged terrorist aliens
persons
general”);
exceptions
supply[]
to the
States) whose indefi-
captured in the United
100, 125,
States,
U.S.
Kepner v. United
195
Patriot
prohibited
nite detention is
797,
(1904); see also
L.Ed. 114
24 S.Ct.
49
Judge Williams offers
rationale
Act. The sole
States,
U.S.
365
Watch Co. v. United
Bulova
refusing
Act controls
to hold the Patriot
for
(1961)
864,
753, 758,
6 L.Ed.2d
81 S.Ct.
view,
that, in her
given
conflict is
this
cases).
whether—
(collecting
Where—indeed
powers
presidential
"refer” to
two statutes
specific executive
legislation
to a
"refer[s]”
of the Constitu-
forth in different sections
set
to enforce
permitting the President
power
therefore,
and,
not be read to
should
tion
matters not
congressional authorization
(suggesting
Post at 287-88
conflict.
making
determination.
in
this
at all
pow-
to the President’s
"refer[s]
Patriot Act
Clause,
view,
while the
Take Care
er” under the
takes a different
concurrence
23. The
law-of-
contending
to the Commander-in-Chief
that traditional
apparently
AUMF "relates
correct,
military detention
permit
is
power”).
principles
Even if this view
war
post at
persons
him. See
suggested that this
like
Supreme
has never
of al-Marri
Court
J.,
(Traxler,
concurring
judgment).
determining
in
consideration
is a relevant
above,
disagree.
Indeed,
we
reasons set forth
Judge
For the
two statutes conflict.
whether
“[tjhe
resort
inventing
permissible
novel definitions of en-
ed that
bounds” of “[t]he
combatant,
emy
legal category
combatant”
drawing on their own be-
would
“be defined
the lower courts
appropriate.
liefs as to when detention is
as subse-
quent
presented
cases are
That
to them.” Id.
judicially-created
these
definitions
at
nothing
522 n.
S.Ct. 2633. But
in
markedly
differ so
from one another fol-
opinions
suggests
Hamdi
from the fact
simply
lows
that each is
courts,
lower
express congressional
absent
product
judicial conjecture; any
limits
authorization, are
beyond
free to venture
may
on whom the
Executive
detain as
traditional
principles
law-of-war
to fashion
enemy combatant
to an
are thus left
indi-
“permissible
these
Reading
bounds.”
vidual judge.
particularly
This is
trou-
permit
Hamdi to
such an action
a huge
because,
bling
distinguished
as our
col-
“
leap.
many
For four times in as
pages the
league
observed,
‘it is difficult to
plurality
Hamdi
cautioned that it
conceive of an
governmental
area of
activ-
willing to find that the AUMF authorized
ity in which
compe-
the courts have less
detention,
enemy combatant,
as an
of a
tence’ than
affairs.” Post at 303
person who fit within “the
catego-
narrow
(Wilkinson, J., concurring
part
and dis-
ry” presented
person affiliated with an
—a
senting
part) (quoting Gilligan v. Mor-
nation,
battlefield,
captured on a
1, 10,
gan, 413 U.S.
93 S.Ct.
engaged
armed conflict
(1973)).
L.Ed.2d 407
United States.
Id. at
124 S.Ct.
Moreover, Supreme
precedent
Court
Contrary
dissenting
to our
col-
seems
rejection
to foreclose the dissenters’
contentions,
league’s
these traditional law-
of traditional
principles.
law-of-war
On
principles
hardly
of-war
“quaint”
are
every occasion in which the Court has
293, 322,
“outmoded.”
Post
328-29
tangentially
considered —even
impor
—the
(Wilkinson, J.,
concurring
part and dis-
case,
tant
issues
stake
it has
Rather,
senting
part).
Supreme
as the
invoked and relied on traditional
law-of-
“[ejstablished
counseled,
recently
Court
le-
See,
Qui
war
principles
guidance.
e.g.,
gal doctrine ... must be consulted for its
rin,
(“From
very
27-38
be;
teaching.
Remote in time it
irrel-
beginning of
history
its
this Court has
evant
present
to the
it is not.” Bourne-
recognized and applied the
law of diene,
In
the Court had
opportuni-
(2004)
the
(Stevens, J.,
513
joined
dissenting,
ty
interpret
the AUMF to incorporate
by Souter,
JJ.) (em
Ginsburg, Breyer,
&
new definitions like
proposed by
added).
those
the
phasis
Although Justice Scalia de
dissenters, but it refused to do so. Rath-
Padilla,
clined to reach the issue in
when
er, the Court
closely
continued to hue
dissenting in
similarly rejected
he
Hamdi
traditional and “longstanding law-of-war
argument
the
that the AUMF authorized
principles.”
521,
243
law-of-
in accord with traditional
forces”
not
did
“author-
the AUMF
stating that
“belligerent
na-
principles as forces
clarity war
a citizen with
detention
ize[ ]
30,
2 (empha-
at
63 S.Ct.
U.S.
canon tions.” 317
interpretive
satisfy
necessary to
added).
as to sis
construed so
be
should
that statutes
concerns.”
constitutional
grave
avoid
to limit
attempts
Judge Williams
Given
that
the Government
definition of
com-
under her broad
in
residing
lawfully
that aliens
conceded
ongo-
associating al-Marri
batant
al-Marri,
States,
have
like
the United
at
Afghanistan.
post
in
ing hostilities
citizens, it
as
process rights
due
same
specific
of a
But this
286-87.
invocation
majority of the Court
that a
seem
would
nothing
country does
specific
conflict in a
definitions
reject the new
only would
of the
her construction
to circumscribe
propose, but
fact
the dissents
that
AUMF,
no limits on deten-
imposes
which
already done so.
world,
in the
as somewhere
long
tion as
colleagues’
our
Although
respect
we
belligerent acts
attempting
someone
ratio-
work,
specific
we
find
hard
also
an
on behalf of
United States
against the
respec-
their
support of
they offer in
nales
Indeed,
response
“enemy force.”
totally unpersuasive.
tive new definitions
court,
Dep-
the en banc
questions from
that
General admitted
uty Solicitor
a.
view,
could
the Executive
Government’s
AUMF,
in the
finds that
Judge Williams
an individual like al-Marri
hold
mil-
indefinite
Congress has authorized
just until the
custody
charges, not
without
combatant,”
detention,
“enemy
an
itary
Afghanistan,
but
of the conflict
end
criteria:
meets two
any individual “who
“ongoing
of’ all
hostili-
“during
course
(1)
belligerent
engages
attempts
he
or
a
ties,”
conceded
be “for
which he
could
States,
do-
either
acts
United
Boumediene,
at
128 S.Ct.
long time.” Cf.
(2)
zone;
foreign
in a
combat
mestically or
of the cur-
(noting that the duration
at
enemy force.” Post
of an
on behalf
among
longest
already
“is
rent conflict
requires neither
Her definition
285-86.
history”).
wars in American
cap-
enemy nation nor
affiliation with an
n
sum,
abandoning precedent
battlefield,
anything else but
nor
ture on
Judge
principles,
law-of-war
traditional
Unit-
injurious
“against
acts
attempted
“enemy com-
renders the term
Williams
hostile, orga-
of some
on behalf
ed States”
Such
defini-
utterly malleable.
batant”
above,
explained
have
group. As
nized
we
con-
constitutional
presents serious
tion
in the
support
no
new definition finds
like
amorphous
definition
cerns. For
Hamdi,
Quiñn.
AUMF,
We note
Williams, lacking
by Judge
that proposed
place
substan-
appears
Judge Williams
by precedent
provided
limits
any of the
“ene-
Quinn’s reference to
weight on
tial
principles, sim-
law-of-war
and traditional
acting un-
including those
my belligerents,
without
ensure
“detention
ply will not
the armed
der the direction of
forces
”
exception,’
carefully
‘is the
limited
trial
(empha-
at
63 S.Ct.
enemy,” 317 U.S.
rule.
U.S.
rather than
added),
that an
com-
sis
to conclude
Salerno, 481
(quoting
“ene-
with an
affiliated
batant need
2095); see also su-
nation-state.
force,”
than a
my
rather
cannot agree
n.
We
pra
ignores the fact
Post
285-86. She
*29
narrow, es-
replaced the
Congress
AUMF
“armed
Quirin
defined
the Court
deed,
tablished definition
enemy
just
term,
combatant
this
when discussing
a vague
with such
one.
Supreme
unbounded
Court characterized
holding
of that
resting
case as
on
b.
traditional
principles, explain-
law-of-war
ing that the “detention of
who
individuals
Judge
different,
very
Wilkinson takes a
fought against
the United States
Af-
persuasive,
but no more
approach. Unlike
ghanistan ...
is so fundamental and ac-
every
court,
other member of this
he main-
cepted an incident to war” that it consti-
tains that the
interpreted
AUMF must be
tutes “an exercise of the
necessary
solely in terms of its broad language. See
appropriate
Congress
force
has authorized
post at
approach,
296-303. Under this
Boumediene,
the President
to use.”
yields
enemy
no
AUMF
definition of
com-
(internal
S.Ct. at
quotation
2240-41
marks
thus,
Judge
batant and
ac-
Wilkinson
omitted). Thus, although Judge Wilkinson
knowledges, imposes
“limiting
no
principle
statutory analysis
defends
by asserting
combatant detentions.” Post at
that we
“giv[e
must
the] text
[of
Recognizing
necessity
for such
limits,
meaning
AUMF] some semblance of the
Judge Wilkinson then creates con-
Congress
it,”
intended for
post at
stitutional criteria for establishing enemy
utterly
he
fails to acknowledge that
combatant status. He proposes that to be
Supreme Court has twice held that
classified as an
subject
Congress’s
AUMF evinces
intent to
incor-
military
indefinite
detention:
porate established law-of-war principles.
(1)
(2)
person
[a]
must
be a member of
organization
or nation
whom
Second, by refusing to
construe
Congress has declared war or author-
through
AUMF
the lens of
law-
traditional
force,
(3)
ized
the use of
(and
principles,
of-war
as Hamdi did
we
knowingly plans
engages
or
in conduct
do), Judge
ignores
Wilkinson
a construc
that harms or aims to
persons
harm
tion that avoids constitutional difficulties
property for the purpose
furthering
and instead chooses one that
abounds
military goals
of the enemy nation or
post
them.
at 312
(recognizing
organization.
“serious constitutional issues that result”
explains,
Post
325. He
praises, and
from
full
giving
effect to the
lan
broad
applies
then
al-Marri,
these criteria to
un- guage
AUMF);
of the
post
see also
at 295-
surprisingly
concluding that
al-Marri
96, 313-14, 322-24.
approach clearly
This
them
meets
therefore is an
violates the settled constitutional avoid
combatant. Post at 322-29. Without in
doctrine,
that,
ance
requires
which
when
way
denigrating Judge Wilkinson’s ex-
possible,
ever
a statute be
construed
efforts,
tensive
we do not believe that the
avoid
than
rather
“raise serious constitu
approach he
open
advocates is
to us.
problems.”
tional
See Edward J. DeBar
problems
above,
addition to the
set forth
tolo Corp. v. Fla.
Coast Bldg. &
Gulf
several other factors
ap-
make such an
Council,
Constr.
Trades
485 U.S.
proach untenable.
(1988) (col
108 S.Ct.
Given the total
authority
absence of
for
demands,
Constitution
prefers,
that ci-
Judge
approach,
Wilkinson’s
we cannot
it,
rights
vilians be afforded the
adopt
particularly in view the
inherent
Gov-
champion
system.25
ernment’s considered failure to
7, 2008,
A3;
Judge
Hayden’s
Wilkinson also contends that
acknowledgment
at
military
persons
detention of
destroyed
al-Marri and
that the CIA
hundreds of hours of
proper
videotapes documenting
like him strikes the
''balance”
interrogation
between
of two
Qaeda
detention,
prosecution
military
operatives,
criminal
al
sparking separate inves-
way
liberty
tigations
that "the best
by
Department
maximize
for all”
the Justice
and the
Committee,
persons
Intelligence
is to remove such
from the criminal
House
see Mark Maz-
zetti,
justice system so as not to
Destroyed Tapes Showing
"dilute the core
CIA
Interro-
Times,
protections
7, 2007,
Al;
system,
gations,
of” that
and that extend-
N.Y.
Dec.
at
ing
Johnston,
people
criminal
to these
"risks
Mark Mazzetti & David
U.S. An-
pushing the
Inquiry
executive ...
in a more extreme
Tapes,
nounces Criminal
Into CIA
true,
Times,
3, 2008, Al;
direction.” Post at 309-10.
If
N.Y.
Jan.
at Mark Mazzet-
(al-
might
Shane,
provide
philosophical
Tapes’
some sort of
ti & Scott
Destruction Hovers
Cases,
legal) justification
Times,
beit not
for al-Marri’s mili-
Over Detainee
N.Y.
Mar.
2008, Al;
tary
detention. But recent admissions
President Bush's disclosure that
itself,
Qaeda
fact,
Administration
suspects
indicate that
at least fourteen al
were held
military
years, secretly
detention in the recent conflicts
charges,
has
and without
"balance,”
proper
not achieved the
but rather
covert CIA "black sites” outside the United
States,
Sites,
permitted
pursue
very
Mayer,
the Executive to
see Jane
The Black
New
vein,
Yorker,
13, 2007,
46;
"extreme direction.”
Aug.
In this
we note
Sheryl Gay
Hay-
Stolberg,
admission
CIA director Michael
President
Moves Held in Secret to
Qaeda
Guantanamo,
Times,
7, 2006,
den that the CIA
Sept.
waterboarded al
sus-
N.Y.
Al;
pects
intelligence,
public
in order to extract
by Secretaxy
see Dan
admission
Eggen, White House
CIA’sUse Wa-
State Condoleezza Rice that the United States
Defends
Post,
Arar,
terboarding
Interrogations,
Wash.
Feb.
mishandled
case of Canadian
Maher
detention,
without
arrest
V.
process,
criminal
if the
the benefit of
nor our
sum,
the Government
neither
believes these individuals have
President
offered, and al-
have
dissenting colleagues
*32
preparation
“engaged
conduct
searched, we
exhaustively
we have
though
Rapp
international terrorism.” See
acts of
found,
permits
any authority that
have
Declaration. Given that
the Government
empowers
that the AUMF
us to hold
lawfully
that aliens
acknowledged
has now
as an
al-Marri
President
to detain
in the
States have the
residing
United
allega-
If the Government’s
combatant.
process rights as United States
same due
true,
they are for
assume
are
and we
tions
citizens,
claim—and
breathtaking
this is a
al-Marri,
Milligan,
like
present purposes,
of the court
one that no member
embraces.
nation who
enemy of this
dangerous
ais
crimes and associat-
serious
has committed
power,
presidential
To assess claims of
organization that
a secret terrorist
ed with
long recognized,
has
as
Court
But,
against us.
in hostilities
engaged
Kennedy
recently, that
stated most
Justice
a civilian: he
Milligan, al-Marri is still
like
to the “framework” set forth
courts look
bounds
“permissible
fit within the
does not
&
Youngstown
Jackson
Sheet
Justice
enemy combat-
category of
legal
of’ “[t]he
579, 635-38,
Sawyer, 343
Tube Co. v.
n.
at 522
ant.”
(1952) (Jack-
ney General’s
as to the aliens’
“belie[fs]”
threat,
evidentiary
with no
hearing,
judicial
review available
AUMF,
In contrast to the
which is silent
through petition
corpus.
for habeas
Id.
on the detention of asserted alien terror-
captured and
within the
ists
held
United
Recognizing
grant
the breadth of this
States,
Act,
shortly
however,
enacted
Patriot
power,
Congress
imposed
also
AUMF, Congress carefully
after the
stat-
strict limits
the Patriot Act on the dura-
*33
ed how it wished the
to han-
Government
tion of the detention of such “terrorist
dle aliens believed to be
Thus,
terrorists who
aliens” within the United States.
were seized and held within the United
expressly prohibits
the Patriot Act
unlimit-
provides
States. The Patriot Act
the Ex-
detention”;
ed “indefinite
instead
re-
powers
ecutive with broad
to deal with
quires
Attorney
General either to be-
aliens,”
explicitly prohib-
“terrorist
but it
gin
proceedings”
“removal
“charge
or to
its their indefinite detention.
the alien with a criminal offense” “not later
than
days
after the commencement of
Act,
Section
of the Patriot
entitled
such detention.” Id. If a terrorist alien’s
“Mandatory
Suspected
Detention of
Ter-
unlikely
removal
reasonably
“is
for the
rorists,” permits the short-term “[d]eten-
future,”
foreseeable
“may
he
be detained
[ajliens.”
tion of
Patriot Act
[terrorist
periods
for additional
of up to six months”
412(a).
§
The statute authorizes the At-
if his release “will threaten the national
torney
any
General to detain
alien whom
security of the United States.” Id. But no
grounds
he “has
to
reasonable
believe”:
provision of the Patriot Act
for un-
allows
(1) “seeks to enter the United States” to
Moreover,
limited indefinite detention.
any
“violate
law of the United States relat-
the Attorney General
provide
must
ing
espionage
sabotage”
to
or
or to use
legislature
reports
with
on the use of this
“force, violence, or other unlawful means”
authority every
months,
detention
six
opposition
which must include the number of aliens
(2)
States;
United
engaged
“has
a ter-
detained,
grounds
detention,
for their
(3)
activity”;
“likely
rorist
or
engage
is
length
of the detention.
Id.
entry
any
activity,”
after
terrorist
has
412(c).
§
activity,”
“incited terrorist
is a “represen-
tative” or
organi-
Therefore,
“member” of a “terrorist
the Patriot Act establishes a
zation,”
“representative”
is a
a “group
specific
method for the Government to de-
or espouses
endorses
terrorist activi-
tain aliens affiliated
organi-
with terrorist
ty,” or “has
military-type
received
train-
zations who the Government believes have
ing”
Id;
from a
organization.
terrorist
8 come to the
endanger
United States to
our
1182(a)(3)(A)-(B) (West 2007);
§
U.S.C.A.
security,
national
espionage
conduct
1227(a)(4)(A)©,
§
see also 8 U.S.C.A.
sabotage, use force and violence to over-
(a)(4)(B) (West
(a)(4)(A)(iii),
2007). In
government,
ad-
throw the
engage in terrorist
dition, the Patriot Act
activity,
authorizes the At-
likely
engage
or are
in any
torney
any
General to detain
activity.
other alien
Congress
terrorist
could not
engaged
activity
who “is
other
have better described the Government’s
endangers
security
the national
allegations against
al-Marri —and Con-
412(a).
§
United
Act
gress
States.” Patriot
In
decreed that individuals so described
particular, the
permits
Patriot Act
the At-
are
indefinitely,
to be detained
but
the President
argument
grounds its
time,
only by civilian
a limited
only for
al-Marri
power to
has
detain
constitutional
or crimi-
authorities,
deportation
prior
though at oral
alien status. Even
on his
prosecution.
nal
court the
before the en banc
argument
pre
carefully
sum,
Congress
an alien
acknowledged that
Government
it wishes
by which
scribed
States has
resident
the United
legally
with
aliens”
of “terrorist
detention
permit
as an Ameri-
process rights
the same due
States,
expressly
it has
in the United
citizen,
apparently
Government
can
indefinite detention
prohibited
permits the
alien
maintains that
status
here. The Government’s
President seeks
au-
special “peak”
to exercise
President
may indefi
President
argument
like al-
resident aliens
thority
legally
over
contrary to
is thus
al-Marri
nitely detain
so contend
Marri. The Government can
will.
“When
expressed
Congress’s
undisputed and
ignoring the
only by both
incompatible
measures
takes
President
inapposite.
relying on the
will of Con
implied
expressed
had been
that al-Marri
undisputed
It is
ebb, for
at its
lowest
power
gress,
*34
States, was
admitted to
United
legally
consti
own
only upon his
rely
he can
then
university from
attending an American
any
minus
constitutional
powers
tutional
an under-
earlier received
which he had
matter.”
over the
Congress
powers of
residing
legally
and was
degree,
graduate
637,
863
at
72 S.Ct.
U.S.
Youngstown, 343
(with
months
family) for several
here
his
Supreme
(Jackson, J., concurring). As the
him at his
the Government arrested
before
explained,
recently
“[w]hether
has
Court
refus-
in Peoria. The Government’s
home
independent pow
has
not the President
facts
undisputed
acknowledge these
al to
limitations
disregard
may not
... he
er
al-Marri’s status
dooms its contention
has,
of its
proper
exercise
Congress
the Presi-
provides
as an alien somehow
powers.”
on his
placed
powers,
own war
authority to de-
“peak”
special
dent with
Hamdan,
(citing
n. 23
at 2774
126 S.Ct.
rights.
of constitutional
prive al-Marri
637,
at
for asserting authority over al-Marri.
fact,
brief,
elsewhere
its
the
3.
Govern
concedes,
must,
ment
as it
that Eisentrag
In light of
process rights
al-Marri’s due
er and Ludecke do
“have
appli
not
direct
under our
Congress’s
Constitution and
ex-
cation” to al-Marri.
press prohibition in the Patriot
onAct
the
inapposite
The other
on
cases which the
indefinite detention of those civilians ar-
Government
congressional
relies involve
rested as “terrorist aliens” within this
authority over
stemming
aliens
country,
from Con-
we can only
that,
conclude
in the
gress’s power over
hand,
naturalization
im-
case
at
the President
power
claims
migration
special
some
“inherent”
far exceeds
granted
by
him the
—not
authority
constitutional
enjoyed by the Constitution.
President over aliens. See Mathews v.
do
question
We
not
the President’s war-
Diaz,
67, 79-80,
426
1883,
U.S.
48
authority
time
enemy combatants,
over
but
(1976);
478
L.Ed.2d
v.
Harisiades
absent suspension of the writ of habeas
Shaughnessy,
580, 588-91,
342 U.S.
72 corpus, the
simply
Constitution
not
does
(1952).
S.Ct.
not suggest
the President has the
thority over civilians cannot
rest
power
subject
to
to
indefinite
de-
power
President’s
as
commander-in-
tention an
lawfully
alien
residing in this
chief.”). The President cannot eliminate
country.
protections
constitutional
with the stroke
sum,
al-Marri
subject
not a
of a
of a pen
proclaiming
civilian,
even a
country with which the United
civilian,
States is at
criminal
an enemy combatant sub-
course,
does not mean
Put
Of
military detention.
to indefinite
ject
na-
protect
to
our
power
lacks
President
empower
does
Constitution
simply, the
people,
defend our
interests and
tional
military to seize
to order the
President
abide
doing
so he must
only that
the United States
residing within
civilians
and do not
understand
We
Constitution.
crimi-
indefinitely without
them
and detain
threat
in-
way
grave
minimize the
if he calls
so even
and this is
process,
nal
country
poses to our
terrorism
ternational
combatants.”
“enemy
them
security. But as Milli-
our national
purpose
A “well-established
teaches,
within the
government,
“the
gan
military strict-
keep
“to
Founders”
Constitution,
powers granted
has all the
subordinate
sphere,
ly
proper
within its
its
it,
necessary
preserve
are
which
Reid,
354 U.S.
authority.”
civil
121. Those words
existence.”
U.S. at
Indepen-
1222. In
Declaration
S.Ct.
cen-
clearly
twenty-first
in the
resound
lodged the com-
dence, our forefathers
they did in
nineteenth.
tury as
Britain had
King
that the
Great
plaint
Thus,
plenary
plainly
the President
Military indepen-
to render the
“affected
military against
our
authority
deploy
power”
the Civil
superior to
dent of and
Curtiss-
enemies overseas. See
terrorist
“deprived]
King
that the
had
objected
216;
319-20, 57 S.Ct.
Wright,
cases,
of Trial
the benefits
many
us
789, 70
339 U.S. at
Eisentrager,
also
see
Indepen-
by Jury.”
Declaration of
re
Similarly, the Government
1776).
