Two partners at Baker Hostetler in DC critique the Al-Marri decision
, which I wrote about at some length here
It's an interesting op-ed, one with which I disagree strongly, but there are a few key issues in the piece that need to be cleared up. First, note the classic one liner at the end of the article: "The Constitution is not a suicide pact." Yes, absolutely true, but we can also protect our security and interdict terrorism within the bounds of that document. I love when folks pull that out. It's such misdirection. In any event, here're a couple of choice paragraphs:
To distinguish A l-Marri from its earlier decision involving alleged al-Qaeda operative Jose Padilla, who was an enemy combatant, the court asserted that Padilla fought alongside the Taliban -- and characterized the Taliban as the "de facto" government of Afghanistan. This is a type of diplomatic recognition that the United States (and the international community generally) denied to that barbaric militia. The Constitution, of course, gives the president the right to grant or withhold such recognition. More important, under the 4th Circuit's rationale, the United States is not now engaged in a legally cognizable armed conflict with al-Qaeda -- with its Taliban patrons on the run, al-Qaeda has no governmental affiliation, except the self-styled "Islamic State of Iraq."
The implications are profound. Application of the laws of war governs the detention of enemy combatants but also creates the legal justification for the initial use of armed force. Only if the laws of war apply can the United States lawfully take the offensive against al-Qaeda, seeking out and attacking with deadly force its operatives in Afghanistan, Iraq and elsewhere. Congress's post-Sept. 11 authorization for the use of military force properly invoked this legal regime. Moreover, if the laws of war do not apply to conflicts involving non-state actors, there is no legal regime governing conflicts between groups in areas -- such as Gaza -- where there is no recognized state authority. This is true impunity.
By substituting its will for that of Congress and the president, the court's decision would strip the initiative from U.S. forces and transform the war on terror into a reactive policing function -- exactly the posture America was in on the morning of Sept. 11, 2001. As Justice Robert Jackson wrote long ago, for all its obvious virtues the Constitution is not a suicide pact. The court should quickly overturn this decision so that Jackson's words will continue to be true.
Let's be very clear about something. The Al-Marri decision basically stands for one thing: the president does not have the authority to detain American resident civilians
indefinitely without charges as enemy combatants. That's really it. It granted Al-Marri's habeas petition, specifically noting that the government may continue to detain the fellow (under a criminal charge, as a material witness or during deportation hearings), but the guy gets his day in court.
Mr. Rivkin and Mr. Casey do not mention that anywhere in the op-ed; rather they suggest that war criminals now enjoy "impunity" because of the decision. With all respect, that's hogwash. The Al-Marri court (the Fourth Circuit, which is notoriously government-friendly) just granted a habeas petition because the president, on his sole authority, had locked up an individual without charges, trial or any process, due or otherwise, whatsoever. The Al-Marri decision does nothing to undermine the laws of war, which still allow combatant nations to prosecute war crimes.