(U.S.
Thus,
paras.
dence
country against
our
free to defend
mains
authority
that civilian
conviction
resolute
within,
con
using all the
enemies
terrorist
military animated
govern
should
“the well-stocked statuto
powers
siderable
Alexander
As
framing of the Constitution.
affords. Ham
law
ry arsenal” of domestic
ob-
Hamilton,
power,
no foe of executive
(Souter,
di,
ians.”
U.S.
S.Ct.
War,
of the Civil
President Lincoln defend-
Tatum,
1, 15,
see also Laird v.
92 ed his emergency suspension of the writ of
(1972)
2318,
ment, I would reverse the district court’s protect defense and to United States citi- petition dismissal of al-Marri’s habeas (em- zens both at home and abroad.” Id. evidentiary remand proceed- for further added). phasis ings is, on the issue whether al-Marri Having determined that the attacks 9/11 fact, subject mili- by operatives Qaeda were inflicted of al tary detention. country
who were sent to our to attack us Background within, I. Qaeda heavily from and that al was supported and harbored the Taliban well-known, tragically Sep- As is now government Afghanistan, the President 11, 2001, operatives Qaeda tember al responded militarily against both entities hijacked terrorist network commercial air- by ordering Afghani- our armed forces to liners on the East Coast and launched an stan. States, attack upon successfully the United striking the World Trade Center and the 10, 2001, September day On before Pentagon, airliner, crashing a third Qaeda’s al devastating upon attack our believed to have been bound for an addi- homeland, al-Marri entered the United D.C., target Washington, tional in Penn- States from abroad with his wife and chil- sylvania. 3,000 Approximately civilians dren, ostensibly purpose for the pursu- were killed as a result of these war-like ing a degree Bradley University in Peo- attacks. ria, later, Illinois. Two months FBI
One week after these devastating at- agents arrested al-Marri as a material wit- tacks, AUMF, Congress passed the provid- ness in investigation at- 9/11 ing that In the investigation, tacks. course of their
the President
authorized
use all
the authorities discovered that al-Marri
necessary
appropriate
rarely
attending
university
classes
force
nations, organizations,
those
or persons
failing
and was
his courses. Additional
authorized,
he
planned,
determines
investigation
being
com-
resulted
al-Marri
mitted, or aided the
charged
terrorist attacks
with several federal criminal of-
*39
“it
nel,
that
is
or citizens” and
and trial
guilty
pled not
Al-Marri
fenses.1
States that
Sec-
interest of
United
court of
in
district
begin
to
was set
an
detain
ene-
retary
[him]
of Defense
July
2003.
Illinois
J.A. 54.
my combatant.”
however,
President
June
On
declaration, the gov-
wake of this
In the
“is,
al-Marri
Bush declared
George W.
successfully moved to dismiss
ernment
the United
he entered
the time
and at
in the district
pending
criminal indictment
was,
September
States
Illinois,
security
asserting national
court of
to the
According
J.A. 54.
combatant.”
that al-Marri be trans-
required
interests
declaration,
is close-
“al-Marri
presidential
custody.2
military
from civilian to
ferred
an internation-
Qaeda,
al
with
ly associated
custody of
to the
Al-Marri was transferred
with which
organization
al terrorist
transported
Secretary of Defense
“engaged
is at war”
United States
Brig in Charles-
to the Naval Consolidated
and war-
hostile
that constituted
conduct
military
ton,
remained
where he has
acts,
preparation
including conduct
like
combatant.
custody as
had
international terrorism
of
for acts
two
July
approximately
adverse ef-
injury to or
On
to cause
the aim
from
transferred
The
after al-Marri was
J.A. 54.
weeks
on the United States.”
fects
custody,
legal
al-Marri’s
“al-
civilian to
additionally
President
declared
for a writ of habeas
petition
counsel filed
in-
including
intelligence,
possesses
Marri
chal-
court of Illinois
corpus in the district
and activities of
personnel
about
telligence
al-
designation and
lenging
President’s
that,
to the
if communicated
Qaeda
al
by the mili-
continued detention
Marri’s
States],
States’]
aid [United
would
[United
eventually
was
dis-
tary.
petition
The
Qaeda on
by al
attacks
prevent
to
efforts
jurisdiction, see Al-
lack
missed for
of
forces,
armed
or its
States
United
(7th Cir.
Rumsfeld,
summarized the asserted even national intelligence and if the allegations true, other were investigative federal the President information lacked upon authority which the President detain him his as an rested deter- However, mination combatant. that al-Marri simply was not al-Marri also denied man bent on committing the factual allegations criminal supporting activities his clas- for personal reasons or gain, but an sification and al asserted that he was “enti- Qaeda operative or dispatched soldier to tled to a fair opportunity to rebut country perpetrate or facilitate ad- factual assertions which his classifica- petition initially Al-Marri's set forth two The district ruled court that al-Marri's claims claims, asserting additional that he de- deprivation was right of his to counsel and nied the right to unlawfully counsel and in- interrogation unlawful cognizable were not terrogated. filed, petition When his was al- the habeas action. currently pur Al-Marri is Marri being claimed that he was suing action, held incom- separate these claims Al- municado Brig, Naval without Rumsfeld, access Marri v. C.A. No. 2:05-cv-02259- counsel, to his provided (filed that he had 2005), been Aug. HFFRSC which is still opportunity no designation contest pending before district court. See Al- combatant. He subsequently Wright, Marri v. F.Supp.2d 2n. granted access to (D.S.C.2006). counsel in October 2004.
257 alleged wrongdoing. government The based his combatant’ ‘enemy [was] as an tion that both the AUMF and the counters hearing conducted evidentiary to an authori- President’s inherent constitutional require- the fundamental with consistent ty allowed for the detention. im- including, most process, of due ments and cross- to confront right the portantly, A. him.” against J.A. the witnesses
examine al-Marri, “[ajnything According to 69. my colleagues, out the pointed by As process to due right make his would less persons affords all generally Constitution 69. illusory.” J.A. right government detained proceed in a criminal charged and tried below, the in more detail As discussed pro and it suspected wrongdoing, for ing al-Marri’s assertion rejected district court subjecting in from hibits authority to lacked the the President arrested the United States dividuals inside combatant, Al- enemy see him as an detain military they unless fall with (D.S.C. detention F.Supp.2d 673 Hanft, v. 378 Marri exceptions. in certain narrow See United decision, 2005), and, dismissed al- in a later Salerno, 739, 755, 107 v. U.S. States 481 its de upon based petition habeas Marri’s (1987) (“In 697 our S.Ct. 95 L.Ed.2d failed to rebut that he had termination norm, society liberty is and detention designation allegations upon which careful trial or trial is the prior to without 443 rested, Wright, v. see Al-Marri exception.”). The detention of ly limited (D.S.C.2006). appeal, On F.Supp.2d enemy during military hostili combatants de district court’s challenges the al-Marri ties, however, exception. an If such detain President can that the termination enemy designated an combatant properly and, in the as an combatant him legal authority of the Presi pursuant afford alternative, that he was not asserts dent, may be detained with persons such to contest his meaningful opportunity ed a proceedings “for charge or criminal out in turn. I each issue address status. Ham hostilities.” duration of the relevant Authority Rumsfeld, to Detain v. II. The di (2004). 2633, 159 L.Ed.2d denial court’s begin I district first considered Court summary judg- motion for al-Marri’s such au- that, grant of breadth of the AUMF’s its determination upon based ment originated which thority a case Dec- Rapp assuming allegation captured by was true, from this circuit. Hamdi pos- President to be laration over and turned Afghanistan allies in the AUMF to our legal authority under sessed there. When it military personnel in to our an combatant al-Marri as detain he was United was discovered that Qaeda though al- war al even birth, was trans- Hamdi citizen crossed our bor- States successfully had Marri States for continued to the United country ported residing within ders and Al-Marri, A of the Court here. plurality detention the time of his seizure. fought against who ruled that “individuals Al-Marri asserts F.Supp.2d 680. Afghanistan part as authority to the United States legal lacks the President Taliban, known have organization him designate and detain as Qaeda terrorist network the al supported into cus- was taken because he attacks, are indi- result, and, responsible 9/11] for [the tody in the States United target pass- sought to Congress viduals accompa- and its enjoyed “civilian” status the AUMF.” Id. ing to full criminal nying rights specifically did not different context. There we held Although the AUMF detention, enough to authorize the AUMF was broad plu- authorize such Padilla, military detention of Jose “a citi- that detention of indi- rality “conclude[d] *42 country closely who is associat- zen of this category limited we falling viduals into the Qaeda, entity ed with al an with which the considering, for the duration of the are war; at up United States is who took arms they cap- in particular conflict which were enemy against of that on behalf and our tured, accepted is so fundamental and country foreign in a combat zone of that an exercise of the incident to war as to be war; and who thereafter traveled to the Congress force’ ‘necessary appropriate and purpose United States for the avowed of Id.-, has authorized the President to use.” on prosecuting further war American (“Be- 519, id. at 124 2633 see also S.Ct. soil, against American citizens and tar- prevent cause detention to combatant’s gets.” holding, Id. at 389. In so we also is a fundamental return to the battlefield upon relied the decision Court’s war, waging permitting of in incident Quirin, military which dealt with “the force,’ ‘necessary appropriate use of and Haupt, trial of a United citizen who States clearly unmistakably au- Congress has country entered with orders from th[is] thorized detention in the narrow circum- up the Nazis to blow domestic war facili- here.”). stances considered captured ties but was before he could exe- “part support- Because Hamdi of or Noting cute those orders.” Id. at 392. ing forces hostile to the United States or that, Haupt, Padilla associated with “[l]ike partners Afghanistan coalition and who military enemy, arm of the and with its engaged in an conflict against armed aid, guidance, and direction entered this there,” 124 United States id. S.Ct. country committing bent on hostile acts on (internal omitted), quotation marks 2633 soil,” American we held that Padilla “falls that, plurality though concluded even Quirin’s enemy within definition bellig- he was a United States citizen detained erent, as well as within the definition of country, clearly within this he fell within equivalent [enemy term ac- combatant] the legal category “enemy of those com- cepted by plurality in Hamdi.” Id. However, batants” who be detained. We concluded: rejecting course of Hamdi’s claim States, Congress of the United citizenship prohibited that his his deten- Military the Authorization for Use of combatant, enemy tion plurality Resolution, Force provided Joint recognized precedent also Court’s powers necessary all ap- President Quirin, parte Ex 317 U.S. 87 propriate protect American citizens ‘[cjitizens (1942), L.Ed. 3 which “held that from terrorist acts those who at- military who associate themselves with the September tacked the United States enemy arm government, and with its expected, 2001. As would be and as aid, guidance and direction enter this coun- held, the Supreme pow- Court has those try enemy belliger- bent on hostile acts are power ers include the to detain identi- ... meaning ents within the the law of fied and committed enemies such as Pa- ” Hamdi, war.’ 124 S.Ct. dilla, Qaeda al who associated with Quirin, (quoting regime, up the Taliban who took arms 2). against against this Nation its war enemies, This court scope also considered the these and who entered the Hanft, the AUMF in Padilla v. purpose 423 F.3d for the United States avowed (4th Cir.2005), in a prosecuting albeit somewhat further that war attack- foreign country targets on our our citizens and ing American Padilla, which, combat zone of war.” Con- power soil—a without own added). (emphasis F.3d at 389 understood, could President gress citi- protect American unable to well be savage attack very kind
zens from
by my
out
col-
accurately pointed
almost
As
years ago
four
that occurred
leagues,
alleged
combatants in
day.
affiliated
Hamdi and Padilla were
reversed the
we
Accordingly,
at 397.
Id.
government,
arm of an
the de-
court’s determination
district
of Af-
specifically
the Taliban
by the President was
of Padilla
tention
*43
alleged
of the
com-
ghanistan. By virtue
necessitating addi-
support,
legal
without
gov-
the
batant’s affiliation
Taliban
with
proceedings below.4
tional
ernment,
required
neither
was
to
court
B.
whether
affiliation with al
decide
their
Padilla,
and,
the
Qaeda
in the case of
neither
colleagues, agree
I
that
my
Like
carry
to
additional terrorist
mission
out
compels the conclusion
nor Padilla
Hamdi
country, would also have
acts within this
the President
the
authorized
AUMF
that
enemy com-
supported their
as
detention
combatant,
al-Marri as an
detain
batants.
I dis-
they
provide guidance.
do
although
however,
there is no
however,
Milligan,
my opinion,
that Ex Parte
agree,
(4 Wall.)
(1866),
dispatched
are
doubt that individuals who
L.Ed. 281
71 U.S.
by Qaeda,
organization
here
al
the
known
Having
conclusion.
opposite
compels
cases,
upon
have carried out the
attacks
as well as
carefully considered these
9/11
country,
agents and terror-
Quirin,
sleeper
I
our
as
Supreme Court’s decision
with the task
operatives
ist
charged
the AUMF also
opinion
that
am
upon
attacks
our
authority
committing
to de-
additional
the President
grants
Congress
“are
individuals
associate
homeland
[also]
who
combatants
tain
target
passing
the AUMF.”
entity
sought
with
Qaeda,
al
“with
themselves
518, 124
war,”
S.Ct. 2633.
542 U.S. at
is at
and
the United States
which
Hamdi
States “to
Citing
right
the United
for the
to the United States
“travel[]
citizens both at
protect United States
prosecuting
of further
purpose
avowed
abroad,”
AUMF authorized
soil,
home and
against Ameri-
war on American
that
necessary
of “all
though the
the President’s use
targets,” even
citizens and
can
nations
against”
force
appropriate
the com-
cannot
that
establish
government
authorized,
“planned,
organizations
on behalf of that
up
also “took
arms
batant
Padilla,
Court,
we believe that this
gov-
and also
ruling
because
Shortly after our
especial
presents
nation-
an issue of such
authorization to
case
filed a motion for
ernment
importance
warrant final consider-
custody
al
as to
military
to civil-
Padilla from
transfer
court,
only by denial
by
if
ation
even
custody
suggested that we withdraw
ian
Hanft,
v.
432 F.3d
review.”
the motion and
further
Padilla
prior opinion. We denied
our
therefore,
Cir.2005). We,
(4th
ex-
noting
of Padilla
suggestion,
the transfer
“that
any
to termi-
pressed the view
decision
opinion at the
our
and the withdrawal of
by
not
litigation “should be made
Supreme
nate the
government’s request while the
but, rather, by
Supreme Court.”
court
reviewing
decision ...
this
court’s
Court is
subsequently
is,
Supreme Court
Id. at 584. The
compound
in the absence
would
what
government’s motion to transfer.
granted the
appearance
explanation,
least
Padilla,
v.
attempting
con-
to avoid
Hanft
(2006).
Supreme
Iraq, they but have also allies, bent on those of our
borders and
minimum, sabotage
committing, at
If
Declara-
allegations
Rapp
military
targeting
war-like acts
both
other
true, I
al-
tion are
am also of the view that
and citizens.
and civilian installations
category
Marri would fall within the
single nation
they do not hail from a
While
lawfully
pur-
persons who
detained
state,
really
are not
so dissimilar
they
authority
granted
suant
to the
united
from the multi-national
forces
AUMF.
allies in
States and its
against the United
According
Rapp,
al-Marri was not
wars that we are more
the conventional
simply
lawfully
a civilian who
entered the
discussing.
they
And when
comfortable
residing peacefully
and was
United States
to attack
our borders with the intent
cross
pursuing
higher
here while
educational
those
country from within on behalf of
our
Nor,
matter,
goal.
for that
was he a civil-
forces, they
appreciably
different
are
al-Qaeda’s
sympathetic
ian who became
Quirin,
who infiltrated
from the soldiers
sought
support
mission and
indirect
sabotage
to commit acts of
our borders
ways.
certainly
And he was
not a common
here—
against our
installations
*45
committing
criminal bent on
criminal acts
inform
although
history
intelligence
as
and
personal
gain.
reasons or
On the con-
for
us,
only our
Qaeda
target not
al
soldiers
are that al-Marri di-
trary,
allegations
installations,
the citizens
military
but also
abroad,
Qaeda
al
rectly allied himself with
country. Nor does it matter that
of this
(including a
assignments
volunteered for
actually committed or at-
“they have not
mission),
any
martyr
training
received
and
tempted
depredation
to commit
act of
abroad,
funding
Qaeda
the theatre or zone of active
from al
was dis-
or entered
Quiñn,
military
317 U.S. at
operations.”
patched by Qaeda
al
to the United States
they
this coun-
Hamdi was captured on the battlefield in
respondent
“direct[s]
to show cause
allies,
Afghanistan by our
why
transferred into
granted,”
the writ should not be
28
military custody,
2243,
our
transported
§
and then
places
U.S.C.A.
which
the burden
States,
to the United
a
peti-
upon
where
habeas
person to whom the writ
“[t]he
or
tion was filed on his
In support
behalf.
of order is directed
make a
[to]
return certi-
designation
Hamdi’s
an enemy
fying
detention,”
combat-
true cause of the
id.
ant,
government
hearsay
filed the
provides
dec- Section “2243
person
‘the
Mobbs,
laration of
Special
oath,
Michael
may,
Advisor
detained
under
deny any of the
Secretary
to the Under
of Defense for
facts
in
allege any
set forth
the return or
facts,’
ing
private
“the
interest
that will be
§ 2246 allows the
other material
proceedings
by
against
evidence
habeas
affected
the official action”
taking of
affidavit,
interrogatories.”
interest,
by deposition,
[g]overnment’s
asserted
525,
at
factual assertions that, these core aside from demand 533, 124 542 U.S. at sionmaker.” opportunity and an notice [of elements that protections full “[T]he 2633. heard], enemy-combatant proceed- to be oth- challenges to detentions in accompany to alleviate their ings may be tailored and in- settings may prove unworkable er the Exec- potential uncommon to burden enemy-combatant set- appropriate the ongoing military con- utive at a time of recognized, but “the ting,” plurality the example, may need Hearsay, flict. by a military operations posed threats to accepted as the most reliable avail- to be review are not system independent of basic [gjovemment the able evidence from core weighty trump as to a citizen’s so Likewise, proceeding. the Con- such meaningfully [g]ov- rights challenge by not be offended stitution would by an case and to be heard ernment’s [g]ovem- presumption favor of 535, 124 adjudicator.” Id. at impartial evidence, pre- that long so ment’s added).5 (emphasis S.Ct. 2633 one sumption remained a rebuttable detain- Because Hamdi was a battlefield opportunity pro- fair for rebuttal were nation, foreign in a the core of captured ee Thus, [gjovernment once the vided. that the government’s argument was ha- puts forth credible evidence that the “heightened need for lessened petitioner enemy-com- meets the beas ac- by difficulties that would practical criteria, the onus could shift to batant system process.” trial-like company a petitioner to rebut that evidence 531,124 Specifically, Id. at S.Ct. 2633. that he persuasive with more evidence argued “military officers criteria. A burden- falls outside the engaged who are the serious work shifting scheme of this sort would meet unnecessarily would be waging battle errant goal ensuring half a dangerously litigation distracted tourist, journalist, or local aid embedded away, discovery military into world prove military a chance to worker has intrude on the sen- operations would both giving regard while due to the error defense and result sitive secrets national put meaning- Executive once it has forth in a futile search for buried under evidence support ful for its conclusion the rubble of war.” Id. in fact an combatant. detainee is S.Ct. 2633. Mathews, process words of of this Mathews, sufficiently address the “risk plurality dictated sort would As a detain- deprivation” account of these burdens in of an erroneous took stake, eliminating recog- liberty ee’s interest while weighing interests that, balancing competing procedures questiona- when certain have nized they concurring opinion, concurring justices indicated that partially In a Justice ble joined "disagree plurality’s Ginsberg with the deter- Souter and Justice would *48 (given plurality's plurality ordering the view of the remand to "allow Hamdi minations [AUMF]) position that someone in Hamdi’s is to offer evidence that he is not an Hamdi, [g]ov- the 542 U.S. at entitled at a minimum to notice of combatant." (Souter, holding concurring part). Al- claimed factual basis for S.Ct. 2633 ernment’s him, adopt plurality’s a though they declined the and to a fair chance to rebut before to issue, precise process decisionmaker.” Id. resolution of the due neutral ble value in light additional the bur- tuent was denied was constitutionally suffi- cient. [government. den on the Although the rejected district court al-
Hamdi,
With
I
these
turn to cause
many
the factors weighing against
proceeding
the habeas
by the
conducted
expansive discovery that
appropriate
were
case,
district court in al-Marri’s
and the
in Hamdi would not apply to him because
question of whether
process
accorded Hamdi
by
had been seized military officers
him after his motion
summary judg-
for
Hamdi,
a combat setting.8 Unlike in
al-
August
6.
following
Supreme
tutionally adequate
corpus
habeas
proceed-
Court's June decision in
remanded
ing....
circumstances,
we
[Dlepending on the
Virginia
to the
case
Eastern District of
required.”
may
more
be
Id. As noted
proceedings
further
consistent with the Su-
Court,
was,
corpus
"common-law habeas
preme
By
Court's decision.
October
all,
adaptable
above
remedy.
precise
Its
parties had settled the matter. Hamdi was
application
scope changed
depending
Arabia,
transported to Saudi
released from
upon
(emphasis
the circumstances.” Id.
add-
custody,
United States
petition
and his
dis-
ed);
(Roberts, C.J.,
see also id. at 2283
dis-
settled,
prejudice
missed with
with no fur-
("Because
senting)
purpose
the central
of ha-
ther
pro-
consideration of the issue of what
corpus
legality
beas
is to test the
of executive
cess was due Hamdi on remand.
detention,
requires
the writ
most fundamen-
tally an
III
Article
court able to
hear
7. The
Court’s recent decision in
and,
prisoner's
necessary,
claims
when
order
Bush,-U.S.-,
Boumediene v.
that,
Beyond
process
given
release.
(2008), believe,
would allow the
any person
militarily
(including
detain
country)
within this
American citizens
a
observation of
begin
general
I
solely with
support
military
such
detention
ruling
district
breadth of
below.
offi-
hearsay
government
declaration of
Hamdi decision
concluded that
court
information
cial who has no first-hand
surrounding
facts
not limited
regardless of whether
about the
and that
the Su-
apprehension
Hamdi’s
detainee —
readily
available
more reliable evidence
framework to
its
preme Court
intended
such evi-
presentation
or whether
by an
petition filed
every
habeas
apply
upon
impose any burden
dence would
this broad
enemy combatant. On
alleged
at all with its war
or interfere
government
quarrel. How-
point,
particular
I have no
security
or national
efforts.12
ever,
the district court
premise,
from this
power to detain
guidance
did not affect the President's
from Padilla on this
11. I find no
Padilla,
nor the
question.
Padilla "as-
neither this court
particular
Like
capture
place
the United
with forces
Court has held that the
does
sociated
hostile
Afghanistan
up
and took
arms
States in
constitutional
not affect the minimum
in that coun-
against the United States forces
due.
Qaeda.” Padilla,
try
war
al
in our
(which might also en-
12. Once such evidence
al-Marri, Padilla
Here,
available
the
government
the
asserts that the
government
produce
can
without
Declaration,
undue
Rapp
which summarizes the
burden or serious jeopardy to either its
intelligence gathered on al-Marri’s activi-
war
or
efforts
its efforts to ensure the
Qaeda
ties as an al
operative, is sufficient
national security of this nation.
to meet its initial burden of proving that
properly
al-Marri was
designated an ene-
3.
my
However,
combatant.
unlike in Ham-
di,
government
the
presented
context,
the
In this
the
prohib-
Constitution
Rapp
It
Declaration.
has made no at-
its subjecting an individual inside the Unit-
tempt to show that
hearsay
this
evidence
ed
States to
detention unless he
accepted
“need[s] to be
as the most reli-
legal
fits
category
within
of an enemy
able available
[gjovern-
evidence from the
in
against
the armed conflict
al
ment,”
533-34,
id. at
Qaeda
S.Ct.
or
its supporting
or
nations.
If the
protections
additional
to ensure that
allegations contained
the Rapp
within
Dec-
the innocent are not
by
true,
detained
mili-
our
laration are
then al-Marri fits within
tary would be “unworkable and inappropri-
exception
and can be properly desig-
enemy-combatant
ate
th[is]
setting,” id.
nated
militarily
combatant and
In these uncertain we (Per for na- tion as an combatant.” Cu- carefully balancing when our need
277
216). Further,
join
I
in
Op.
Judge
riam
Court and Fourth Circuit precedent,
in-
respect
concurrence.
I
cluding
Motz’s
While
our
in
decision
United States v.
my
opinions
Moussaoui,
(4th
and tireless work of
col-
Cir.2004),
nate level of due
I.
liberty.
denial of his
And it is the role of
provide
guidance
clear
as to
Court
American,
Every
clearly
unless
abro-
process.
of that due
contours
gated by congressional act
deprived by
law,
process
due
right
attack
has a
to free-
The horrific
resulted
9/11
AUMF,
right protected by
dom—a
the writ of ha-
congressional passage of the
corpus.1
beas
Specter,
Senator Arlen
far-reaching
power upon
most
bestowal of
introducing a bill to restore habeas corpus
the Executive since the Civil War. The
to all aliens detained within
territory,
AUMF authorizes the President to “use all
reminded us that the
necessary
against
right
force
venerated
appropriate
corpus
habeas
“a
persons”
right
...
which has existed
connection—however
Anglo
jurisprudence
King
Saxon
attenuated that connection
be—to the
since
Runnymede.”
John
1215 at
“prevent any
Cong.
attacks
order to
fu-
9/11
(December
2006).
Rec. S 11196-01
ture
attacks
...
In-
[terrorist]
deed,
the writ is so
United States.”
No.
cherished that it has
Pub.L.
(2001).
below,
been referred
Stat. 224
As I
Blackstone as “the
discuss
conduct,
law”,
most celebrated writ in
punishes
English
AUMF
status.
Blackstone,
Therefore,
*129,
the location and
William
Commentaries
citizenship of a
reverence echoed
putative enemy
Supreme
should
no
Court.
be of
conse-
Bollman,
parte
75, 95,
Ex
quence in
Cranch
determining the level of due
(1807)
process
(describing
L.Ed. 554
the writ of
combatant detained
“[Gjreat [W]rit.”)
AUMF,
corpus
in America
habeas
as the
under the
like al-Mar-
ri, should receive.
Alexander Hamilton lauded “the estab-
majority
my
colleagues agree
lishment of the writ of habeas corpus”
person
that a
along
prohibition
al-Marri’s status is enti-
with “the
ex-post-facto
laws,
process
tled to more due
than that which
and of TITLES OF NOBILITY” as
received,
unfortunately,
he
but
there is no
“greate[st]
the Constitution’s
securities to
guidance
pro-
concrete
as to what further
liberty
republicanism.”
The Federal-
(Alexander Hamilton)
cess is due. Little doubt exists that this
ist No. 84
(emphasis
judgment
also,
Bush,
will leave
original);
the district court with
see
Boumediene v.
(“That
questions
more
than answers.
In deciding
preclude the establishment of a Nation
Judge
While
Traxler states that “it is
capable
governing
effectively.”
of
itself
likely rights
constitutional
our
Valeo,
1, Buckley v.
96 S.Ct.
exist,
exist,
court determines
or do not
for
(1976)
curiam).
612, 46
(per
L.Ed.2d 659
apply equally
al-Marri will
to our own
when,
here,
particularly
This is
true
citizens under like circumstances” ante is,
adjudication.
situation
It
demands
(Traxler, J.,
in
concurring
judgment)
question,
without
province
sole
of the
added),
(emphasis
beyond peradven-
is
judicial branch
to determine what
ture that the Constitution will furnish an
Boumediene,
should receive. person
a
citizen,
American
detained under these cir-
(holding
B. by which the district court should make its While the Hamdi court held “full determination, evidentiary we need not de- protections that accompany challenges to velop framework from whole cloth. Su- detentions in other settings may prove preme Court and Fourth prece- Circuit unworkable inappropriate in the ene- dent, when alongside CIPA, considered my-combatant setting,” 542 U.S. provides Judiciary with a step-by-step *63 added), at 124 (emphasis S.Ct. 2633 guide for balancing the security national may this not be the case for al-Marri. country interests of the with individual due Determining “workability” the providing process rights.
al-Marri with first-hand evidence sup- port critical, Rapp the Declaration is espe- C. cially in light of the harsh conditions to Ali, presciently which Abu we subject. combatants are set forth As the out, my colleagues following point al-Marri was statement on the nei- treatment of system: ther terrorists our criminal arrested on the battlefield in some far-flung location alleged nor were his good Persons of will disagree over criminal activities centered abroad. More- precise extent to which the formal over, us, from the information available to justice process criminal must be utilized al-Marri’s crimes relate defrauding when suspected those of participation in American financial lying institutions and terrorist cells and networks are in American law Nothing enforcement. volved. There should no disagree be the record undermines al-Marri’s conten- ment, however, justice that the criminal tion that majority of evidence relied system does retain an important place in upon by the posses- Government is in ongoing effort to punish deter and sion of governmental U.S. agencies. If terrorist acts without the sacrifice of case, proves this to be obtaining such American constitutional norms and bed “workable,” evidence should be “fair- and rock values. As will be apparent here requires in-camera, ness” ex-parte re- in, justice the criminal system is not Boumediene, view of such evidence. See adaptation without those attributes of (“Practical 128 S.Ct. 2275 considerations permit that will it to in the function exigent and circumstances inform the defi- post-9/11 world. These adaptations, nition writs, and reach of the law’s includ- however, need not and must not come at ing corpus.”). habeas the expense requirement that an in-camera, During ex-parte proceed- accused receive fundamentally fair ing, the Government could present evi- trial5 Moussaoui, AUMF, 5. Like Abu Ali tried process pro- under the find I that the judicial system. civilian Because both Abu vided to them is informative. Ali and Moussaoui could have been detained 282 court with added). provides the Attorney General Ali, (emphasis 221 528 F.3d
Abu
proceeding
why
public
“that
for
well-equipped
reasons
system is
judicial
Our
classified
efficiently and
to the disclosure
may lead
material
handle classified
6(a).
§
evi-
right
U.S.C.App.
to review
accused’s
information.”6
balance
security interests.
national
against
dence
proce-
clear
sets out a
6 of CIPA
Section
319, 96
Eldridge, 424
v.
In Mathews
utilize
court to
the district
dure
(1976), the Su-
L.Ed.2d 18
and determin-
evidence
handling classified
“dictate[ed]
preme Court
admissibility.”
“use,
relevance
ing its
instance is determined
given
due
6(a).
court
If the district
§
U.S.C.App.
that will
private
interest
weighing
relevant
information
the classified
finds
action
by the official
affected
the dis-
material,
requires that
CIPA
interest,
including
asserted
Government’s
unless an
give it to the accused
trict court
the burdens
involved and
the function
provided.
can be
adequate substitute
great-
providing
would face
Government
Moussaoui,
In determin-
F.3d at 476.
529, 124
process.”
er
information,
accessibility
such
ing the
(internal
marks
quotation
5.Ct.
cogni-
“take[]
district
should
court
omitted).
much of
Because
citation
in pro-
the state’s interest
zance of both
readily
may be
requests
al-Marri
evidence
the defen-
security
tecting national
would
available, assuming that evidence
a fair trial.”
receiving
dant’s interest
ability to
Executive’s
compromise
Fernandez,
F.2d
v.
United States
provide
should
war,
Government
wage
*64
Cir.1990).
(4th
154
court.
it to the district
interests
competing
weighing
When
i.
accused, com-
and the
Government
calculus,
helpful,
albeit
The Mathews
protecting
disclo-
privileges
mon law
unanswered, partic-
questions
many
leaves
apply.
continue
of evidence
sure
concerning
the district
how
ularly those
Smith,
F.2d
v.
United States
informa-
assess
classified
court should
(en banc).
(4th Cir.1985)
Thus, com-
of national
“In the area
tion’s relevance.
in-
classified
protecting
privileges
mon law
privilege
security
government’s
account
disclosure on
formation from
public
from
information
protect classified
applicable.
secrets remain
or state
for
disclosure,
to CIPA
look[ed]
[have]
we
CIPA,
However,
we held
context of
Ali, 528
Abu
procedures.”
appropriate
clas-
if the
“give way”
would
privilege
enactment,
Prior to CIPA’s
F.3d at 245.
helpful
“is relevant
information
sified
in the unenvia-
placed
the Government
is essential
of an accused or
to the defense
prosecution
“abandoning]
position of
ble
Id. at
aof cause.”
to a
determination
fair
of clas-
possible
rather than risk
disclosure
(internal
citation
quotation marks
(internal quotation
Id.
information.”
sified
added).
omitted) (emphasis
omitted). By structur-
marks and citation
evaluating the use and
for
ing a framework
ii.
without
of classified evidence
admissibility
access
the accused
provides
CIPA
disclosure,
di-
CIPA alleviates
public
documents,
witnesses.
to classified
any hearing
con-
provides
It
lemma.
that,
Moussaoui,
held
Nevertheless, in
we
if the
be held in-camera”
ducted “shall
6(d).
U.S.C.App. §
ings. 18
court to
allows the district
6. Section
also
proceed-
from
in-camera
seal the records
directly
Executive,
applicable,
high-level
was not
may
while CIPA
members
onerous,
Moussaoui is an
prove
a useful framework for consider-
indeed
“provides
ing
questions
raised
Moussaoui’s excellent template for the district court.
enemy
how,
for access to the
combatant
It
request
demonstrates
in consultation with
Moussaoui,
at 472 n.
parties,
witnesses.”
382 F.3d
the relevant
a court can craft rem-
Similarly,
directly appli-
CIPA is not
edies that satisfy
combatant’s
to al-Marri’s case
he is not unique evidentiary requests
cable
because
without undu-
“equivalent
a full
ly burdening
entitled to the
blown”
the Government or compro-
524, mising
criminal trial.
542 U.S. at
security.
national
Ultimately,
Yet,
certainly
giving
S.Ct. 2633.
CIPA can
al-Marri
opportunity”
a “fair
to dis-
guide the district court’s consideration of pute
designation
as an enemy combat-
ant,
evidentiary requests
al-Marri’s
especially
the district court should “seek a solu-
given that
primarily requests
al-Marri
doc-
tion that
disadvantages
neither
[al-Marri]
(and
uments.
nor penalizes
public)
protecting
classified information
Additionally, we held that Moussaoui
be vital to
Id.
security.”
national
qualified
should have
to material
access
at 477.
enemy combatant witnesses and their pri-
statements.
order to establish the
III.
relevance,
witnesses’
he
had to make
a “plausible showing”
materiality.
If our remand is to be meaningful, the
Moussaoui,
(internal quo-
As a could in-camera, fear, place ex-parte take In angst hear- this time of and we can ing responds where the Government to al- find solace and wisdom the words of requests Marri’s kept information and ex- Thomas Jefferson —words that have plains why security pre- national concerns our principles nation’s focus on noble disclosing clude evidence. Speaking While some of the worst of times. at his First requests, depose al-Marri’s such Inaugural, “protec- as to Jefferson included the court, I and district would judge istrate among “prin- those corpus” tion of habeas challenge now that al-Marri cannot bright constellation hold form the ciples [which] our detention before guided us and factual basis for his gone before which has Judge and like age Accordingly, of revolution court. Wilkin- through our steps Niemeyer, we wander I would affirm Judge ... and should reformation son § of error or of 2241 petition in moments of al-Marri’s from them the dismissal alarm, steps our judgment to retrace let us hasten therefore dissent from alone leads to the road which regain and to of the court. safety.” Thomas Jef- liberty, and
peace,
Address,
March
ferson,
Inaugural
First
I.
to “retrace
the district court
urge
I
this case on
A.
it considers
steps”
our
remand.
attacks,
September
Following
18, 2001, enacted
Congress,
September
on
WILLIAMS,
Judge, concurring
Chief
AUMF,
authorized the Presi-
which
dissenting
part:
part and
Commander-in-Chief,
dent,
acting as
thor-
lengthy
I
respect
While
necessary
force
appropriate
all
“use
case, I
in this
believe
ough writings
nations, organizations, or
those
al-Marri’s 28 U.S.C.A.
Aii
Kahlah
Saleh
author-
planned,
he determines
persons
(West
Supp.2007) petition
&
§ 2241
committed,
ized,
the terrorist
or aided”
relatively straightforward factu-
presents
September
that occurred on
attacks
declaration
According to the
al situation.1
purpose
at 224. The
2001. 115 Stat.
(and
pain
sworn under
filed in this case
clear,
authorization, Congress made
such
Director
by Jeffrey
Rapp,
N.
perjury)
any future acts of interna-
“prevent
was to
Force for
Intelligence
Task
Joint
against the United States
tional terrorism
(the “Rapp Declara-
Combating Terrorism
nations, organizations,
per-
by such
tion”),
al-Qaeda
is a member of
Al-Marri
sons.” Id.
training Afghanistan
be-
who underwent
Rumsfeld,
v.
Hamdi
and 1998 and was sent
tween 1996
(2004),
2633,
285
Quirin,
519,
2633;
war.”3 Id. Ex Parte
1, 35,
2,
124 S.Ct.
waging
U.S.
63 S.Ct.
Territo,
142,
see also In re
(1942).
156 F.2d
145
In the context of World War Marri I also meets what view as the sec- Court defined the term “unlawful combat- requirement ond anof combatant: ant” to include: belligerent acts be carried out on during pass those who time of war sur- behalf of an plu- force. Unlike the reptitiously enemy territory from into rality, accept I cannot al-Marri’s conten- own, our discarding upon their uniforms allegedly tion because he has ties entry, for the commission of hostile acts Qaeda, organization to al a terrorist involving property, destruction of life or *67 nation, any does not he does not have the status control of unlawful combatants punishable by military portion meet this of the definition of ene- as such commis- sion. my combatant. Indeed, practice detaining enemy practice
3.
the
was the
of our own
authori-
militarily predates
Constitution,
combatants
our Constitu-
adoption
ties before the
of the
Quirin,
1, 31,
tion. See Ex Parte
317 U.S.
63
Wars.”).
during
the Mexican and Civil
2,
(1942) (noting
S.Ct.
correct
for
impetus
the mili-
the
the
fact, Qaeda
with
war,”
provided
not affiliated
al
persons
Indeed,
consid-
may
be
“read in
not
the AUMF.
tary of a nation-state
enactment
recognize
I
And
...
and its
clause
purpose
ered
combatants.
of its
light
long af-
courts have
respect
...,
domestic
even
applies
the AUMF
preamble
Murray
See
of nations.”
the “law
forded
unmistakably to
clearly
[al-Mar-
more
Cranch) 64,
(2
U.S.
Charming Betsy, 6
v.
Padilla,
F.3d
423
at
than to Hamdi.”
ri]
(“[A]n
(1804)
act of Con-
118,
rorism,
Organizations
Terrorist
Foreign
Id. at
2.
S.Ct.
8, 2008),
(Apr.
http://www.
Fact Sheet 2008
(last
state.gov/s/ct/rls/fs/08/103892.htm
vis-
B.
5, 2008),
May
played
no role in
ited
Notwithstanding
congression-
the broad
Instead,
September
attacks.
al-
provided
AUMF,
al authorization
al-
clearly
Congress
Marri is
an “individual[ ]
argues
Congress
Marri
later circum-
in
sought
target
passing
AUMF.”
power
scribed the President’s
of detention
518, 124
542 U.S. at
S.Ct. 2633.
Hamdi
Act,
by passing
107-56,
Patriot
Pub.L.
addition,
while “indefinite detention” of
(2001) (entitled
“Mandatory
Stat. 272
permitted,
combatants is not
see
Terrorists;
Detention
Suspect
Habeas
generally
Hamdi
Review”).
Corpus; Judicial
The Patriot
engaged against
we remain
Act, passed shortly
AUMF,
after the
pro-
Qaeda in
regions
forces of al
the border
vides, in
part,
relevant
for the short term
Afghanistan
day.5
to this
Patri-
“[detention
[terrorist
[alliens.”
Moreover,
important
it is
to note the
412(a).
§
power
ot Act
to detain is
argument.
breadth
al-Marri’s
Accord-
Attorney General,
vested in the
but the
al-Marri,
ing to
were authorities to have
Act prohibits “indefinite detention.”
In-
hijackers
Septem-
detained one of the
stead,
requires
that “not later than 7
hand,
hijacker
ber
box-cutter in
days after the commencement of such de-
militarily
could
have been
detained
tention,”
Attorney
General must either
situation,
immediacy of the
but thereafter
(1)
(2)
begin
proceedings”
“removal
or
would have had to be turned over to civil-
“charge the alien with a criminal offense.”
ian courts.6
result would follow
This
de-
412(a).
§
permit
Id.
The Patriot Act does
hijacker
spite the fact that the
would have
periods
an extension of “additional
of up to
poised
been
to commit an act of war—in
“unlikely
six months” if removal is
for the
belligerency,
fact an act of unlawful
see
reasonably foreseeable future” and the
Quirin,
Care
(2007)
war,” Hamdi,
2339, 2348,
waging
127
I do not C. concurrence, separate Traxler’s which con- necessary per- cludes that a remand is I am with a simple left set of facts: the challenge mit al-Marri to further his de- President, grants already AUMF who Instead, tention. because al-Marri short- power has some inherent Article II attempt circuited the lower to craft court’s war, see, wage e.g., Chicago & S. Air procedures protect pro- meant to his due Lines, Corp., Inc. v. S.S. Waterman rights, cess I would not his refusal reward 103, 109, 431, 92 L.Ed. (1948) (“The participate with remand. To the con- ... possesses President his trary, magistrate judge district right powers own certain conferred judge court are to be commended for the him Constitution on as Commander-in- they responded extent to which to al-Mar- organ foreign and as the Nation’s Chief and, affairs.”), concerns, ri’s indeed accommodated power necessary to use only specific request. In order to ex- appropriate against organizations force conclusion, plain briefly I revisit the persons September with a role attacks; proceedings has stated below. Supreme Court *70 sumption government may in favor of the A. appropriate hearsay may need to be court en- July the district On (J.A. 179.) Thereafter, accepted.” at be that al-Marri concluding an order tered however, magistrate judge the made no as an combatant could be detained “presumption,” further use of the word magistrate referring the case to the explained peti- and instead the “[i]f judge development appropriate for of the produce tioner is unable to persua- more August magis- the procedures.7 On by than that produced sive evidence the telephonic a conference judge trate held government, inquiry the will end there.” and al-Marri’s attor- with the Government (J.A. 183.) If, however, at al-Marri put procedures might what be neys to discuss persuasive forth “more evidence than that determining whether al-Marri was used produced by government,” something the During hearing, the combatant. akin more “full-blown adversarial magistrate judge requested that both the (J.A. (em- hearing” would occur. at 183 question ... of whether parties “brief the added).) phasis in this case is the Government’s affidavit presumption, to the as outlined entitled describing protections might Hamdi, so, petitioner and if what must the hearing, attend to such a magistrate (J.A. at presumption.” do to rebut noted, instance, judge objections for 154.) under the Federal Rules of Evidence to parties, the Following briefing from the battle,” “gathered material on the field of entered an order on De- magistrate judge might inappropriate “might but lie as to 19, 2005, setting suggested cember forth by domestic evidence obtained law enforce- procedures addressing al-Marri’s de- ment in the course of the war on terror.” magistrate Citing tention. (J.A. 184.) finding at After that the Gov- judge appears concluded “it provided had indeed al-Marri no- ernment context of a classification of an individual tice of the factual basis of his classification by Exec- as Chief Declaration, in the form of the Rapp utive, process requires petitioner due magistrate judge by concluded the order receive notice of the factual basis for his “any evi- requiring al-Marri to file rebuttal classification, to re- opportunity and a fair (J.A. 184.) days.” sixty dence within government’s but the factual assertions ruling After the district court withheld persuasive evidence be- presenting more magistrate judge’s order until the (J.A. fore a decisionmaker.” neutral judge procedures magistrate before 182.) end, magistrate judge To this concluded, to the response al-Marri filed govern- indicated would “review order, that, magistrate judge’s stating evidence in the form of ment’s credible to review the being permitted without affidavits, such as the Mobbs Affidavit full, he unable to Rapp Declaration case,” the Hamdi and then would review respond required by the December “any responsive rebuttal evidence agreed, magistrate judge 2005 order. The from al- form of affidavits and documents” (J.A. 182.) 5, 2006, April filed magistrate and on Government Marri. The Declara- copy Rapp a declassified of the judge guidance also noted “[additional 4, 2005, May al-Marri filed his pre- the court in Hamdi indicates that tion. On magistrate judge. assignment by upon the 7. Because of this the district actions court, my large part discussion focuses in magistrate judge expressed frustra- that “he is unable to contending response, engage “fact- tion with al-Marri’s failure allegations contained disprove the that are intended to be finding procedures he has been de- Rapp declaration because *71 (J.A. incremental,” at prudent both to see evidence opportunity nied the 248), that al-Marri’s and recommended allegations are based.” upon which the (J.A. dismissed,” 231.) at (J.A. § 2241 “be petition further stated response at The 249.) judge doing, magistrate In so and “continues that al-Marri “has denied” the court appears that “it to allegations. concluded deny” to the Government’s (J.A. 230-31.) is more that the Executive Declaration response Al-Marri’s at denial persuasive general than Petitioner’s by noting that “Petitioner re- concluded concluding ... there is no basis for at time the declines this Court’s spectfully innocence, deprivation has oc- a erroneous prove invitation to his own (J.A. 248.) unlawful, unconstitutional, at curred.” burden that is 231.) (J.A. at and un-American.” review, Following a de novo the district judge’s Re- Report adopted magistrate a court magistrate judge The entered it consistent with May port “to the extent” was and Recommendation on recom- (J.A. 355.) order. at § al-Marri’s 2241 the district court’s mending dismissal of analyzing petition, al-Marri’s the dis- began by referencing claim. It its earlier that the framework summarizing Rapp Declara- trict court concluded order and tion, that it would applied, the “issue here is created Hamdi explaining in favor of the presumption on the issue of entertain a persuasive which is more evidence, and that once the falls outside the Government’s petitioner whether criteria, put forth credible evidence govern- Government burden to al-Marri to “rebut responsive ment’s credible evidence or the moved showing persuasive with more evi- petitioner rebuttal evidence which the (internal (J.A. quotation to at 347 present, special wishes to attention dence.” ” omitted).) (J.A. marks The district court first deprivation.’ the ‘risk of erroneous added).) magistrate Rapp The discussed the Declaration and re- (emphasis at 243 that, jected at the judge proceeded to note al-Marri’s state- al-Marri’s contention preliminary fact-finding stage, the Govern- ment that he declined “at this time” to hearsay rely attendant failure ment could not on a declara- submit evidence and his tion; “hearsay may put anymore general forth than a denial determined satisfy the Government’s burden allegations. of the Government’s used enemy combatant providing alleged brought It “Al-Marri this summarized: allegations the factual with notice of participate refused to action and has now (J.A. 349.) Rapp him.” at result, way. in a a there is meaningful As “at the permissible Declaration was thus dispute the court to nothing specific before (J.A. 349) phase,” initial at and the district al- simplest even the of assertions which “[wjhether Rapp expressly court noted easily they dispute, Marri could were not during Declaration would be admissible 244.) (J.A. example, accurate.” For phases proceeding the later of such a presented] “Al-Marri no information con- question today.” not before Court cerning graduate [did] his studies 351.) (J.A. at dispute easily or offer obtainable evidence Rapp that the to counter the assertion that December The district court found bur- rarely [the Government’s] 2001 he had attended classes and Declaration “met (J.A. 244.) support a factual basis in failing providing was in a status.” den of nothing and detention around that command. I see classification of [al-Marri’s] (J.A. 352.) Hamdi that forbids sworn statement— enemy combatant.” as an like court, Rapp providing Declaration —from magistrate like the The district allegations sufficient “notice” of complete recounted al-Marri’s judge, then Moreover, noted, against al-Marri. anything gen- more than a refusal to offer magistrate judge required the Government Finding that al-Marri’s eral denial. provide al-Marri the declaration in re- ignores responsibility ... “stance sponse request. to his action,” the district prosecute habeas of al- court then ordered dismissal respect With Court’s *72 354.) (J.A. § at petition. Marri’s 2241 guidance process resemble cus- review,
tomary habeas
the procedures the
B.
magistrate judge proposed
handling
stage
proceedings
the initial
of the
Hamdi,
provided
In
three
Court
—which
adopted
the district court later
in substan-
for lower courts when
guidance
avenues
many ways
tial part
mirrored tradi-
cases.
considering future
combatant
—in
practice
tional
under
habeas
28 U.S.C.A.
First,
process
the Court noted
due
§
§
by requiring
par-
2254 and
2255
both
requires
“enemy
that an
combatant must
ties
put
to
forth affidavits and other mate-
notice of the factual basis for his
receive
rials for an initial determination of which
classification,
opportunity
and a fair
to re-
party’s presentation
persuasive.
was more
factual assertions
but
Government’s
Hamdi,
before
neutral decisionmaker.”
regard,
the initial procedures
this
533,
Second,
124
542 U.S. at
S.Ct. 2633.
adopted by
magistrate judge
also
“ §
noted that
2241 and its
Court
precept
hewed to the common
that “the
provide at least a
companion provisions
petitioner generally
habeas
bears the bur-
Fordice,
of the
to
v.
procedures
skeletal outline
be
proof.” Garlotte
den of
515
in federal
re-
petitioner
39, 46,
afforded a
habeas
L.Ed.2d
Thus,
(1995); see,
U.S.,
view.” Id. at
S.Ct. 2633. Hamdi Finally, importantly, and most case, “prudent” for a magistrate judge,
In this stressed the need court, magistrate attempted process. later the district to follow “incremental” First, that, just outlining an iter- guiding principles. judge proposed those both the failed to judge and district court re- ative which al-Marri magistrate (J.A. way.” “in ever-cognizant participate meaningful mained of Hamdis com- 244.) Indeed, magistrate judge provid- mand that the combatant be heard, noted, deny allegations al-Marri refused to opportunity ed notice and pecu- structuring Rapp Declaration that were proposed procedures Trader, contrast, Judge liarly knowledge. within al-Marri’s He believes even the assertion that he dispute problem magistrate judge failed real is that the poorly in school. It performing was presump- engaged and district court in a simply beyond pale for al-Marri tion in favor of the Government’s evidence. unable, fur- contend that he was without Indeed, recounting after the detailed alle- Government, discovery from the ther Declaration, gations Rapp the dis- that he did or did not put forth evidence trict court this evidence a fa- “[a]fford[ed] By failing participate, Al- attend class. (J.A. 352), presumption,” vorable “in- simply Marri short-circuited the entire found that the Government had met its process. cremental” burden, shifting initial the burden to al- I to criticize the lower unwilling am Marri to rebut the Government’s factual for, essence, failing to be more courts “presumption” case him. This only creative. Hamdi is the nothing finding more than a that the Gov- any guidance on ha- providing Court case ernment’s evidence was sufficient to move procedures beas step to the next the “incremental” fact- cases, for the lower so it was natural *73 finding process-a process common to tradi- framework. courts to start with Hamdi’s practice by tional habeas embraced magistrate judge faced with al- The was Hamdi as the recipe for future cases. Be- position Marri’s a criminal trial yond stage, simply this initial we do not adequate position that overlooked —a know how the Government’s evidence Hamdi, that, fact once the de- under would have later been treated the dis- question answered in the affir- tention trict court had al-Marri not declined to mative, it a follows that a criminal fortiori participate from the start. is not required. magistrate trial judge its concern with al-Marri reiterated C.
receiving a factual for his classifica- basis having respond tion and opportunity sum, certainly sympathetic I am a mag- before neutral decisionmaker. The by Judge the concerns laid out Trader judge proposed istrate then set forth a that American citizens and resident aliens two-stage process similar to the normal apprehended and detained on American procedures aof habeas action that would procedures soil have access to to safeguard have, fully if implemented, given al-Marri process their due I rights, likely and would beyond procedures far adopted those quite differently view this case if I believed discovery. But including pro- this magistrate judge presumed had implemented fully precisely cess was not al-Marri to be an combatant from participate because al-Marri refused to the start. I in Judge likewise find merit proceedings, proceedings that contem- position Wilkinson’s that we not force the plated participation the active of al-Mar- Government to release bearing information Thus, petitioner. ri—the habeas it is be- security on national unnecessarily. I sim- cause of al-Marri’s own actions that we are ply case, it unnecessary, find in al-Marri’s today, proce- here unsure of how those try to strike this delicate balance. The dures would have worked. Given that the magistrate judge suggested an “incremen- procedural posture of this case is a result procedure tal” that mirrored traditional intransigence, of his own I would not re- have, al-Marri, habeas actions and would had al- petitioner party ward and the simply Marri prosecuting supplied persuasive” with the burden of his habeas “more action, with a remand. evidence the form of affidavits and docu- recognize I that the detention of ments, ultimately provided al-Marri with lawfully country in this is a mo- required by Ham- someone beyond far a step, recognize mentous but refusal to context, al-Marri’s total refusal In that di ability to authorize a Congress’s such de- magistrate judge is inexcusa- to assist the tention these circumstances would has “hoist[ed] [him- Because al-Marri ble. present more momentous still. The case petar,” William Shake- with his own self] age reminds that we live in an where 2, I Hamlet Act sc. would speare, beings slaugh- thousands of human can be proceedings. for further remand the case single large tered action and where III. can landscape swaths of urban be leveled in an instant. If the past was time court’s I would thus affirm the district danger country, for this remains no § 2241 petition.8 of al-Marri’s denial than prologue more for the threats the future holds. For courts to resist has authorized me to Judge DUNCAN political attempt rising to meet these dan- joins opinion. in this indicate that she gers making judiciary risks most WILKINSON, Judge, Circuit dangerous branch. concurring part dissenting part: say panic I this not as an exhortation to dissent from the reversal respectfully I fear, rather as a call prudence. but agree possess I that we judgment. The advance and democratization of tech- al-Marri’s habeas jurisdiction to entertain legal sys- nology proceeds apace, and our court petition. I also believe district recognition tem must show some these *74 that its right respects be in all and to words, changing circumstances. other be judgment dismissing petition the should law must reflect the actual nature of mod- affirmed. By placing empha- ern so much warfare. express my respect I wish to for those quaint and outmoded notions of sis ' differently. this matter I admire who see foreign and demarcated bat- states my colleagues fine and the skill with which (the tlefields, au- plurality opinion the principal and amicus briefs have ar- the Motz) by Judge and concurrence thored reversal, respect and I gued the case for Traxler) (the by Judge opinion authored that principle the sense of conviction and misperceive present the nature of our dan- I that animates their views. realize too and, so, doing opportunity in miss the ger, opinions lengthy, in this case are but presented by develop al-Marri’s case to than nothing that reflects more the consci- in dealing dangers framework for with new of the court entious attention each member way respect to both our future. There is important case. given has this liberty and the need our commitment security liberty without which cannot quite disagree I with the reversal of the way my But it is not the fine judgment. Congress I that flourish. believe chosen, have and I must re- military colleagues has authorized the deten- AUMF from the reversal of the spectfully of al-Marri and that al-Marri has re- dissent tion process judgment.1 ceived the he is due. I, Wilkinson, Although Judges Niemey- My colleagues’ efforts in this case are like views. er, Duncan, to be commended. and would decide this case differ- Michael, ently plurality (Judges than the Traxler, Motz, judgment King, Gregory) Judge and nature of the court’s and 1. Given the case, designate my express my deepest respect the matter of how to I want to for their very outset of protections at the is dural plurality’s view
The essence of
implies
proceedings,
enemy combatant
country of those
deprives this
law
a criminal
something more akin to
political
adjustment
of
means
doing, the concur-
in order.
In so
trial is
to success
deem essential
branches
accomplishes through constitutional
and rence
those who launched
struggle against
plurality
much of what
interpretation
launch attacks
again to
prepare
statutory
accomplish through
attempts
happy
am
indeed
America.
I
the elected
an erosion of
that the
construction:
in its view
prevail
did not
plurality
current
ability
pursue
military de- branches’
fails to authorize
AUMF
with the laws of war.
That
conflict
accordance
in this case.
tention at issue
rigidi-
a sense of
judiciary should embrace
thus
plurality
The
and the concurrence
re-
not elsewhere
ty
complacency
fact that our Constitu-
overlook the
both
seems
process
in our democratic
flected
architecture as well as a
tion is a feat of
judicial
warrant and
expansion
both
rights.
of cherished
To overlook
charter
may
tragic
of error that
lead to
a course
authority
allocation of
the constitutional
lasting regrets.
results and
and the President
this case is
Congress
with our
design
the Framers’
plain language
replace
By ignoring the AUMF’s
arrangements.
plurality
precarious
comes own
patent meaning,
holding
person
that no
all too close to
Moreover,
judgment,
plu-
their
lawfully
the United States
abandon
rality and the concurrence
subject-
seized as an
understanding
procedural
recognized
detention,
certainly not
ed to
totally up
case
process
due
and leave this
subjected
any appreciable
to detention
procedural
touchstone of
the air. The
plain import
That to me is the
length.
always
accuracy.
due
been
view,
plurality’s
interpretation
and its
concurrence, however,
plurality and
of the AUMF not
undermines Con-
un-
imposition
mandate the
of some
now
suggests that
gress’s intent but also
quantum procedures despite
certain
underly-
questions”
“serious constitutional
al-Marri, although
represented
fact that
*75
in
compel
ruling
a
al-Marri’s
ing
case
every opportunity by the
given
counsel and
favor. Ante at 226.
so,
slight-
trial
to do
did not cast the
court
concurrence,
any
ex-
by forsaking
government’s
est doubt on
of the
Similarly, the
proce-
in tensive declarations. Additional
burden-shifting
scheme established
when
Hamdi and
proce-
required
dures
of course be
imposing
rigorous
more
1516,
(2002)
court will be This legal need for some framework is problem presented greater The here is just opportunity. It is our obli- than al-Marri’s case and even than gation. 9/11. detention of Ameri- vulnerability— The sources of this nation’s lawfully can citizens or aliens within this borders, long multiple ports its its of en- country huge is a It step. is mistake to cities, try, densely-packed disper- its take step asking without where the materials, sions of lethal the march of ad- journey A leads. failure to locate vancing technologies, widening and the general combatant detentions within a knowledge distribution of as to the means principled framework will serve implements long of mass heighten open-ended concerns that deten- destruction — predated September 11th long and will tions of American offing. citizens lie day continue even as the events of that framework, contrast, A principled ad- in memory. recede authority. dresses the limits of executive a While minimalist method has much to Some of the scenarios are discounted as circumstances, many it in commend it has farfetched, suddenly they until are not. its drawbacks here. This is not an area capable inflicting Nuclear devices enor- adjudication provides *76 where ad hoc either mous casualties can now fit inside a suit- limits, guidance it or leaves the most Congress case or a van. can and has legal system liberty basic values of our — made clear that the use of such a device security limbo. —in persons groups or associated with the 9/11 attacks akin an act I points would more thus have some of difference ordinary Regrettably, my good colleagues. war than to crime. with each of I do not however, and, plurality agree plurality, to a somewhat I with the as believe extent, regard lesser the concurrence authorize deten- AUMF does al-Marri’s quite differently crim- agree these acts mere tion. I do not with the concurrence —as through inal offenses to be crimi- I al- Judge Gregory, tried or as believe that justice process something nal or Marri he I will received the was due. increasingly equivalent. agree Judge become its with the or This do Chief from those who in this case comes ing resolve a Niemeyer that we can Judge as the text of the AUMF magnitude— would so torture order of question of this Qaeda to al inapplicable it even American to render military detention of namely the identically to those who country— situated aliens in this members or lawful citizens certainly I attacks. perpetrated constitu addressing serious without 9/11 position If I hold the reflected attend a move. do not such tional issues that courts should counteract judgment question this whole such approach could construct plain intention or fashion, surely Congress’s But the I do so. a would accord- unspecified procedures decision in Boum some set of recent Supreme Court’s — time, At the same Bush, -, ing judicial designs. v. ediene (2008), ensuring a vital role in judiciary plays demonstrates 171 L.Ed.2d detentions are con- by the demo coordinated action that even constitutionally prescribed subject sistent with the is to constitutional cratic branches subterfuge a for cir- Indeed, powers the execu war and not scope limits. Rights. Bill of cumventing on our cherished authority turns not tive’s detention authorizes,” regarding the apologies also I make no for but “whether AUMF as the start- permits,” restraint of the third branch “the Constitution on whether my inquiries all matters place. ing point to take Id. for military detention I make to the conduct of war. pertaining 2271-72. recognizing apologies no either ignoring this constitution- danger The mili- limits on the there are constitutional proceed inquiry al is that we would trying to tary power and for detention and accretions to through increments they determine what are. contradictory court that features system throughout rulings military detentions attempt provide I thus some shall land, gives Congress no notice to our why al-Marri’s detention framework as permissible executive as to what the time, why, at the same is lawful and enemy combatant detentions boundaries of authority anything military detention and, worst, be, up inflicting ends might My proceeds open-ended. opinion own but the constitutional fabric grave damage to I, why I follows. In Section discuss intended at the at the end that none of us justify on its own terms to applies AUMF better, me, to at start. Far seems to II, I In Section ad- al-Marri’s detention. journey map, with a lest least start argu- premise the basic of al-Marri’s dress impression become this case of first charges criminal are ment —that formal voyage. aimless in order for the required III, In I address the to detain him. Section plurality attempt derides this questions that arise framework as a serious constitutional delineate a constitutional to, from, apply as well as the limits that policy-based exercise in “invention].” or lawful 218; n. detention of citizen Ante at see also ante at 226-27 apprehended in this case alien on American soil. policymaking 241^42. But the IV, my concurring I address col- aggressively comes from those who would Section league’s argument procedures that the af- prerogatives interfere democratic *77 with constitutionally al-Marri were defi- struggles, of armed not from forded the context V, discuss, Finally, in I in a our foundational cient. Section interpret those who would sense, why of al-Mar- sepa- larger a the dismissal proper respect document with squared can with America’s proper petition and a demonstra- ri’s be powers ration of judicial legal heritage. cherished policymak- tion of restraint. The judgment pening again. this because al- telling. By To reverse This omission is captured foreign failing appreciate was not bat- to Marri entire reason for AUMF, judicial akin foreign plurality tlefield or soil is to is able to produce Congress declaration that and the execu- interprets incredible result: may fight only the last war. This is tive AUMF so that even the attackers 9/11 important, to courts wrong. Access is themselves would not enemy be considered certainly I But provide and would it here. combatants it. under litigation only liberty. is not the friend of plurality’s The conclusion a paradox Democracy guarantor is a of human life parallel. without A designed resolution freedom, too. problem address a is read to leave the
I thus have no doubt that this detention problem unaddressed. The reach of a res- is lawful. This detention has author- been responding hijacked olution domestic is, by Congress. ized This detention and flights aimed at targets domestic and de- remains, subject judicial oversight. signed to inflict massive domestic casual- outgrowth This detention is a direct and ties is foreign confined to a battlefield. response to massive attacks on the U.S. holding hijackers that the would not 9/11 homeland. This detention is consistent combatants meaning within the precedent. Court This de- congressional of the response foremost tention is accordance with the laws of 9/11, the plurality legislative denies the war. And this detention should be sus- ability branch the says. to mean what it It tained. deprives congressional this action effect, but, essence, grants judi-
I. THE AUMF THE AUTHORIZES ciary expanding over veto future con- DETENTION OF AL-MARRI. gressional protect country. efforts to 18, 2001, September On one week after appreciate fully To the error of the plu- devastating the most attack on the U.S. rality’s ways, nothing one need consider history, Congress passed homeland in its itself, which, than more the AUMF in the the Authorization for Military Use of years passage, more than six since its (“AUMF”). Force plurality recog- The amended, never been much less rescinded: nizes—as it must—that the AUMF author- President is authorized to use all [T]he izes the President to order the necessary appropriate against force detention combatants. See ante nations, organizations, persons those or (Motz, J., concurring judg- at 228-29 authorized, planned, he determines com- ment). plurality also notes that the mitted, or aided the terrorist attacks primary issue before us this case is 11, 2001, on September occurred or petitioner, whether the Ali Kahlah Saleh organizations persons, harbored such or al-Marri, is an combatant within prevent any in order to future acts of meaning ante at AUMF. See international terrorism the Unit- 221-22. nations, organizations ed States such Despite spending opinion much of its persons. AUMF, however, interpreting plu- AUMF, Pub.L. No. 115 Stat. rality barely pur- discusses the AUMF’s (2001). pose, plainly so reflected its text: hold those responsible September grants for the The AUMF the President broad accountable, 11th prevent power: power necessary attacks and to to use “all similar acts of from hap- appropriate prevent “any" terrorism ever force” to *78 of terrorism those who time of his arrest United States.
future acts September apprehended, 11th attacks Before al-Marri had perpetrated he power gathering and The President’s technical information about their affiliates. been he use temporally: is not limited and was poisonous laptop, chemicals against “planned” force those who with both Muhammed communication 9/11 prepare Moreover, well “future” acts of as those who and al-Hawsawi. Id. he had power Nor is the President’s terrorism. undertaken efforts to obtain false identifi- geographically: preamble limited cation, cards, banking credit and informa- specifically directs the Presi- tion, AUMF including stolen credit card numbers. protect dent “to United States citizens Id. (emphasis both at home abroad.” Id. It should be clear that al-Marri is the added). Finally, recognizing the new secu- paradigm of an combatant under rity presented by global risks terrorist interpretation reasonable organizations, Qaeda, al global such as Congress AUMF. When directed the Pres- Laden, terrorists, such as Osama bin necessary” ident to “use all force—includ- AUMF authorizes the President to use ing power detention —“to “nations,” force but prevent any future” attacks those “or- “persons,” also the “organizations” 9/11, ganizations” responsible for it must that responsible September were for the certainly targeted Qaeda “sleeper have al 11th attacks. agents” planning similar attacks in the dispute Al-Marri does not so much as say Congress States. To did United him, allegations against which we are persons not have such as al-Marri in mind obliged purposes therefore to for credit say Congress very is to had little According this case. See ante at at all. mind Declaration, in Rapp gov- to the which the
ernment supporting details the evidence suppose Iwhat is intended as a criti- the detention of al-Marri as cism, says I plurality give would full combatant, closely al-Marri was associated effect to the “broad language” Qaeda, al organization the terrorist Ante at 244-45. AUMF. But of course. that perpetrated September 11th at- Judges respect take and treat with what Qaeda tacks. Al-Marri attended an al ter- gives I Congress pretend them. do not rorist training camp Afghanistan for there are not hard cases under the months, fifteen to nineteen and subse- if example, AUMF: the President were quently relationships cultivated with the an alleged to detain terrorist with more Qaeda most senior members of the al or- Qaeda ambigu- tenuous links to al or more ganization: personally he met with Osama ous intentions than al-Marri has. There martyr bin Laden and him- volunteered to questions are indeed difficult as to the Qaeda cause; self for the al he entered the authority reach of the Congress has con- sleeper agent United States as a under the upon ferred possi- President. But the Muhammed, Shaykh direction of Khalid bility of hard cases does not hide the fact attacks; the mastermind of the 9/11 this case fits squarely within the funding he received substantial for his mis- bounds of the AUMF. Al-Marri was indis- al-Hawsawi, sion from Mustafa Ahmed putably Qaeda, a member of al and he was financial facilitator of Id. at 220. 9/11. indisputably planning terrorist attacks to And that is not all. Al-Marri was ac- kill destroy American citizens and Ameri- tively planning property. terrorist attacks at can If al-Marri is not an “ene-
299
AUMF,
Furthermore,
erroneously
plurality
the
then
the
under
combatant”
my
in
scope
holdings
limits the
of the
Hamdi
who is?
and therefore Padilla.
According to the
four
also rests on
view
plurality’s
The
cases, “affilia-
under these two
plurality,
First,
erro
plurality
the
faulty premises.
military
enemy
arm of an
tion
the
with
be
al-Marri cannot
neously asserts
”
nation is a
necessary
being
condition for
combatant because
enemy
an
considered
enemy
under the
labeled an
combatant
alleged that he
has “never
the
added).
Ante
(emphasis
at 230
AUMF.
nation’s
military
any
[or]
is a member
in both Hamdi
course,
petitioners
the
Of
any nation’s
armed
fought alongside
at
time affiliated
Padilla
were
one
added).
(emphasis
Ante
at 217
forces.”
Afghanistan.
units in
with Taliban
this “nation” affiliation
plurality bases
The
However,
228,
neither the
ante
at
reading of the
misguided
aon
requirement
Hamdi
Padilla
nor the
court made
Court
v.
Hamdi
opinion
Court’s
Supreme
lynchpin of
decision. For
this fact the
its
507, 124 S.Ct.
Rumsfeld, 542 U.S.
Hamdi,
instance,
the
Court
(2004)
op.), and
(plurality
L.Ed.2d 578
159
only an-
very clear that its
made
decision
Hanft,
v.
in Padilla
opinion
circuit’s
our
question”
narrow
of whether
swered “the
(4th Cir.2005), which relied
386
423 F.3d
detainee,
alleged,
facts
the
based
the
plu
heavily on Hamdi.
According to the
enemy
as an
combatant.
could be classified
Taliban, “the
the
rality,
relationship
with
at
The second
battlefield,
seen action on a
such
factor
ty is the erroneous claim that al-Marri
potentially
condi-
represents
sufficient
enemy
qualify
does not
as
combatant
tion,
one,
necessary
qualifying
not a
for
on,
allegedly
not
“seized
because he was
enemy
combatant under those cases.
near,
having escaped
from a
requirement
battlefield An absolute
that someone
on which the armed forces of
United must have been on a battlefield in order to
engaged
or its allies were
in com-
States
enemy
receive
combatant status would run
added).
(emphasis
Ante at 220
This
bat.”
Quirin,
headlong
parte
into Ex
purported
requirement
“battlefield”
is also
(1942).
case,
L.Ed. 3
In that
plurality’s
interpre-
on the
based
mistaken
captured
the Nazi
were not
on
saboteurs
tation of Hamdi and Padilla.
ante at
battlefield,
or near a
but rather
(noting
captured
that Hamdi was
on a
States,
surreptitiously
after
enter-
United
battlefield);
(noting
id. at 229-30
that Pa-
ing
enemy territory
“from
into our own.”
battlefield).
dilla had been on a
Id. at
Third,
faulty
influ-
fourth
plurality appears
plurality’s
assumption
to be
*81
(4 Wall.)
parte Milligan,
of
is that
71
length
the fact that the
Ex
U.S.
enced
(1866), precludes
in effect and that an Act have the AUMF and Patriot cause ongoing be met with an resolution. spheres operation. While different specific response to represents a undergoes the AUMF some AUMF
Until
attacks,
it,
authorizing
force
body that enacted
change from the
9/11
attacks,
responsible
those
express
courts must honor its
intent. To
point
Sunstein,
War,
the Patriot Act has a different
of Cass R.
Minimalism
(same).
emphasis: providing law
enforcement with
Sup.Ct.
Rev.
Under
additional tools and tactics —such as an
rubric,
legality
of executive action
records,
ability
regu-
increased
to access
by congressional
is fortified
approval:
transactions,
late financial
perform
pursuant
the President acts
to an
“[w]hen
designed
prevent
terror-
express
implied
or
authorization of Con-
surveillance —
generally, regardless
ism
of whether the
gress,
authority
maximum,”
is
its
suspect was associated with
9/11.
while, conversely,
power
the President’s
107-56,
(2001).
Pub.L. No.
Stat.
at its “lowest ebb” when he “takes meas-
Thus, to the extent that
there is even a
incompatible
ures
expressed
with the
conflict,
potential
hint of
the AUMF un-
implied
Congress.” Youngstown,
will of
doubtedly
present
controls in the
situation
(Jackson,
THE THREAT. TERRORIST seeks, alternative, if not al-Marri name, is then what a criminal trial Notwithstanding Congress’s explicit practice. trial essentially a criminal to de- authorizing mandate the executive may if he be detained “organi- Even persons all affiliated with the tain charge, al- attacks, without a criminal authorities “planned” zations” 9/11 process- claims that he is entitled strikingly different Marri plurality reaches a part parcel threat, es that are of a handling criminal when the terrorist prosecution, right discovery such as the notion that it is the manner of deal- right and “the to confront and cross-exam- ing threats, with such or is constitutionally evidentiary hearing.” ine witnesses in an compelled in all involving apprehen- cases 11; Appellants Reply at see also soil, sions on simply wrong. American Brief of 31-32; Appellants Brief of democratic branches cannot be Brief for com- Evidence and Procedure as pelled Professors of to wage many with so struggle Appellants Amici Curiae Supporting through attributes of war the exclusive (asserting 12-26 that the Federal Rules of justice medium system. of the criminal Evidence and the Due Process Clause ren- Nothing in our requires constitution inadmissible). Rapp der the Declaration elected branches to treat terrorism invari- processes suggest- These exceed far those ably as a criminal than offense rather as ed in Hamdi. See Court Indeed, belligerency. an act of such a S.Ct. 2633 Hamdi approach constitutional would burden the (noting “enemy-combatant that in proceed- Congress greater and the Executive to a ings,” hearsay “may accepted need to be extent than the war powers will allow. As as the most available reliable evidence below, discussed the prosecution of terror- from the Government” and “burden- organizations ists associated with such as shifting scheme” includes a rebuttable Qaeda al presents often intractable evi- “presumption in favor of the Government’s dentiary logistical difficulties. These warranted). evidence” difficulties underscore the fact ju- that the assertions, Based on these various diciary right has no in the name of consti- only reasonable I inference can draw is compel tutional law to prosecu- criminal that the plurality, petitioner well as and tion of suspects terrorist all instances. *84 his amici supporters, ringing endorse a By forcing particular approach over the preference justice system for the criminal wishes of Congress expressed in as the the exclusion option of other for AUMF, plurality the undercuts the role of dealing suspected Qaeda with al associates legislative in allocating branch to the apprehended By on American soil. defin- options executive to deal with the most ing scope of the AUMF and the dangerous Qaeda al members in our combatant category narrowly, so it is hard midst. anything to find other than a desire plurality requirement to establish a of One wishes vain for the plurality to prosecution criminal every in almost case.2 glint evince recognition some that two
IWhile would models agree manage be first to exist to pre- the threat justice the criminal system by suspected retains an im- sented prosecut- terrorists: portant place in system our constitutional ing them through justice the criminal concurrence, Judge 2. In his Gregory express- cution and detention in those instanc- preference es a prosecu- similar for criminal Congress es where ap- deemed the latter suggests tion. He that because the executive propriate. The fact executive has criminally chose prosecute several individ- judiciously forego using chosen to its deten- might potentially uals who have been de- power tion under the AUMF in some cases Moussaoui, tained e.g., under the Pa- AUMF— where it deprive is available not does it of the dilla, provide and Abu Ali—it must al-Marri power in other where it instances is neces- procedures least resemble a crim- sary. question before courts in either 279-81, inal trial. Ante at 281 n. 5. This circumstance is whether the executive action course, argument, of overlooks the executive's is a lawful one. prose- discretion to choose between criminal
305
“categorical imperative”
down a
enemy com- er laid
detaining them
or
system
justice system be the sole
that the criminal
alone will
approach
Neither
batants.
suspected wrong
apprehending
mode
between
balance
appropriate
achieve
Salerno,
States v.
481 U.S.
security.
doers. United
and national
liberty
individual
2095,
739, 748,
697
107
95 L.Ed.2d
S.Ct.
such,
directives
judicial
As
(1987).
instance, pragmatic concerns
For
mandate
itself
the Constitution
AUMF
safety” may, in some cir
“community
criminal
model of
single
reliance on
cumstances,
deprive
allow the executive
involving terror-
in all cases
prosecution
a tradition
liberty
without
an individual
satisfactory nor
neither
suspects is
ism
See id. As the
proceeding.
al criminal
Indeed,
all
by formally routing
tenable.
see ante at
properly recognizes,
plurality
in this
apprehended
suspects
terrorist
as diverse
is true
contexts
justice sys-
the criminal
country through
suspects
dangerous
as the detention
in im-
tem,
has succeeded
plurality
Salerno,
trial, see
a criminal
Article before
warmaking powers of
pairing
(adults);
755,
Schall
107 S.Ct.
U.S.
warmaking powers
Article II. The
I and
Martin,
253, 104
467 U.S.
S.Ct.
v.
and the Execu-
Congress
upon
conferred
(1984) (juveniles);
the civil
L.Ed.2d
pros-
latitude in
confer
must likewise
tive
ill,
mentally
see Ad
war;
commitment
wage
detaining those who
ecuting or
Texas,
99 S.Ct.
dington v.
bestowing
empty grants,
they are
else
(1979);
and the con
This
just such an
is
recognize that the AUMF
nev-
absolute: the Constitution
means
By denying Congress’s
pronounced
authorization.
more
when the combatant is a
manner,
plurality
suspected
clear intent
terrorist
al-Marri.
like
Rather
battlefield,
essentially
than
jus-
foreign
mandates that the criminal
return to a
al-
Marri,
release,
system
only
upon
may
tice
his
pursuing
is the
tool for
well resume
that,
to launch a
struggle
view,
catastrophic
efforts
attack
Congress’s
bears
against
many
American interests either on
of the salient characteristics of a
U.S.
Sunstein,
soil or abroad. See Cass R.
Na-
simply
modern war. This
cannot be the
Security, Liberty,
tional
and the D.C.
case.
Cir-
cuit,
(2005)
73 Geo.
L.Rev.
Wash.
Indeed,
recognition
the Court’s
of alter
(noting that the costs of error when deal-
natives to criminal prosecution is not
ing with
“may
terrorism
turn out to be
thought
compromise
our constitutional
harmful”).
merely
disastrous rather
than
values, and
plurality wrong
sug
is
gesting that
present
detention does
B.
just
Though
that.
I recognize the deten
tion at
issue here is
than
rather
There exists not
the obvious need
nature,
analysis
civil
the relevant
is no
combatants,
to immobilize
particu-
This,
least,
different.
was the
larly
terrorists;
suspected
there are also
Boumediene,
Court’s view in
when it said often serious barriers
to their criminal
“proceedings
need
prosecution. To begin, the arrest of terror
resemble
criminal trial.” Boume
suspects will
necessarily
sometimes
diene,
fact,
connection to that case had been discover- If highly such intelligence classified ed.” Id. were suspected terrorists, disclosed to consequences would be devastating. Any Second, relatedly, and prosecution further use of that intelligence to either some present could security terrorists con- prevent future attacks or capture other cerns of a different sort: witnesses and suspected terrorists would jeopardized, be jurors may subjected to threats of vio- if Moreover, not lost. secrecy loss of lence or become targets of attack. place would the sources of sensitive infor- The willingness of organizations terrorist mation in danger reprisal. It is for to retábate civilian participants in these reasons that the Court recog- has a terrorist trial cannot be overlooked. A1 nized that the “[government has a Qaeda compel- already has “carried out a mass ling interest in protecting ... secrecy killing abroad left a message written important information to our stating that national the killing was in retaliation security.” Sims, v. 159, 175, CIA the actions of judge.” [a] federal trial 105 S.Ct. (1985) 85 Wedgwood, L.Ed.2d supra, at 173 331. It is not unrea- (quoting Snepp States, v. sonable to United believe such a ruthless 509 n. organization easily could L.Ed.2d 704 target the trial (1980) curiam)) (internal (per participants quotation themselves the future. See omitted). (2000) § marks U.S.C. (prohibiting tam- pering witness, victim, with a or infor- However, government’s desire to mant). protect such sensitive intelligence may place jurors
To and witnesses in conflict with a defendant’s confrontation sort of danger goes far beyond price compulsory process rights. By em- that we fairly ask citizens pay ploying rights, re- those terror suspect like sponsible members of a al-Marri society. free For may, a tactic commonly re- while may it of course be possible ferred pro- “graymail,” to as request highly jurors tect trial, and witnesses during sensitive it materials. See H. William Si- likely prove mon, will very fully difficult to The pro- Ethics Defense, Criminal tect them a trial after Mich. (1993). been concluded. L.Rev. Such a Wedgwood, supra, at request plural- 331. The government leaves the facing a ity, by insisting on criminal prosecution in Hobson’s Choice. can nearly instances, all fails to withdraw part consider that a all or protect its case highly publicized information, international terror its trial or proceed and surrender may perfectly suit the its interests of an or- intelligence sensitive possibly its ganization, Qaeda, such as al source. thrives even if And the government on propaganda and intimidation. able suppress request, defendant’s defense counsel will be able to insinuate Third, finally, the plurality also ne- that the government is hiding information glects to discuss another serious concern: that is favorable the defendant. traditional criminal proceedings, especially public trials, may not be responsive to the I do not suggest these concerns should executive’s legitimate protect need to carry sen- the day. But Congress may certain- sitive information. Neither plurality ly take them into account deciding anyone nor suggests else that suspected the criminal justice system is not the sole terrorists, al-Marri, such as are permissible arrested means of dealing suspect- pursuant to anything other than intelb- ed terrorists. In light concerns, of these gence of the most sensitive sort. apparent seems justice the criminal *88 the individual’s against of information flow with the deal ill-suited to bemay system defense”). prose- prepare to right the presented problems unique This, al-Marri. as such of terrorists cution using on insistence plurality’s if the But Congress of least, the calculus was prosecute all system to justice the criminal con- these By ignoring AUMF. the passing presence the on rests terrorists domestic AUMF, the text of clear the and cerns CIPA, it as such measures corrective of the unmistak- however, sends plurality the corrective these that recognize also must sys- justice criminal that the message able and, always available are not measures for deal- template unquestioned tem is available, to ad- not able are when even terrorists, regardless of domestic ing with CIPA’s difficulty. Despite every dress consequences. prob- panacea not a purpose, prosecution by the criminal C. presented lems This is be- terrorists. suspected of some measures have sure, corrective To to overcome pretend does not cause CIPA to alleviate by Congress adopted been perspective. judicial limitations all by the presented problems many of understandably to be tend courts Because terror suspected of prosecution criminal before them specific cases on the focused Informa instance, the Classified For ists. judicial (that all, is, nature after de specifically was Act Procedures tion they, under- a risk that there is process), information to handle classified signed broad- appreciate the fail to standably, in a will proceeding a criminal the course potentially awith associated dangers need legitimate er balances manner Sims, See legitimate of information. piece against sensitive security of national (explaining rights. of basic assertion 471 U.S. for the need background Act no “little Procedures have judges Information Classified intelligence §§ 1-16 Ill app. (“CIPA”), business 18 U.S.C. the delicate “[tjhere Fernan reason v. is no States (2000); United see also and that gathering” Cir.1990). (4th ability Courts in the dez, F.2d 148 great confidence to have ... familiar intelligence-related have become parties make” judges cases, in these employed customary tools correctly). judgments redactions, hearings, camera such even the guarantee is no there And seal. under information placing protect attempts most conscientious measures, there statutory to such addition always be effec- will information classified a to balance designed law case is also criminal instance, during the For tive. interests governmental variety of pressing in- Yousef, apparently “an of Ramzi trial rights. criminal awith defendant’s court- testimony public in a bit nocuous Craig, 497 v. See, Maryland e.g., battery phone delivery of cell about room (1990) L.Ed.2d 666 853, 110 S.Ct. still at terrorists tip off enough phys the state’s “interest (balancing links communication one of their large that of child well-being psychological ical Mukasey, supra, compromised.” been had desire a defendant’s victims” abuse ambitions, such Qaeda’s al A15. Given confrontation); v. Roviaro for face-to-face last far have ramifications mistakes States, United Congress trial —mistakes specific beyond (1957) that the (holding 623, 1 L.Ed.2d the Presi- granting prevent sought informant’s of whether determination enemy com- authority detain dent “bal requires be disclosed identity must AUMF, mistakes under batants protecting interest public ancing *89 the plurality fails to acknowledge when more extreme direction. The difference suggesting justice the system criminal between the procedural elaborate protec- is the only dealing model for with al-Marri required by tions plurality the in the Unit- similarly those situated. ed States required and those elsewhere give will the executive branch the incentive
In long run, plurality’s prefer- pursue more extraterritorial detentions ence for making the criminal justice pro- and more acts rendition —not because cess the exclusive vehicle for dealing with these actions necessarily are by dictated domestic may terrorism nothing disserve struggle against terror but because of so much justice as the criminal system disparities between procedural refined itself. In adopting corrective measures to regimes at home and rudimentary more deal with the unique problems presented ones abroad. It is far for by better true prosecutions, terrorism courts di- liberty to seek some balance between crim- lute the protections core of the criminal prosecution inal justice system detention for in other In past, cases. suspected country terrorists than “urgency involved in terrorism cases” pursue the plurality’s path. has “led one-sided courts to accept conduct government might well have been To sum up, while corrective measures disapproved in other contexts.” John such as CIPA possible are adaptations Farmer, Courts, A Terror Threat in the procedures criminal certainly have been Times, N.Y. 13, 2008, 4,§ Jan. at 14. undertaken, the fact prosecu- remains that Furthermore, in order to effectively pros- tions of suspects terrorist have frequently terrorists, ecute courts have been much proven difficult, to be both as a practical more willing to extend the “reach” of ma- and logistical matter and as a broader terial conspiracy witness and statutes “to gauge of what the judiciary’s proper role conduct that has never pun- before been should be on matters touching quite inti- ishable as a crime.” Id. mately on the conduct of war. It is often
It
is naive to think
argued
this sort of
that these difficulties
nothing
are
dilution of
procedural
our
more than
substantive
a function of the fact that these
criminal law will
post-9/11
have no effect on the
are
cases
ones of
impres-
first
prosecution of criminal suspects
sion.
who are
This is
partly true. These
terrorists. The
inherent,
will seek
difficulties are
and no accumula-
to take advantage of
precedents”
“terrorist
tion of experience
going
to make the
Thus,
other cases.
despite
plurali-
underlying
evidentiary
and prob-
dilemmas
ty’s protestations
contrary,
to the
go away.
lems
best
way to maximize liberty
all may
for
in fact Moreover, it cannot be forgotten that
be to minimize the instances when such CIPA
Congress
enacted
apply
dilutions of criminal process are needed in
prosecutions,
criminal
not to military de-
place.
the first
See,
tentions.
e.g., 18
§
U.S.C.
Ill
app.
consequences
unintended
plu-
(stating that
protections
of CIPA are
rality’s insistence on the
justice
criminal
designed to “prevent unnecessary disclo-
model do not end with the dangers of
sure of classified information involved in
dilution.
pushing
full panoply
criminal proceeding” (emphasis add-
criminal
ed)).
for all suspected terror-
There has been no indication from
ists
arrested
this country,
plurality
Congress that CIPA should be extended
risks pushing
executive,
understand-
beyond
wholesale
original
its
scope, and
ably intent on protecting
nation,
in a we therefore should not do so here. Like-
liberty
exigencies
to the
commitments
Congress
forgotten
wise,
it cannot
*90
kind of conflict.
this different
of CIPA
cognizant
fully
the AUMF
passed
measures.
corrective
available
and other
model, the
military detention
Under
nec-
the use of
authorized
Congress
When
enemy combatants
may detain
President
military deten-
force, including
essary
justice
criminal
in the
trying them
without
al-Marri,
as
such
enemy combatants
tion of
542
system. See
alter-
that other
full well
knowing
so
it did
power
an awesome
This is
Nevertheless, it au-
possible.
natives were
such,
properly circum-
and,
be
must
President,
“appropri-
when
thorized
not afforded
are
Detainees
scribed.
combatants, a power
ate,” to detain
Rights or the
Bill of
of the
protections
full
incident
a fundamental
recognized as
long
Procedure, and
Rules of Criminal
Federal
must
This authorization
war.
waging
of
subject to
are not
actions
the executive’s
at-
undermined,
plurality
as the
not be
inherent
accountability
is
subversion in
judicial
through
tempts,
See,
Harold
system.
e.g.,
justice
criminal
H.
William
process.
criminal
name of
Military
Koh,
Against
The
Hongju
Case
But One: Civil
All the Laws
Rehnquist,
Commissions,
Int’l L.
338-
J.Am.
(1998) (stating
in Wartime
Liberties
(2002).
“ill-suited”
is
“[j]udicial inquiry”
might be tenu-
every crime that
turn
To
necessity”).
“military
of
issues
address
into a
linked to terrorism
ously
can
threats
Thus,
many terrorist
while
country’s most
breach
would
matter
the criminal
through
treated
be
and should
acceptance
Our
fundamental values.
should
preference
justice system,
case bespeaks
jurisdiction
al-Marri’s
Indeed, it
nev-
absolute.
be
no means
with
detention
indefinite
recognition
justice
the criminal
case that
er been the
option.
an
is not
prospect
review
no
of all other
exclusion
to the
system used
is
of the executive’s
extension
a broad
Such
effectively reduc-
By
detention.
forms of
suspend not
powers would
detention
of detention
allocation
legislature’s
ing the
Constitution,
very essence
but the
and all but direct-
the executive
options to
liberty itself.
such
deal with
that our
ing
thus not between
question is
hard
The
manner, the
single, invariable
in a
threats
unsuper-
prosecution
full-blown
dangerous-
but
just wrong,
is not
plurality
in-
question
hard
detention. The
vised
above, it
discussed
the reasons
For
ly so.
must
of those who
the identification
volves
prose-
possible
nor
practical
is neither
prosecuted
charged and
formally
be
crimi-
using the
suspects
cute all terrorism
may be
who
and those
manner
traditional
not constitu-
it is
system. And
justice
nal
proce-
limited
to more
pursuant
detained
tionally required.
congressional proclama-
forth
set
dures
See,
precedent.
Court
tion
D.
524-39, 124 S.Ct.
e.g., Hamdi
misunderstood.
If
wish to be
I do not
be
that must
(detailing procedures
is
terrorists
suspected
prosecution
as en-
detained
citizens
American
afforded
circumstances,
all
possible
simply not
combatants).
emy
military detention.
the use of
is
neither
while we
clear:
is
thus
many
dilemma
ability to
eliminates
detain
While the
for tradi-
preference
a constitutional
have
criminal
problems associated
prosecu-
proceedings,
criminal
tional
detention
open-ended
prosecution,
un-
presents
suspects
many terror
tion of
our historic
way to conform
acceptable
precedented
challenges.
Conversely, mits” Congress to authorize the military
while the
ability
detain
many
avoids
someone,
detention of
al-Marri,
such as
the problems inherent in
jus-
the criminal
who
lawfully
residing
this country
system,
tice
liberty
threat to
presented when seized on American soil. Boume-
by executive detention
Bush,
commands that
it diene v.
Instead, there must be a set of criteria
ble exercise.
just
And not
why, but
that enable us to identify
military
when
when—as in when the detention of lawful
detention is a constitutionally permissible
permissible,
residents is
and when it is not.
option. This is
I
try
what
shall
indo
If the basic
questions
“wh”
do not
arise
Section III. These criteria
case,
must endeavor
this
then I
they
doubt
ever will. The
respect
the preference for the criminal American constitutional
tradition is not
justice system to the
possible,
extent
while
consonant with the prospect of martial law
not compromising
unquestioned
consti-
in other than necessitous circumstances.
Const,
tutional prerogative of Congress and the See
I,
9,
2;
§
art.
cl.
Ex parte
executive to wage war and ensure
(4
se- Milligan,
Wall.)
71 U.S.
This is such a case. Because al-Marri’s deed, I think this is the way ap- case raises such fundamental questions *93 proach and resolve al-Marri’s case. about the power militarily executive’s suspected detain terrorists lawfully resid-
ing in country, this it imposes the obli- A. gation to precise examine the contours of combatant category and to de- At glance, any first discussion of tradi- velop a framework for determining who tional law of war may principles seem under our may lawfully Constitution quite antique. principles These are rooted detained.5 long past, times war synony- when My analysis mous with begins thus classic an exami- battlefield combat en- nation of gaged traditional law of war principles uniformed armies of rival that must any underlie nation-states. Our understanding enemy has, of current of (subsection the enemy course, category shown contempt for long-es- A). Next, I shall explain princi- how these tablished rules of armed conflict. Never- ples have consistently theless, accommodated the law of war remains of primary changes in the conduct of war and in inter- importance in determining proper con- (subsection B). national relations I shall tours of combatant category. 5. plurality Moreover, The any asserts constitutional limiting construction that the plurality places placed upon plain language limits on the ability executive's to ab- of namely apply that it does not rogate Rights the Bill of amount to what is in AUMF— any enemy of detention combat- effect limiting construction on the AUMF ant within country a far more dramat- —is itself. See ante at quite 226-29 n. 9. This is ic restriction congressional language and mistaken: there is a difference between statu- authority executive than the Constitution re- tory and interpretation, constitutional and the Quite quires. apart from the different result plurality wrong is Recog- to conflate the two. case, we reach in plurality’s al-Marri's nizing that there are constitutional limits as to willingness upon to intrude the exercise of the who the militarily executive detain is warmaking powers guise statutory in the cry thus a far placing from limiting con- interpretation bears no resemblance to struction on the AUMF. constitutional I structure have known. and Authorization smith, Congressional First, as the two reasons. true for This Terrorism, Harv. L.Rev. Hamdi, “longstanding War explained Court (2005). inform our should principles” law-of-war and, there- the AUMF understanding of a “distinct represents of war law power President’s fore, scope William of Nations.” of the Law canon current in the enemy combatants detain Law and Precedents Military Winthrop, 521, 124 conflict. 2000) (1896). In ed., (2d. Books Beard (stating at 228 2633; ante see also in- States, all “encompasses the United repeatedly have courts that “American of hostili- for the conduct law ternational identifying inwar the law of to ... looked its the United States binding on ties combatants). are individuals” which citizens, including treaties individual fundamentally, tradi- Second, and more to which agreements international are consistent principles of war tional law applicable party, ais United States deten- indiscriminate belief with the Dep’t of law.” customary international norms to constitutional antithetical tion is DoD Program, Defense, of War DoD Law system our under be tolerated cannot 9, 2006), 2311.01E, (May 3.1 sec. Directive justice. http://www.fas.org/irp/doddir/ available any special claim Thus, I while do M. also Jack see dod/d2311_01e.pdf; history, its war and law expertise Mili- Boomerang: The Beard, The Geneva “long- looking to analysis my begin I Act 2006 and tary Commissions Although principles.” law-of-war standing Int’l 101 Am. J. Operations, Counterterror knowledgeable more far those there are (2007) DoD (quoting n. 5 L. I, than am certain these matters about Directive). them- suggest do rudimentary principles has indi- and, Supreme Court as the selves *94 context provide cated, principles these at issue here. inquiry
assistance of the law animate principles Several cardi- is the among them Foremost war. its binding of own is not law of war The discrimination, which seeks of principle nal understand force, informs our rather but of unnecessary destruction to II minimize I and powers Articles war ing of the “pur- from that results property life category. enemy combatant and of Michael violence.” poseless wanton as a source serves of war likewise The law (3d 129 Unjust Wars Walzer, conflict, Just and times of armed during guidance of ed.2000). discrimination of principle The when law of war look to and courts mili- limit their nations to warring requires a scope of the content interpreting actually who persons to those tary targets military use authorization congressional time, the same military threat. At See, pose e.g., Ham force, AUMF. as the such those detain warring nations 2633; Ex allows 518-19, 124 di, S.Ct. threat, ensur- military 7, represent do who 1, n. 63 & 30-31 U.S. Quirin, 317 parte per- only those but ing persons, such (1942); v. Padilla 2, L.Ed. 3 S.Ct. con- the field of from Cir.2005). sons, (4th are removed 386, 391 423 F.3d Hanft, are inevitable mistakes While is flict. accepted view” Indeed, “generally war- environment confused often authorization unqualified broad “a recog- of discrimination fare, principle do empowers President force to use value, war- even in indisputable nizes per of war the laws enemy what innocent life. time, sparing of L. Bradley & Jack Gold- A. Curtis mit.” principle This of Quirin, discrimination is effect- 317 U.S. at uated through the category of “enemy paradigmatic example of a combatant is a Only combatant.” “enemy combatants” soldier actively who serves in his nation’s may be the intended targets of military military. See Protocol Additional to the force or militarily major detained. Two Geneva Conventions of 12 August distinctions define and relating to the Protection of of Victims (1) category: the distinction between ene- International 43(2), Armed Conflicts art. (2) mies and non-enemies and the distinc- 8, 1977, (hereinafter June 16 I.L.M. 1391 tion between combatants and non-combat- I”) “[mjembers “Protocol (stating that See, Walzer, ants. e.g., supra, 135-37; the armed forces a Party to a conflict” Bradley Goldsmith, & supra, at 2107-16. “combatants”). are However, “surgeons, assistants and employees charged with the
The first level of classification deter- care and transport of the wounded mines on the qualifies who as the “enemy.” Tra- field,” even if they are formally ditionally, part of the “enemy” definition country’s military organization, been generally state-based: after the United States have not been declares considered nation, war on combatants. another all resi- Winthrop, 779; supra, dents of that country Richard J. Re- are deemed enemies gan, Just Principles War: Browne, United States. Lamar v. Cases 89 (1996) 187, 194, (1875) (noting (“In that “the 23 L.Ed. law of nations and war, all international residents of enemy country prohibit conventions attacks are enemies.”); Territo, medical personnel”); re military 156 F.2d see also (9th Cir.1946) (same). Military A Act country’s Commissions Pub.L. 109-366, § enemies No. 950v(a)(2)(C), include merely “not opposed 120 Stat. 2625 (classifying forces but all “military the inhabitants of medical or religious the belligerent personnel” nations or “protected districts.” per- Win- son[s]”). throp, supra, at 776. Consequently, those
who
countries,
reside
neutral
if
even
Several factors have traditionally been
politically, but
militarily,
sympathetic
considered relevant to the determination of
enemy nation,
are immune from
whether someone is a combatant. These
detention and targeting by military forces.
include an individual’s “self-identification
After determining
a person
is an through the wearing of a uniform or some
“enemy,” the second level of classification other distinguishing characteristic”
*95
distinguishes combatants from non-com-
“participation within the command struc-
“By
batants.
agreement
universal
and ture
a party
to the conflict.” Bradley &
practice, the law of war
a
draws distinction Goldsmith, supra,
2114;
at
see also Mili-
between the armed forces and
peaceful
tary
2006,
Commissions Act of
Pub.L. No.
populations of belligerent nations.” See 109-366, § 948a(2)(B),
2600,
120 Stat.
2601
Quirin,
30-31,
Combatants have traditionally included combatant”); Geneva Convention “most members of forces,” the armed Relative to the Treatment of Prisoners of Bradley Goldsmith, & supra, at and War art. Aug. 12,1949, 6 U.S.T. 75 those “who associate (hereinafter themselves with the U.N.T.S. 135 “Third Geneva military arm of Convention”). government,” A person’s presence on a
317 of American citi- the detention permit also partic- considered has also been battlefield See, (arguing that e.g., ante at 217 zens. determi- to the combatant relevant ularly also allow would Padilla, of al-Marri the detention See, at 391— 423 F.3d e.g., nation. similarly of a situ- “military 124 detention n. at 522 U.S. 542 (citing (noting id. at citizen”); ated 2633). American 5.Ct. not protects Clause Due Process that “the in order must exist single factor No id. at aliens”); only but also citizens combatant, however. aas person a qualify citi- ordinary American “even (noting that has Court instance, the Supreme For detained). be zens” could a may be an that individual clear made indefensi- plurality has again, Once on acting if he is even combatant concept a combatant. bly narrowed Quiñn, Court held battlefield. citizen- an individual’s Any implication that mili- buried their had who petitioners, an his detention prevents ship status arriving secretly after tary uniforms directly afoul also runs enemy combatant belligerents “less States, no were United Quirin. holding Court’s of the “not they if had even combatants]” [i.e. law of war Quirin clear makes commit attempted to or actually committed citi- claim American trumps any based the the- entered depredation or any act of States “Citizenship in the United zenship: military operations.” of active or zone atre combatant] enemy belligerent [i.e. of of The 2. failure at conse- him from not relieve does aspect of appreciate plurality is which unlawful belligerency a quences of The faulty premise. in a Quirin results war.” law of because violation in or- mistakenly presumes plurality 2. U.S. at combatant, an individ- to be der or at time one present, been have ual must 2. ante another, active battlefield. on an a combat- status as on one’s Depending not an al-Marri was (finding that at 231 non-combatant, rights different because, among other ant or enemy combatant instance, combat- For attach.6 obligations to have been alleged reasons, “not he was may legitimate- only ones who Af- ants are the war during battlefield on the war,” name- “the carry operations con- out Quirin makes plain ly ghanistan”). supra, Winthrop, of force. ly the use broader. is much cept of combatant they may only lawful- Consequently, citizenship status Likewise, person’s However, in forces. ly opposing kill the status. of his not determinative combat- power, exercising this awesome fact length the discusses plurality combatants. target fellow may ants lawfully al-Marri, who as an alien begun,” course, And, “once war States, “cer- receives entered United time “attacked] combatants those [legal] protections including tain — captured).” (unless are they wounded Process *96 the Due by guaranteed rights supra, Walzer, at 138. States. the United within Clause”—while to follow required are also this Combatants emphasizes plurality 222. The Ante at the law against Offenses laws of war. allowing the de- to demonstrate point see Congress, by may be defined alien, of war would al-Marri, a lawful of tention 2113-14; 2107, Wal- smith, also see supra, at Non-combatants, referred known and also 6. 138-59; civilians, Winthrop, supra, at zer, by supra, defini- are at plurality as by the a combatant. deemed anyone is not who tion See, 778-79. 60; Beard, Bradley & Gold- supra, at e.g., 318 Const, I., 8, 10, §
U.S.
art
cl.
or based on clothing as the troops of the Government
“the
war,”
common law of
see
v.
Hamdan
who made
prisoners”).
them
Rumsfeld,
557,
2749,
126 S.Ct.
If a combatant
war,
violates the
of
law
2780,
(2006).
Likewise, the category of weap- unlawful demn this or particular chang- ons, though consistent in principle, ing law of war. I list but a few examples “increased in modern times” with the de- of how law of war has accommodated velopment of new and more devastating circumstances, altered but they serve to weaponry. Winthrop, supra, at 784. Giv- a larger point: demonstrate in order to en the frequency of technological changes effectuate purposes, its the law of war has *99 terrorists II.” Id. Modern World War principles If after other static. remained never surrounding com- into the blend changed, typically there have of war law of the deliberately at soft tar- strike munity or immutable and changeless nothing should other buildings and enemy combatant. as office gets, of such the definition about This makes public square. venues the C. current conflict es- the the “battlefield” ter- against global struggle current unbounded, The tra- sentially and renders of hallmarks of the some rorism bears to determine indicia used ditional armed ene- it consists war: traditional status, on a appearance such as ideological political fighting over uniform, mies of a wearing and the battlefield are However, characteristics other goals. posed woefully unreflective of risks clearly new. organizations. terrorist is the First, importantly, most dis- changes in Finally, warfare law of war war. The fights change who of state- presence previously cussed —the regulate encoun- initially designed targeting innocent intent less terrorists However, the nation-states. between ters the fact that magnified by civilians—are security nation’s our threats to greatest destruction, whether mass weapons of longer No actors. include stateless now nature, chemical, or nuclear biological, na- to individual tethered are our enemies Richard readily available. See are more organiza- instead, are diffuse tions; they The Posner, Con- Not a Suicide Pact: A. many dif- from of citizens comprised tions Emergen- Time National in a stitution globe. Put around the countries ferent (2006) potential effects (discussing 2cy support may find while terrorism simply, of mass with weapons terrorist of a strike nation-states, it does from sponsorship destruction). simply, conse- Put enterprise. to be a state-based not need are addressing risks these quences of not recognized specifically Congress gen- they were today than vastly greater threat presented emergence can single terrorist Today, a ago. eration it when authorized stateless actors of civilians thousands upon kill thousands necessary appro- all “to use President the case simply It cannot be instant. in an nations, organi- those force priate so bound war must be that the law of zations, planned, determines persons he abil- hinders a nation’s obsolescence committed, authorized, the terror- or aided new threats. recognize ity to September occurred on attacks that ist AUMF, (emphasis 115 Stat. 224 2001.” resists surprisingly plurality added). as it has evolved the law of war idea that changed circumstances. to these applies
Second, by terror- employed means ignore This would seem Ante at 245. in the breakdown” “represent! ] [a] ists hap- even events the fact that the 9/11 in the sec- first worked out “political code or remember witnessed all who pened; century and nineteenth half of the ond warfare doubt have no them of war to the laws roughly analogous phase. dangerous new and more Walzer, reached out the same time.” worked I offer “no Still, insists plurality acts Although terrorist-like swpra, at 198. for the assertion authority” war, legal ter- modern always have occurred Id. evolving. in fact been law of war has is, random murder “the rorism—-that fact, authority is there. legal But strategy as a people” “emerged innocent — plu- authority right before legal period revolutionary struggle only rality’s eyes. In the Congress AUMF cer- combatant? The Court *100 tainly accepted plurality what the does not: insists Having we consult the law of war. principles that the traditional of the law of examined the law of war and considered war can adapted changed be circum- changes the recent in warfare and interna- stances. The text of the recognizes relations, AUMF tional I believe that three crite- that traditional concepts such as “battle- ria identify qualifies best who enemy as an “nationality” field” and capture do not combatant in the current conflict. presented risks by terrorists bent on repli- I do that suggest only not these are the cating the events of plurality 9/11. criteria that might be set forth. Nor contends, however, that Congress’s view of I presumptuous would be so suggest as to law of war principles should make not the that these criteria will pros- eliminate the slightest constitutional difference. See pect do, however, of difficult I cases. ante 245 n. 24. In permitting think it critical is some develop general democratic branches to take into account rules that may so cases such as al-Marri’s changes in modern warfare the plurality principled be resolved on a rather than an plainly traps this nation in a warp. time fact, ad hoc basis. In until general some And in denying Congress’s expression un- forth, guidance is set the executive will any der the AUMF and all constitutional have no idea which detentions are effect, plurality continues its course of permissible plainly beyond and which are reading § I power Article 8 war right constitutional bounds. And gener- without out of the document. Id. guidance, al the fear and specter of an AUMF, In passing the Congress sought open-ended executive power detention recognize that the world around us persons lawfully in country will re- contrast, changes; plurality’s view main. of that world quite remains dangerously Thus, I while do not for a moment con- fact, static. plurality while the pro- any tend that set of criteria will be free pounds its view in guise of interpreting difficulty, from I emphatically do contend AUMF, interpretation its its —and that these three criteria conform to the quaint commitment to notions of battle- evolving principles war; of the law of fields and nationality textually so in- —is they apply limiting principle correct, hardly it is speculative to combatant detentions that the suppose plurality’s that the interpretation has failed to suggest; they and that should propounded is as a constitutional limitation avoid the serious “constitutional concerns” on the executive as well. Whatever the that the plurality raise, and various amici be, may case it binds the nation to law of held, if the AUMF were Ias believe it war concepts that even the most casual be, must to allow the detention of an ene- observer of modern terrorist tactics would my apprehended on American accept. never
soil. See ante at 226.
D.
The first
two criteria determine who
It
undisputed
combatants,
is
“enemy.”
constitutes an
Historically, the
if properly
such, may
classified as
conception
“enemy”
de-
has been nation-
tained
military.
However,
542 based.
prior
discussed
516-19, 533-35,
U.S. at
section,
Under this those who mili- plans use a terrorist act but is not tary-like against force American organization soldiers otherwise affiliated with an or or obviously qualify civilians country as combat- congressional procla- covered a Similarly, ants. members of an enemy Timothy mation. McVeigh is one example sleeper terrorist cell that steps, have taken that comes to mind. Because per- such a nature, if preliminary even toward an son is not a member of an organiza- act of tion, destruction are may also considered com- he not be detained an enemy as Conversely, persons traditionally batants. combatant under the above criteria. In- civilians, deed, considered such as members of Congress has never declared war organization possess against who do not a single individual or even a dis- (unless hostile military designs, or are non-com- conspiracy crete the Barbary pi- batants and not be detained qualify), rates it is difficult to envision military. This persons includes who would a scenario in which it would. This un- is non-combatants, clearly be “phy- such as a surprising, part prosecutions because of sician Qaeda,” who treated a member of al individual ordinarily pres- terrorists do not they because intend no harm persons or ent the logistical, same sort of information- property. al, Ante at 226. persons Such and evidentiary problems large scale subject would not be to military detention. terrorist networks or nations. supra Section II. Two further examples may help illus- trate scope of this However, framework. First is way this in suggests no person joins a who a organization terrorist prohibited executive is acting from after Congress has authorized the use of preventively Rather, in such instances. military against force the respective group. simply means that posed by threat conflict, In the present this would include such an individual must pur- be addressed Qaeda new recruits to al or its affiliates suant to statutory proce- more traditional criteria, after dures, Under the warrant, above such such as a material 9/11. witness persons clearly part are “enemy,” § see 18 U.S.C. or indictment under First, significant crimi- is the political relevant there any potentially number of statutes, see, congressional Spe- check of authorization. e.g., 18 U.S.C. § 2332a nal cifically, absent some limited inherent au- threatened, or attempted, (prohibiting thority during emergency, needed times of weapon of a of mass destruc- actual use may only per- the executive detain those tion); (prohibiting § acts 18 U.S.C. 2332b Congress sons whom against has author- transcending national bound- of terrorism history ized the use of force. If § aries); (prohibiting the 18 U.S.C. 2332f indicator, Congress does not take such a public govern- use or bombing places Indeed, lightly. decision it was the dire facilities); (prohib- § 1751 ment 18 U.S.C. 11th September gave events of rise to to assassi- iting assassinating conspiring military present the use of force the President or Vice President nate instance, likely it is emer- 46502(a)(2) States); § 49 U.S.C. United gencies trigger magnitude similar will conspiring to (prohibiting committing or response. similar 844(f) § piracy); aircraft 18 U.S.C. commit Second, even if Congress were to au- (prohibiting damage or destruction military thorize the use of force property real of the Unit- any personal or particular group, it would not be authoriz- States). short, person can such a ed ing a sweep the executive to make on the neutralized, but not surely be detained membership. basis of mere This is be- through the means of detention. more, membership, cause without is not *103 sum, following In three criteria must enough qualify enemy to an as combatant in to be met order for someone be classi- Rather, my proposed under criteria. enemy person combatant: fied as person question steps must have taken (1) (2) an organiza- must be a member of military organi- goals to further the Congress has against tion or nation whom Thus, McCarthy-like zation. accusations mili- declared war or authorized use of group membership of mere would not suf- (3) force, plans or en- tary knowingly and fice as a basis for detention. in conduct that harms or aims to gages Third, subject persons military to deten- persons property purpose harm for the chal- opportunity tion are afforded the to furthering military goals of the ene- accuracy of their detention be- lenge my organization. nation or fore a neutral decisionmaker accordance in Hamdi with the framework articulated beyond those These three criteria reach possess- This ensures that the they may constitu- plurality because justify evidence to a measure es sufficient include, authorizes, if tionally Congress so military as serious as detention. any persons arrested outside formal bat- power, checks on executive Given these uniform, tlefield, persons per- not in and roundups fear of massive or reckless crite- sons arrested on American soil. The disregard liberty for human would be mis- limited, however, ria are at the same time placed. granting as and should not be construed check to brand cer-
the executive blank Furthermore, accommo- these criteria groups tain domestic as subversive and changes in a manner that is date recent militarily pleases. detain whomever it In- principles with the law of war’s consistent deed, criteria, there are at instance, under these one of the purposes. and For on the significant category least three limitations purposes of the militarily subject detain ability per- people executive’s is to limit the number of detention, force, military including military lawfully residing sons in the United States. military to those who threaten (finding closely harm. that someone “who is asso- pur- Each of the above criteria serve that Qaeda, ciated with al entity with which they pose, persons as exclude who are not war; the United States is at up who took enemy organizations members of as well arms on behalf of that persons groups try as such who do not country our foreign combat zone of to do Another purpose harm. of the cate- war; and who thereafter traveled to gory persons may determine which the United purpose States for the avowed properly detained in order to eliminate the prosecuting of further that war on Ameri- they pose. threat The above criteria are soil, can against American and tar- citizens purpose, they also consistent with that combatant) gets” qualified as an detain, allow the without fear of omitted). (emphasis having to an inability release because of Moreover, clearly these criteria do not prosecute, present those who real and seri- run potential afoul of three constitutional security safety. ous threats to our scope concerns. First is the of the execu-
E.
power
widely
tive’s
under Article II. It is
accepted that the President
in-
has some
comporting
addition to
with tradition
powers,
herent constitutional
particularly
al
principles
purposes,
law of war
to act
times of emergency
large
when
these three criteria are
also
line with all
numbers of American lives
be at
precedent
Court and circuit
70,
stake. See The
No.
Federalist
Quirin,
parte
the matter. See Ex
317 U.S.
(Alexander Hamilton)
(Clinton Rossiter
(1942);
63 S.Ct.
Second
required
under
the due
which
detention of al-Marri would “so alter the
that American citizens detained as
clause
constitutional
our Republic”
foundations of
enemy
given meaningful
“be
combatants
patently
as to “render
lifeless” is
[them]
factual
opportunity to contest the
basis
incorrect. Ante at 63. For the reasons
that
before a neutral decision-
detention
discussed,
perfectly
al-Marri’s detention
maker.”
fact,
accords with the Constitution.
In
Hamdi established
S.Ct. 2633. Whereas
is difficult to square
plurality’s
ex-
procedures
type
to which at least one
pressed
constitutionality
concern over the
entitled,
enemy
the cri-
of al-Marri’s detention with
express
its
teria discussed above address the anteced-
questioning of our effort to establish con-
question
qualifies
enemy
of who
as an
ent
stitutional limits
bind “both the execu-
way,
ap-
Put
this
combatant.
another
branches.” Ante at 49.
legislative
tive and
proach
legal
articulates a substantive
defi-
It
plurality
is further curious that
combatant,
whereas Ham-
enemy
nition of
exception
inquiry
should take
to an
di
alleged
one class of
combatants
enables
Boumediene instructs us to undertake.
challenge the factual basis
procedurally
Boumediene,
See
at 2271 (stating
short,
Hamdi does
of their detention.
authority depends
that the executive’s
not
present any
problem
not
constitutional
authorizes,
only on what the AUMF
but
category
combatant as de-
permits”).
also on what “the Constitution
fined
criteria.
these
Regardless,
plurali-
to the extent that the
Finally,
criteria do not contravene
these
ty’s
interpretation
erroneous
of the AUMF
parte
established Ex
Mil
principles
this case was influenced
constitution-
(4 Wall.) 2,
ligan,
The
in this case
Trader)
Moreover, nothing
opinion
by Judge
authored
could be more con-
finds
trary
to the
process
al-Marri
be detained as an
Court’s due
ene-
ab initio
my
jurisprudence than the
imposition
combatant under the
AUMF. As ex-
pressed
opinion,
procedural
requirements
earlier in this
I
inflexible
share
fully my
categorical
based on artificial and
good colleague’s
distinc-
views
matter.
tions. Procedures should be ordained not
necessary
the outset but as
to ensure
My
there,
agreement ends
however.
accurate
impose
determinations. To
such
process
The concurrence asserts that “the
ab initio
requirements
disregards
challenge
afforded al-Marri” to
his deten-
“prudent
approach
and incremental”
re-
require-
tion “did not meet the minimal
Hamdi quired
neglects
the fact
ments of due process guaranteed by the
accuracy
must be the touchstone of
Fifth Amendment.” Ante at 253-54.
I
any procedural
inquiry.
due
error,
think this view is in
and its conse-
2633;
quences are serious.
Boumediene,
see also
shifting
outlined in
approach
A.
Wright,
Al-Marri v.
F.Supp.2d
(D.S.C.2006). First, it
required
778-80
proceeding
A brief review of the
below
provide
factual
government to
notice of the
will illustrate the soundness of the district
Next,
for
if
basis
al-Marri’s detention.
July
approach.
court’s
counsel
government
produce
able
credible
petition
corpus
filed a
for a writ of habeas
evidence that al-Marri was
indeed
ene
on al-Marri’s behalf
the District of
combatant,
my
the burden would shift to
petition claimed that
South Carolina. The
government’s
al-Marri
to rebut
evi
al-Marri could not be detained as an ene-
Finally,
magistrate judge
dence.
not
combatant,
my
government
and that
that,
ed
if al-Marri met his burden
criminally charge
had to either
or release
evidence,”
presenting
persuasive
“more
alternative,
sought
him.
In the
al-Marri
would either have to re
hearing which he would be able to chal-
participate
lease al-Marri or
in a “full-
counsel,
lenge, with the
assistance
adversary hearing,”
blown
which
in
would
factual
detention.
It
basis
his
should
“greater procedural
evidentiary
clude
that al-Marri
had the
noted
assis-
safeguards”
stage
than the first
every proceeding
tance of counsel in
since
burden-shifting process. J.A. 191.
filing
petition.
of this habeas
procedures,
Pursuant
to these
mag-
later,
year
One
after further pleadings
judge
istrate
found that
Rapp
Declara-
party,
from each
the district court deter
which,
earlier, present-
as described
tion—
that,
alleged,
mined
based on the facts
al-
government’s
supporting
ed the
evidence
Marri
could be detained as an
com
detention,
supra
see
al-Marri’s
at 135—
Hanft,
See Al-Marri v.
batant.
government’s
satisfied the
initial burdens
(D.S.C.2005).
F.Supp.2d
The dis
providing
al-Marri with notice of the
that,
trict
recognized
court further
under
factual basis for his detention and produc-
Court’s Hamdi
decision,
al-
ing credible evidence that al-Marri was
right
challenge
Marri had the
the factu
an enemy
magis-
indeed
combatant. The
al
hearing
basis
his detention
judge
gave
sixty days
trate
then
al-Marri
requirements
satisfied
constitutional
present
rebuttal evidence.
See id.
procedural
process.
due
681-82.
During
sixty day
The district court referred the ease to a
period,
al-Marri
magistrate judge
pro
protested
ability
to determine what
respond
to the
constitutionally
cess was
due
un Rapp
impeded by
al-Marri
Declaration was
the fact
der Hamdi. See id. at 682.
large portions
of the Declaration were
*108
therefore,
proceedings provided al-Marri
satisfied
and,
unavailable to
classified
process requirements.
with Hamdi’s due
magistrate judge agreed
him. The
that, in
parties
and advised
al-Marri
clear,
As Hamdi made
a detainee held
adversary hearing
determining whether
right
has the
to chal-
United States
only consider evi-
necessary, he would
was
lenge
as an
com-
his classification
response
In
to al-Marri.
dence disclosed
Though not entitled to a full
batant.10
filed an
ruling,
to this
trial, enemy
criminal
combatants are enti-
Declaration,
Rapp
updated version
protections
tled to the “core”
that consti-
declassified.
many portions
requirements
tute the “minimum
of due
process.”
response
subsequently filed
Al-Marri
procedural
S.Ct. 2633. These core
In his
Rapp Declaration.
updated
to the
first,
rights are threefold:
a detainee
generally denied the
response, al-Marri
notice of the factual
“must receive
basis
claims,
...
“decline[d]
but
government’s
classification”; second,
for his
a detainee
proving
his own
assume the burden
opportunity
“a fair
to rebut the
must have
Al-Marri,
F.Supp.2d at
innocence.”
assertions”;
and,
factual
Government’s
devel
Claiming
procedures
that the
784.
third,
occur
hearing
must
“before
by magistrate judge
were “uncon
oped
533, 124
neutral decisionmaker.” Id. un-American,”
stitutional, unlawful,
al-
The Hamdi
opinion repeated-
S.Ct. 2633.
any sort of rebuttal
Marri refused to offer
ly makes clear that it is these three “es-
evidence. Id.
government’s
to the
promises
sential constitutional
[that]
“any
failed to offer
Because al-Marri
not be eroded.” Id.
behalf,”
magistrate
on his
evidence
of al-Marri’s
Even a brief examination
of al-
judge recommended the dismissal
that he
proceedings demonstrate
received
Id. at 785
(emphasis in
petition.
Marri’s
the benefit of each of these “essential
subsequently
The district court
original).
promises.”
begin,
To
the district court
a de novo review of the
pro-
conducted
a “neutral decision-
unquestionably
was
magistrate judge, and
ceedings before the
Similarly,
certainly
al-Marri
re-
maker.”
adopted the
objections,
over al-Marri’s
of the factual basis
ceived sufficient “notice
magistrate
judge’s recommendations
fact,
magis-
for his classification.”
id. Because al-Marri failed “be-
full. stated that he would
explicitly
trate
his “classification
yond question” to rebut
al-
made available to
consider information
... as an
combat-
and detention
al-Marri
determining
when
whether
Marri
ant,”
court dismissed al-Mar-
the district
indeed an
combatant.
Id.
petition.
ri’s habeas
end,
government put
forth
To this
Declaration,
ex-
which contained
Rapp
B.
of al-Marri’s affiliation
tensive evidence
designs.
destructive
Qaeda
han- with al
and his
magistrate judges
The district and
instance,
at-
alleged
that al-Marri
admirably.
I can find no For
dled this case
camp
Qaeda
training
an al
terrorist
that the habeas
tended
fault with their conclusion
citizens,
protection
need not
level
I
Specifically,
established a frame-
Hamdi
adjudicating
petitions
purposes
work for
the habeas
for the
of this case.
resolve the issue
Hamdi, 542 U.S. at
“citizen-detainee[s].”
procedures provided al-
This is because the
Although
gov-
both the
the district court begin, To the battlefield/non-battlefield “[njeither nor the rule of law in Ham- due is nowhere to be found distinction di, party right par- a general grant re- the case on which the concurrence procedures court he discus- lies. See ante ticipate only at 267-70. Hamdi’s proof requirements whenev- constitutional present deems best or sion of the Al-Marri, contains F.Supp.2d “enemy proceedings” it him.” er suits lo- qualification based on no limitation or at 785. informa- information and the risk of such 542 U.S. at capture. cus to terrorist net- 2633; being 124 tion transmitted also id. at see S.Ct. affiliates, confederates, works, as “what (framing the issue S.Ct. more, if when equally, pronounced a citizen constitutionally due process is sleeper Qaeda agent op- a al enemy-combatant dealing sta- disputes his who erating within our borders. tus”); (applying id. at identify pro- Mathews framework contrary, its contention to the Despite constitutional proper that “strikes the cess at 270 n. the concurrence thus see ante citizen is balance when United States plurality: commits the same error as the States as detained United on an artifi- categorically rests its decision *111 combatant”). Indeed, plain Hamdi makes battlefield and cial distinction between in “the ene- procedures required that the Indeed, capture. it offers non-battlefield my-combatant setting” apply equally to all meaningful no other rationale for distin- combatants, just enemy captured not those guishing procedures approved between the Id. at foreign on a battlefield. procedures afforded of Hamdi and S.Ct. 2633. See, e.g., ante at 267-70 & al-Marri. Supreme n. 269-70. The Court has Furthermore, although the concurrence concerning the refused to resolve issues erroneously that the “risk detain- claims of enemy due combatants based on greater “much inside the ing civilian” is simplicity categories, the faux of inflexible than” on “a conventional United States deny the realities of and we should foreign of a battlefield within the borders contemporary by contravening conflict its country,” this is often not the case. Ante directive. Indeed, at 270. the modern battlefield is shifting
often cluttered with alliances distinguishing lack uniforms. of One 2. villages need to think of the in Viet- In addition to its distinction between recog- detainees, Afghanistan nam or the hills of to and non-battlefield battlefield discerning friend from foe can be develops proce- nize another the concurrence very foreign elusive on a battlefield. dural innovation: the “most reliable avail- requirement. require- able evidence” categorically refusal to distin- Hamdi’s posits right ment that al-Marri has the guish detainees based on their locus of “ require government produce ‘the true nature of the capture reflects the reliable available evidence’ that he is most Congress recognized current conflict. As enemy combatant.” Ante 271. This in the AUMF and as the nature of the 9/11 just requirement problematic as clear, pellucidly the struggle attacks made of attempt appropriate dictate the level al-Qaeda foreign is not bound capture. on the of procedure based locus supra at lands or distant shores. See 320- standard, deriving for this the concur- legislatively The need sanctioned following rence relies on the observation procedures accordance with laws “[Ejnemy dissipate simply pro- war does not because an made in Hamdi: combatant may apprehended ceedings combatant is domes- be tailored alleviate their tically foreign potential than on a battlefield. uncommon to burden the Execu- rather fact, supra ongoing military at 306-11. In the concerns tive at a time of conflict. underlying pro- Hearsay, example, the need for more limited need to be hearings, accepted cedures in as the most reliable available evi- highly pro- sensitive dence from the in such a presence such as the Government 533-34, Hamdi, evidence. Id. at Government’s” ceeding.” added). Because the (quot- (emphasis S.Ct. 2633 2633; see ante Hamdi). far Rapp com- Declaration is more extensive Rather than take this ing Declaration, and detailed than the Mobbs clearly example of is—an ment for what ini- government’s com- the former satisfies afforded procedures how evidentiary purpose tial burden and serves the basic for the need to account batants why to al-Marri present affording notice he is frequently that are burdens develops a detained. concurrence such cases—the that the requirement
hardline
Moreover, beyond being misapplica-
show,
presenta-
initial
always
its
must
tion of
this “most reliable available
tion,
is the most
that the evidence offered
contrary
approach
plainly
is also
evidence”
reliable evidence available.
procedural
to the fundamental
tenets of
As
process.
available evi- due
Court
a “most reliable
Imposing
held,
due
very
repeatedly
would
the touchstone
at the
outset
dence” standard
accuracy.
In-
process inquiry
Hamdi.
must be
misapplication of
a fundamental
deed,
imposition
proce-
of additional
abandons the care-
begin,
approach
To
*112
traditionally
protections
dural
been
the actual “burden-
ful incrementalism and
ability
safeguards
of those
to
by
linked to
set forth
shifting scheme”
Hamdi,
protect-
prevent
deprivations
542
erroneous
in that decision.
U.S.
Court
Eldridge,
v.
534,
earli-
ed interests. See Mathews
124
2633. As discussed
at
S.Ct.
319, 343,
893, 47 L.Ed.2d
424 U.S.
96 S.Ct.
er,
only requires
government
Hamdi
Boumediene,
(1976);
at
128 S.Ct.
2268-
forth credible evidence 18
initially “put[]
to
Hamdi,
529, 534,
69;
124
542
at
meets the ene-
U.S.
petitioner
that the habeas
Lane,
2633;
Teague v.
489 U.S.
govern-
The
see also
my-combatant criteria.” Id.
1060,
288, 313,
L.Ed.2d 334
109 S.Ct.
103
put on further evidence
ment need not
(1989) (noting
process requires
that due
responds with at least
unless the detainee
“procedures
application
the retroactive
that “he falls outside
some evidence
which the likelihood of an accurate
By forsaking the framework without
criteria.” Id.
diminished”);
Hamdi,
Lau-
seriously
is
the concurrence re-
conviction
by
envisioned
Tribe, American Constitutional
to contest
rence H.
any obligation
al-Marri of
lieves
ed.1988)
(2d
Law,
10-13,
(noting
§
at 714
the factual basis of his detention.
safeguards”
“value
procedural
[of]
that the
concurrence, however,
indicates
by
potential
their
primarily
determined
insuffi-
Rapp
that the
Declaration
applica-
“factual error in the
to minimize
simply
Hamdi. This is
cient under
rules”).
of the relevant substantive
tion
Indeed,
recog-
expressly
Hamdi
the case.
adjustments that
In order to allow for
initial burden
government’s
nized that the
Supreme Court
accuracy, the
by
knowledgeable
help
“a
affi-
ensure
may be satisfied
need for
consistently emphasized the
on has
the evidence
“summarize[s]”
ant” who
Hamdi,
permit
that would
dis-
procedures
was based.
which the detention
flexible
Likewise,
employ protections pursuant
534,
trict courts
at
By imposing a “most reliable available The “most reliable evidence” available requirement government on the evidence” requirement provide al-Marri with would very hearing, at of a Hamdi outset govern- access to this evidence unless the adopted approach has concurrence production that its ment demonstrated neglects principles these foundational “impractical, outweighed by national secu- Indeed, procedural process. due cate- interests, rity unduly or otherwise burden- gorically applying require- its additional words, some.” Id. at 273. In other under al-Marri though ment even has never cast approach, the default scenario would accuracy slightest bit of doubt on the discovery grant rights al-Marri extensive status, of his the concur- regardless of whether he could raise even recognize rence fails to that due is slightest as to the basis of his doubt accuracy. first and foremost about And detention. forcing produce danger- It is difficult to think of a more “most reliable available evidence” at the way highly ous to handle the sensitive involving outset of all cases non-battlefield invariably ap- used to information detainees, the concurrence diminishes the prehend sleeper agents such as terrorist ability prudently of district courts to fuzzy al-Marri. The “most avail- reliable
incrementally apply procedures based on provides able evidence” district standard particular circumstances and need for precious guidance. courts with little In- accuracy at in the case hand. deed, given district courts are little di- approach large
This threatens conse- rection as to what constitutes the “most quences. recognizes, As the concurrence reliable available evidence” or as to the procedural procedures the breadth of de- that should be used to make al-Marri’s Instead, staggering. mands are Ante at 265-66 & such a determination. district merely courts are told to resolve these benefit in ensuring accurate determina- evidentiary questions tions, threshold to their extraordinary may costs that Id. at This lack “satisfaction.” result compelled from the disclosure of clarity provides nothing detainees with less sensitive information. engage “graymail” than an invitation to course, Of procedures the sorts of re- harassing supra and other tactics. See at quested by al-Marri and contemplated by 308-09. the concurrence’s “most reliable available Judge Gregory recognizes that the con- evidence” requirement may eventually approach currence’s “will leave the district come play into in some proceed- Hamdi questions court with more than answers.” ings. protections. So too CIPA But however, attempts,
Ante at 277. He procedures these should be if used uncertainty by resolve this suggesting pro- they are necessary to ensure the accuracy In particular, sug- cedures of his own. he of a Applying detention. proce- additional gests employ that the district court at the is, dures at the outset to understate the “in-camera, proceedings outset of ex- matter, ill-advised. parte hearing,” prec- modeled after circuit recognized Hamdi imposition that the CIPA,
edent and to determine which evi- additional safeguards com- dence should turned be over to al-Marri. batant setting has the poten- “uncommon I respect my good Id. 281-83. While tial to burden the Executive at a time of colleague’s attempt guidance to provide ongoing military remand, conflict.” I the district court on find the Hamdi 2633; procedures he Ernest A. proposes equally Young, problematic suggested by as those The Constitution Outside the the con- Con- stitution, (2007). begin, relying currence. To 117 Yale CIPA L.J. transporting the outset risks wholesale a Granting al-Marri the benefit of additional specifically passed statute crim- address protections, though even he has never used prosecutions completely inal into the dif- procedures him, available to and even See, ferent context of detention. though no evidence emerged sug- e.g., § Ill app. (stating 18 U.S.C. gest that these additional protections are *114 protections the designed of CIPA are to needed, imposes procedural burdens with- “prevent unnecessary disclosure of classi- any out indication that these burdens will fied any information involved in criminal produce a corresponding reduction in the added)). proceeding” (emphasis As dis- deprivation. likelihood of erroneous Due II, cussed earlier in Section Congress process simply require does not such a passed fully the AUMF aware of the exis- result. CIPA, tence of but it nevertheless author- ized the President to detain com- D. batants because of the inherent limitations Process is inestimable value to law. justice system dealing the criminal in ensuring It is vital in fair Moreover, with treatment to matters of war. under individuals, in preventing arbitrary ex- hearing” approach, this “in-camera al-Mar- state, power by holding ri ercise of and in again provided is once with all sorts authority the vast arsenal of in procedures having before to executive cast else, yet, check. And slightest accuracy doubt on the of his de- as with so much risk, tention. simply There is no reason to there is balance. Taken to sufficient very every enemy lengths, at the outset of process accomplish combat- can the dis- ant proceeding habeas and without meaningful memberment of democratic much complishing procedurally vital of what the frustration of and the prerogatives far, accomplish process plurality attempts to substan- Taken too ends. substantive on the elected tively officials limitation branch- essentially paralyze public can —a ongoing strug- ability prosecute wel- to promote public to es’ attempts their and, area, gle against global terror accordance provide even the fare in this I am reluctant safety. with the laws of war. public assurances of most basic grave of others on so supplant the wisdom in Hamdi sought Court own, I hold my a matter with and would the beneficial strike the balance between that under the AUMF and in accordance hand, its process, use of on the one al-Marri was accorded As not- detrimental overuse on other. process he was due—the which he process Hamdi ed, initial placed burden sought to utilize. never once proceedings gov- on the ernment, give required THE DETENTION OF AL-MARRI V. detention, notice of the factual basis for ACCORDS WITH AMERICA’S opportu- provided the detainee with TRADITION. LEGAL government’s evi- nity to controvert finally step At I to take a back. dence before a neutral decisionmaker. wish Hamdi was keen- time, however, September judges the aftermath of the same their own distinctive ten- ly deprive experienced conscious of the need not to have guardians sions. As of the nation’s consti- legislative executive and branches tradition, danger struggled to deal with the new our tutional courts have tools judicial any- requirement placing imprimatur midst. Its seminal is that the avoid place government’s thing priceless detainee evidence inimical to the nation’s heri- tage liberty respect in some doubt the refinements of and timeless before time, justice process play. rights. criminal come into human At the same we By relieving seeing again of that threshold dread the faces of the strick- detainee fallen, burden, being we take at least the first initial en and the left to wonder Hamdi hearings grave if constitutional steps making toward ever some miscalculation justice replicative played part more of the criminal of our own even some small process sealing countryman’s full and familiar a fellow sad fate. whose —a regalia profession may enough conflicting sacrificing our soon These concerns—of adopt. jeopardizing values or lives—are not ab- in al- sent the debate over the detention The trans- This would be a mistake. Marri’s case. of com- gressions al-Marri is accused crimes, mitting ordinary although Writing heyday are not of Jacksonian de- *115 mocracy, plurality ap- Tocqueville both the and the concurrence Alexis de sketched pear varying degrees to treat them in the elements of American life that he Instead, thought apart: such. the destructive acts of set our devotion to the us 9/11 man, individualism, akin than to crime. our equality are more to warfare of our Congress enterprise, practice That was the view that ex- commitment to our of patriotism, That com- pressed passing religion, profound the AUMF. was our our expressed press, in mitment to a free and our devotion the view the Court Hamdi by declining Tocque- to the rule of law. Alexis de its decision. Whether (J.P. Democracy in America ville, apply by casting Mayer aside the AUMF framework, ed., trans., Hamdi George toward the Lawrence Perennial we move 2000). model, it justice point, criminal the concurrence ac- Classics On this last is destroying places worship, of no intent to said, struggle of have done years the last greater necessary harm that than “executive cause is damage greatest their —with enemy. Military commitment to defeat a determined lessening our unilateralism” detention, very carefully by notion circumscribed “mock[ing] the process, due cardinal of [making] light principle and of law of war’s discrimi- of constitutionalism nation, disproportionate response rule of law.” is no to live any aspiration Tribe, H. those who aim to murder of thou- Katyal & Laurence scores Neal K. civilians; War, of there no moral Deciding Trying equiv- sands Waging Guilt: 1259, alence, contrast, Tribunals, only nothing 111 Yale L.J. our Military (2002). Likewise, alleged, it is constitutional tradition makes the deten- 1259-60 Qaeda al strong in this case tion of terrorists with ties rejection petition of al-Marri’s simply they prefer unlawful because mass alter the constitutional founda- “would so killings foreign here rather than on some that it “would have Republic,” tions of our Quirin, for the Constitu- battlefield. See consequences disastrous country.” Ante 252-53. S.Ct. tion—and fair, I think indictments I do not these controversy The immense over al-Mar- why al-Mar- explain it essential to
believe historical per- ri’s detention obscures the of would leave the beacon ri’s detention I spective. do not mean to whitewash bright and un- our constitutionalism wrongs we have committed in the last dimmed. years seven Ghraib stained and sul- —Abu for; government’s al-Marri’s de- lied all we stand Any perspective sound on immi- magnitude roundup and detention of Muslim tention must start with brought lasting grants It bears re- the immediate aftermath what on. 9/11 pro- to due happened Sep- transgressed that what our commitment membrance consideration; symbols cess and individualized upon tember was attack controversial, democracy. Bay proven It of American freedom and Guantanamo on an slaughter sure. We have stumbled person was a three-thousand victims, landscape, and sometimes worse. going daily about their lives unknown whose something meaningful, in an effort to do consider, example, the Red But any wrong against those were innocent af- roundup of social dissidents Scare attacked them. The AUMF ex- who I, ter World War or the internment outrage sorrow and pressed this nation’s during Japanese-Americans World War its intended happened. at what To credit II, MeCarthyism during surge or the respects Congress’s intention and scope War, of dis- bludgeoning or the Cold day. died that those who stages of during the last Vietnam. sent history moments in our detention of What makes those The notion very al- sad that so much of the coun- Qaeda al terrorists such as so suspected hold, try of them. A fever took drag approved threatens to us even Marri somehow country in our often bore incrementally degraded level and minorities towards detention— the brunt of it. But al-Marri’s simply of our adversaries is unfathomable. Qaeda capture two and the of al members Al-Marri’s detention is one of *116 rage, no anti-Muslim presages combatants our domestic detentions of midst — free rights attacks on Muslims’ basic of years in the seven since the no conducted 9/11 no intent to country equivalent religious speech, no of exercise and attacks. This has faith deny fellow citizens of Muslim jihad, for suicide bombs our appetite no American embrace. As markets, thought of inclusion squares and no public 340 thwarting legitimate persisted, threat has there tations another’s
the terrorist role. dragnet demand for measures has been no culpable in innocent and sweep
that would Rejection of does not petition al-Marri’s alike, demagogic no and there has been by a co- signal pattern some of surrender attempting to demonize our friends figure Congress judiciary rampag- to a equal they may of Muslim faith at home because ing legislative executive branch. a loose national or reli- happen to share branch has not forfeited its constitutional identity abroad. gious with enemies years, In the Con- function. last seven gress passed has at least seven resolutions been, response to Our domestic 9/11 delineating appropriate or statutes the event and judge magnitude of scope response of our nation’s to the ter- history, largely the lessons of measured. threat: the Authorization for of rorist Use carry argu- But that alone does not 2001, 107-40, Military Force in Pub.L. No. Indeed, ment. the reason for our meas- 224; 115 of Stat. USA PATRIOT ACT response chiefly ured has not been execu- 2001, 107-56, 272, No. Pub.L. Stat. forbearance, rather a tive but faithfulness was revised and reauthorized in which Founders, path to the laid down our 2006, 109-177, 192; Pub.L. No. 120 Stat. tripartite with all three branches of our 109-178, 278; Pub.L. No. Stat. government playing form of their constitu- Military Authorization for Use of Force tionally assigned charting role in our 2002, Against Iraq Resolution of Pub.L. Martin, David A. course. See Judicial 107-243, 1498; No. the Home- Stat. Military and the Review Commissions 2002, Security land Act of Pub.L. No. 107- Balance, Striking Act: Right On 296, 2135; 116 Stat. the Detainee Treat- (2007) 344, (noting Am. J. Int’l L. 347-48 109-148, ment Act of Pub.L. No. “productive” colloquy” “interbranch 1001-06, 2680, 2739-44; §§ Stat. 9/11). place took after Military Commissions Act of Pub.L. 2600; No. 120 Stat. and the Pro- merely assig- The Constitution is not an tect America Act of Pub.L. No. 110— rights; nation of it is also allocation of 121 Stat. which amended the For- authority. And it is the structural fea- eign Intelligence Surveillance Act of 1978. tures of our Constitution allowed think Those who these acts ceded too August yet nation bemused in recover power right much to the executive be its of in September. residue fiber Article they may wrong. they But miss a II great embodies the and immediate as- point: congressional crucial these actions sertion of national will. It is the constitu- fought have been on “the boisterous ocean tional function of the to act executive ener- political passions,” of see Letter from getically peril; in time of national no other Thomas Jefferson to Monsieur DuPont de branch remotely capable of is Nemours, 2, 1809, quoted March in The doing power so. But can pro- executive Writings and Selected Thomas Life Jef- liberty through provision mote of secu- (Adrienne Koch & William Pe- ferson rity, liberty through or it can threaten eds., 1993), den and while the results disregard rights. So the balance must any fight pleasing everyone, are never regard, Separation be struck. In this precisely way system sup- our is Hostility Powers does not mean of Powers. posed to work. obligation It is the of each branch to check another, rejection the excesses of but each branch is Nor would the of al-Marri’s equally obliged not to limi- petition signal atrophied judicial forsake its own role. *117 in- actively questions The courts have been more momentous of life and death are stake, struggle in our current than in places volved this nation deepest its bets history. other war in our The amount of upon democracy, people’s safety and the surrounding the litigation struggle against must reside and rest with those who have terrorism would have been unthinkable in the people’s sanction. count, any prior By my conflict. well over I do not mean to minimize the step of subject two dozen cases on the have been detaining militarily someone of lawful sta- court, heard in federal including those tus, seized within country, this I and have Hamdi;
whose names are now familiar:
tried throughout
suggest
the limits that
Hamdan;
Rasul;
Padilla; Moussaoui;
war,
the laws of
the need
congressional
Boumediene. The critics who see these
sanction, and the requirement of some
supine may
decisions as too
right
be
or meaningful form of access to the courts
they may
wrong.
But as al-Marri’s
impose upon this
practice.
executive
See
shows,
appeal
they
day
have had their
and
Al-Marri’s courts and that many ease—like so others in there are limits actions struggle impinging liberty this judiciary been for the that can be in taken —has deep one of name of security. By silences. We never know national rejecting petition, this we proper whether we have struck the would have the bal- chance to liberty recognize ance security, between because the democratic branches we have taken every do know action the executive reasonable and constitutional steps to taking every unprecedented and we do not know address threat threats of global magnitude terror networks in unforeseeable have store. So our coun- try. our belief in ourselves and our institutions persevere has to unprecedented this possible protect It is American values imperfect
world of understanding where Indeed, and American lives. this was the victory the definitions of progress and promise Founding, of our govern- when a proportionate response open are forever Men, ment was “instituted among deriving debate. just powers [its] from the consent of the governed” in order to secure firmly, however, I the “unalien- feel based on the facts Rights” “Liberty” able of both and “Life.” presented, petition al-Marri’s should Independence para. Declaration of be dismissed. The executive’s decision to (U.S.1776). disagree I with the result any similarly detain him—or situated here, reached but I do so in the Qaeda, of al belief lawfully member coun- my colleagues helped have try or some small proportionate not—is a response way to good demonstrate the targeted earnest precisely at those terrorists who values that country animate this slaughtered thousands of civilians on our —values that require prevail. America soil and threaten to do the same to tens of thousands more. His detention is consis- NIEMEYER, Judge, concurring Circuit war, tent with the law of and our constitu- judgment part dissenting requirements tional of due well. part, as indicated herein: product It is a of executive action that has been legislatively sanctioned and it reflects After we received argu- briefs and heard understanding case, the core of our constitution- ment in this Court system al day, at the end of the when handed down its decision in Boumediene v. *118 - — U detainee,” “to ment’s evidence Bush, 128 S.Ct. .S. (2008), foreign exculpatory and consider relevant holding admit L.Ed.2d evidence,” light at the Naval Sta “in detained to make determinations nationals facts,” combat Bay as correct tion at Guantanamo the relevant law and “to for Use of Authorization ants under the during that occurred the [executive] errors (“AUMF”), Pub.L. No. Military Force proceedings,” appropriate and to issue re- (2001), privi 107-40,115 have Stat. lief, including release of the detainee. 128 --, 128 S.Ct. at corpus. of habeas lege short, enemy combatants S.Ct. at 2271. also 41. The Court held op. at Slip Bay under the detained at Guantanamo corpus habeas power to issue judicial when provided the habeas cor- AUMF must be by having a detainee invoked properly process closely equivalent or a pus process judicial “the officer privilege, the habeas at-, slip op. to it. See 128 S.Ct. 63- a authority to make adequate have must of the relevant law light determination the Boumediene Court treated Because ap and to formulate and issue and facts Bay part of the United Guantanamo relief, including, if orders for propriate purpose for the limited of its hold- States necessary, directing prison order fortiori, holding, a extends also to ing, its at 2271. The er’s release.” in the United States as persons detained rejected govern Boumediene Court enemy combatants under the AUMF. that the Detainee Treat argument ment’s Act of Pub.L. No. ment In my judgment, Court’s adequate and effec provided an Stat. holding disposes in Boumediene of the corpus and held tive substitute for habeas procedural issues before us. Because corpus limitation of habeas that the Act’s case afforded al-Marri district court of the Suspension Clause Con violated corpus process the habeas and dismissed stitution. petition procedures fully under consis- process to
Focusing corpus pro- on the essential with traditional habeas tent entitled, whether cess, which such detainees are I would conclude that al-Marri has through corpus pro- habeas or some other all he was due. And process received Congress might provide, cedure legal respect to the district court’s that a detainee must have Court stated properly that al-Marri was de- conclusion “meaningful opportunity to demonstrate tained, agree generally I with the views erro- being pursuant that he is held to the Williams, expressed by Judge Judge Chief of rele- application interpretation neous Wilkinson, Traxler, Judge spe- and I that has “the vant law” before court cifically join Judge in Part II of Traxler’s release of power to order the conditional opinion. Accordingly, I would affirm. unlawfully an individual detained” —both provided by corpus are the habeas
which
I
(internal quota-
process.
to the The court district first addressed the States”; necessary therefore it was and issues, and, legal assuming the facts as- aiding him from al prevent detain him “to true, government serted the it Qaeda in its efforts to attack the United legal concluded as a matter that al-Marri’s authority Acting under the the States.” “proper pursuant detention was to the AUMF, the Attor- the President ordered Hanft, AUMF.” Al-Marri v. 378 to the ney to deliver al-Marri Sec- General (D.S.C.2005). But F.Supp.2d the “as an retary of Defense to be detained open right court left to chal- al-Marri’s then enemy Al-Marri was combatant.” lenge the facts. Brig at the Naval detained Consolidated At a conference a magis status before Charleston, South Carolina. judge, proce trate the court outlined the 8, 2004, July petition al-Marri filed a On dure that would be followed to resolve al- in the district corpus for a writ of habeas dispute By Marri’s of the facts. an order (1) 2241, alleging § court under 28 U.S.C. 19, 2005, magistrate dated December the (2) detention, counsel, right the unlawful judge adopted factfinding an incremental (4) (3) charged, a denial of right to be approach guidance provided on the based (5) interroga- and unlawful process, due Court Hamdi v. Rums and fifth claims are no tion. His second feld, 542 pro- longer part petition a of his (2004). required L.Ed.2d It that al- subject sepa- are now the of a ceeding but factual given government’s Marri be pending rate civil action before district for his classification as basis petition, to al-Marri’s response court. In opportunity a fair to rebut combatant and court entered an order direct- the district persuasive facts with “more evi those upon ing petition service of al-Marri’s purpose, For this the court indi dence.” Naval Commander of the Consolidated accept affidavits from cated that would a date his answer. Brig setting for government and al-Marri. The both the court that if al-Marri were to make stated answer, In asserted his the Commander gov showing persuasive” a “more than under al-Marri’s detention showing, it would then conduct a ernment’s proper, based on the AUMF was Presi- evidence. hearing full-blown take dent’s determination that al-Marri was an included combatant. The answer Although al-Marri had received re- Declaration, determination copy of the President’s Rapp he copy dacted order, as well as an affidavit from notice of objected that he had not received Jeffrey Rapp, N. the Director of the Joint factual for his detention because basis Combating Intelligence Task Force for from dis- attorneys prohibited were (the Declaration”), “Rapp cussing portions Terrorism with him the classified court specific Rapp offered the factual basis Declaration. The district which govern- with the expressed displeasure classification as an com- al-Marri’s copy of a redacted Rapp provision Portions of the Declaration ment’s batant. relationship with and activities on ri’s option of either government gave portions al-Qaeda has been obtained the unclassified behalf of relying al- allowing or of Rapp by multiple Declaration in- from and corroborated portions. to the classified Marri access telligence sources. declassified
response, through proceeded, Declaration then accepted Rapp Declaration most of highly specific offer the de- pages, rely on the that it could not the sanction *120 (1) it that: “Al- example, tails. For stated satisfy portions to its remaining classified Afghanistan at Bin Laden’s Marri trained burden. months training camps for 15-19 terrorist summary, Rapp the declassified In its 1998”; 1996 and approximately between Declaration stated: (2) although allegedly al-Marri entered al closely associated with [Al-Marri] pursue graduate degree United States to organi- Qaeda, an international terrorist Bradley University, computer science at States is zation with which the United rarely and was in “he had attended classes below, Al-Marri is at war. As detailed (3) status”; traveled to the failing al-Marri Qaeda agent sent to the “sleeper” an al Qaeda’s Emirates at al re- United Arab engag- purpose States for United August where he met with quest facilitating terrorist activities ing in and al-Hawsawi, Qaeda’s Ahmed al Mustafa 11, 2001. Al- subsequent September treasurer, airport at the and was Dubai currently possesses information Marri $10,000 to provided approximately with value, in- including high intelligence $13,000 and education in the for his travels personnel and activities formation about States, along with an additional United Qaeda. arriving Prior to of al $3,000 purchase laptop approximately 10, 2001, September United States on (4) computer al-Marri’s con- computer; personally Al-Marri met with Usama conducting that he was tained evidence (Bin Laden) volunteered Bin Laden and regarding the use of chemicals as research anything martyr for a mission or to do weapons (providing of mass destruction Qaeda Al-Marri requested. else that al very descriptions detailed of the evidence Qaeda assignment al was assisted (5) al-Marri’s computer); found on the by at least two to the United States computer contained records of e-mail also high-level Qaeda Septem- al members: to al- registered drafts sent from accounts Shaykh 2001 mastermind Khalid ber to an account that has been linked Marri (KSM); Qaeda al fin- Muhammed Muhammed, Shaykh a known al to Khalid money- September ancier and Qaeda terrorist and mastermind behind (Al- man Mustafa Ahmed Al-Hawsawi September (providing attacks Hawsawi). Qaeda Al Al-Marri sent (6) messages); al- language exact facilitate other al the United States to of lec- computer Marri’s contained files Qaeda operatives carrying post- out by tures bin Laden as well as lists Al September 2001 terror attacks. arena,” “Tali-ban,” websites titled “Jihad Qaeda explore also asked Al-Marri club,” “Tunes “Arab’s new club—Jihad computer hacking disrupt methods to bullets,” “martyrs,” along photo- sys- bank records and the U.S. financial of the attacks on the Trade graphs World addition, Al-Marri was trained tem. Center, photographs pris- of Arab various by Qaeda poisons al in the use of Kabul, oners of war held authorities concerning poi- had detailed information flying airplane an animated cartoon of an laptop on his sonous chemicals stored Center, map at the Trade and a computer. Information about Al-Mar- World (7) Afghanistan; calling cards attributed to to participate further in these proceed- al-Marri were utilized after ings.” judge the terrorist noted that “[although 11, 2001, attacks of September apparently to contact [al-Marri] has evidence he be- relevant, telephone the United Arab Emirates num- lieves he present refuses to before (providing very specific ber of al-Hawsawi this court.” The magistrate judge regarding dates and details concluded: where and (8) made); when the calls were al-Marri’s Accordingly, while recognizing the im- computer ease contained lists of credit portance of respecting the acts of the card numbers and the details of the rele- Executive Branch in times of national cardholders, vant his computer files emergency, and providing after peti- 1,000 contained over other apparent credit tioner a threshold opportunity reason- numbers, along card with lists of internet able under the circumstances to contest computer hacking, related to fake websites Executive Branch’s actions and fac- *121 driver’s licenses and other fake identifica- tual assertions in an incremental and cards, tion buying selling and credit card manner, deliberate it appears to the numbers, processing credit card trans- court that the Executive Declaration is actions; (9) purchases fraudulent were persuasive more than gener- Petitioner’s made on several of the credit card num- al denial on the issue of whether the possession, bers al-Marri’s at a fraudu- petitioner meets combatant lent online up by business set an individual criteria, and there is no basis for con- purporting to be named “Abdulkareem A. cluding that an deprivation erroneous Almuslam,” who had a signature in hand- has occurred. al-Marri’s,
writing similar to was identified Al-Marri objections filed magis- to the eye an doctor actually being al- judge’s report recommendation, trate Marri, and had fingerprints that matched and the district court considered al-Marri’s al-Marri’s. petition for writ of corpus habeas de novo. When al-Marri received this declassified opinion, In its the court stated: (in Rapp only Declaration which por- small Despite given being numerous oppor- redacted), tions remained again object- he tunities to come forward with evidence ed because he could not pas- see the few supporting general denial, Petition- sages that had been blacked out. With er has refused to do so. respect disclosed, to what was he “respect-
fully * * * to come decline[d]” forward with evi- dence. Because al-Marri elected not to Petitioner’s refusal to participate at this make a factual showing, the magistrate stage renders the Government’s asser- judge prepared report a and recommenda- tions uncontested. This leaves tion to the district court based on al-Mar- “nothing specific Court with ... to dis- ri’s refusal to take issue with the facts. pute simplest even the [by assertions the Government] which [Petitioner] magistrate judge’s report and easily” could refute they were inaccu- recommendation, he noted that al-Marri rate. had received most of Rapp Declara-
tion, passages a few blacked out Al-Marri Wright, ex rel. Berman v. classified, they (D.S.C.2006) because were F.Supp.2d stated (quot 784-85 (alterations al-Marri given “ha[d] been notice and ing magistrate judge’s report) opportunity, but responded with original). ha[d] and omission in The court con merely general a denial and an election not cluded: A partici- refusal Petitioner’s
Given evidentiary process initial pate in to our consid- relevant remains Hamdi on any evidence to offer failure and his light of Boumediene. even eration that he behalf, beyond question it is whether considered Boumediene While adequate an persuasive “more Act was present Treatment Detainee has failed Ham- corpus, § 2241 habeas classifi- Respondent’s to rebut substitute evidence” due process appropriate enemy di considered him as and detention cation proceeding. § habeas in a Further, the imba- 224-1 given combatant. (“[Hamdi Boumediene, ] at 2269 presented the evidence lance between at hand. None the matter not control does clearly the Government parties, by the had argued there in Hamdi parties of the which persuasion meets burden could the writ. Nor suspension been it at imposed reasonably be could process corpus § 2241 habeas they. Proceeding incremen- stage. this initial As place”). remained Hamdi directs, need the Court Hamdi tally, as “remain[s] corpus process § habeas Accordingly, un- today. no further go here. place” Hamdi’s, procedures of the outline der artic- of the plurality Court In Hamdi proceed- applicable which constitutional- ulated that that Petitioner finds ings, Court seeking to citizen ly to American owed sup- factual basis received notice *122 and detention challenge his classification af- and has been his detention porting There, Yaser enemy combatant. as an re- to meaningful opportunity a forded citizen, was Hamdi, a United States Esam a review As of evidence. but that allegations on government by the detained “erro- that an not indicate does evidence Tali- arms with up he had taken occurred, Ham- deprivation” neous Afghanistan. in during the conflict ban 2633, 534, this di Afghanistan in seized had been Hamdi should be dismissed. petition Alliance, a coali- of the Northern members to the Tali- opposed military groups tion order of From the district court’s at 785. Id. to the ban, eventually turned over and was appeal. this dismissal, al-Marri filed anas military and detained States United Hamdi, 542 enemy combatant. II Ham- Subsequently, 510, 124 2633. S.Ct. in court that the district I conclude a writ of petition for father filed a di’s procedure all the § al-Marri provided case 28 corpus under U.S.C. habeas dispos- court was 511,124 due. While the S.Ct. 2633. was Id. at 28 petition under corpus habeas ing of a con- petition habeas Although Hamdi’s 2241, on the kept it also its focus § U.S.C. cir- the factual regarding no details tained only described in procedure detention, Hamdi capture or of his cumstances to district then available guidance of the part that were documents other to corpus of habeas application court for Af- to Hamdi “went asserted that record can But it be enemy work,’ combatants. detained that he to do ‘relief ghanistan procedure than two readily country demonstrated less in that had been 2001, 11, satis- al-Marri provided September court before the district months 2241, military training.” § also have received but not fied Hamdi could Furthermore, explained father Hamdi’s Boumediene found Id. in which the Court Hamdi, who was of the case—that view be sufficient.
347
time,
traveling
liberty
at the
“was
in the absence of
years
process
old
sufficient
“
time,”
real,”
very
530,
...
‘[b]ecause
his own for
first
id. at
[was]
S.Ct.
experience,
trapped
lack
he was
plurality
of his
held that a citizen-de-
military campaign
Afghanistan once the
tainee seeking
challenge
his classifica-
511-12,
(1)
began.”’
Id. at
S.Ct. 2633 tion as an
combatant must
“re-
(alteration
original).
The sole evidence
ceive notice of the factual basis for his
(2)
classification”;
Hamdi
offered
given
“a fair oppor-
was contained in an affidavit from Michael
tunity to rebut
the Government’s factual
Mobbs,
(3)
Special
assertions”;
Advisor to the Under
have this
con-
(the
Secretary
Policy
of Defense for
decisionmaker,”
ducted
“before
neutral
Declaration”).
Id. at
“Mobbs
id. at
349
chemical
general
weapons
poisons,
denial and to decline further
and
as well
give
jihad
engagement
process.
concerning
martyrdom,
files
and
lec-
Laden,
of Osama bin
tures
and thousands
Hamdi,
plurality
stated that
of false credit card numbers and other
puts
“once the Government
forth credible
(4)
documents;
fraudulent
financial
meets
petitioner
evidence
the habeas
possessed
facts
he
and used tele-
(which
enemy-combatant
criteria”
cards,
numbers,
phone
telephone
credit
hearsay
aby
could be satisfied
affidavit
and e-mail accounts connected to known al
Declaration,
Rapp
such as the
see 542 U.S.
Qaeda operatives and leaders. Because
533-34, 538,
2633),
S.Ct.
burden
accuracy
of these facts would have
to the detainee “to rebut
that evi-
shifts
been known
al-Marri personally, he
persuasive
dence with more
evidence that
could have
an explanation
offered
for or
he
outside the criteria.”
Id. at
falls
each,
denial of
if
government’s
charac-
added).
Al-Mar-
(emphasis
S.Ct. 2633
explanations
terizations and
were untrue.
carry
ri
attempt
did not even
to
this bur-
Yet,
“respectfully
he chose to
decline” the
den.
district
respond
court’s “invitation” to
to or
plurality explained
The Hamdi
that this
contest them. His failure to
such
rebut
burden-shifting
impose
scheme did not
facts amounted to a total
failure meet
burden on the detainee but
large
rather
his burden under
the burden-shifting
designed
him to show that he
allow
result,
As a
scheme Hamdi.
there was
“tourist,
...
journalist,
is an innocent
or
nothing
court,
specific before the district
...
aid worker.” 542 U.S. at
nothing specific
and there remains
before
approach
S.Ct. 2633. The
of this scheme
court,
dispute
simplest
our
even the
[rebutting
challenging]
was “limited to
al-Marri,
despite
assertions
alleged
combatant’s acts.” Id. at
fact that
given
opportunity
he was
“a fair
Thus,
2633.
S.Ct.
narrow focus
to rebut
the Government’s assertions.”
required
present
al-Marri
“to
his own
533, 124
542 U.S. at
Hamdi
case to rebut
the Government’s
factual
(em-
Finally,
prong
the third
return.”
Id. at
was not as the sum, rarely assertions that he In given attended his al-Marri was notice of the status; facts, graduate courses in failing government’s allowing pre- and was for a (3) allegations laptop computer sumption the that his in its favor under he Hamdi regarding given opportunity respond contained research the use of was a fair to to only legal challenge a amounted to facts; lenge proceeding and his the asserted right President’s before and the the facts was the AUMF he could contest which Neverthe- This is all of him under AUMF. detain a neutral decisionmaker. Hamdi. to raise less, given opportunity him under that was due he was process and the court would have disputes, factual B it hearing, a factual them with resolved court, op- in this case al-Marri. The district district court so advised Although the § § had the full authori- erating under functioning under 28 U.S.C. was time to al-Marri and to at the same evidence from attempting ty to receive and was record, urged it al- process described supplement accommodate al- actually afforded process to the facts. respond Marri to Hamdi § 2241 with both readily comported Marri it had understood The court also the elements including thus and Hamdi that the detainment was authority to rule in Boumediene. as essential described that au- a matter of law. With illegal as The Boumediene Court allowed an entire memorandum thority, it devoted required by of that process some short issue, legal chal- denying al-Marri’s to the be sufficient. process § 2241 could argu- al-Marri’s Had it sustained lenge. (stating, “we do not hold at 2274 court, court, surely ments, a as habeas duplicate must adequate substitute § 2241 authority under to fashion had the It nonetheless respects”). § 2241 in all relief, release. In- including appropriate any process employed found essential deed, at an earlier power it exercised this (1) oppor- petitioner given government it sanctioned the stage when evidence and tunity exculpatory to submit in- excluding consideration of classified review; and the record on supplement short, process in In the court’s formation. (2) the court have authority to assess the with the es- fully compliant this case evidence, sufficiency government’s of the Boumediene. process described sential exculpatory evi- petitioner’s to receive the addition, comported the district court record, dence, to correct supplement §by 2241. fully process required with the process, and to errors the executive requires that al-Marri’s cus- Section relief, of the de- including release grant (a to file an answer todian be ordered tainee. 128 S.Ct. “return”), “certifying the true cause of readily fulfilled this case in this That order was issued detention.” Indeed, it requirements. minimum these answer, filed case and imposed all of those 28 U.S.C. satisfied of the deten- the “true cause providing §§ 2241-2243. tion.” 15-page a detailed given Al-Marri was hearing requires 2243 also Section under statement the facts—stated present, “[u]nless the detainee is which rely- government was oath—on which the writ and the return application for the all, most, if though Even ing. of law.” This too was present only issues personal al-Marri’s facts were within raised no issue of Since al-Marri satisfied. them dispute elected not to knowledge, he fact, hearings magistrate before the facts, giving other instead present only legal arguments. judge involved partici- denial and a refusal general that al-Marri be Likewise, requires he Section process. further in the pate *126 by affidavit or opportunity, anything further be afforded request did not oath, deny facts or to Thus, under to his chal- otherwise in the record. included dissent, however, opportunity This was AUMF. I from assert other facts. the deci- him, opted but al-Marri take sion vacate the district court’s dismissal given it. order and to remand advantage of this case to the dis- provide trict court to al-Marri with more § Finally, requires the court process my to contest his detention. In justice as law and “dispose of matter judgment, because al-Marri already has In require.” disposing This the court did. § received a process, habeas such a justice required, matter as of the law remand only duplicative order leads govern- accepted the district court process, unnecessarily protracting the con- ment’s facts as true —it had no others be- stitutionally fair and adequate process that concluded, fore it—and based on those already the district court provided al-Mar- facts, that as a matter of law al-Marri was ri. by legally detained the President under I Accordingly, would affirm the judg- the AUMF. ment of the district court. process
Al-Marri received the described Boumediene, and 28 U.S.C. DUNCAN, Judge, concurring Circuit §§ 2241-2243. That he elected not to con- part dissenting part: require develop- facts to their further test I agree majority my with the col- choice, was pro- not a denial of ment leagues today that, if the Government’s purely legal challenge cess. And on his he true, allegations about al-Marri are Con- hearing received a full with a reasoned gress empowered the President to de- disposition.
tain him as an combatant. How- ever, with Hamdi as a I am guidepost, III process unable conclude af- respect legal question With to the decid- forded al-Marri thus far was insufficient. ed the district court al-Marri was Indeed, government’s evidence, legally detained under the AUMF based Declaration, Rapp form of the far government presented, on the facts the I than that proffered more detailed agree opinions Judge with the of Chief Further, Hamdi. as noted Chief Williams, Wilkinson, Judge Judge Judge Judge Niemeyer, Williams and Traxler, that, which conclude based on the magistrate judge and the district court in Declaration, Rapp the President had the fact specific accommodated al-Marri’s power to detain al-Marri as an com- request-that Rapp Declaration be batant under the AUMF and that substantially him provide declassified to lawfully power President exercised that with better notice of the factual basis for join al-Marri. I detaining specifically Part Rapp his detention. the face of the Judge opinion, laying II of Traxler’s out specific comprehensive Declaration’s the reasons. (which, allegations Judge as Chief out, Niemeyer Judge point Williams and IV uniquely relate to matters within al-Mar- Accordingly, part knowledge), I concur in that it is unilateral ri’s al-Marri’s judgment affirming participate the district and absolute refusal to court’s Hamdi possessed suggested by conclusion President incremental that rea- legal authority under the AUMF to that warrants affirmance. For son, respect varying with due for the detain al-Marri as by my colleagues, I also presented and that he did so in accordance with the views *127 authored separate opinion concur Judge Williams. Chief TURNER, Jr.,
Hashmel C.
Plaintiff-Appellant,
v. OF the CITY OF
The CITY COUNCIL VIRGINIA;
FREDERICKSBURG, Tomzak, ca in his official
Thomas J. Mayor City
pacity of Freder Defendants-Appel
icksburg, Virginia,
lees.
American Civil Liberties Union Foundation,
Virginia Amicus
Supporting Appellees.
No. 06-1944. of Appeals,
United States Court
Fourth Circuit.
Argued: 2008. March July
Decided: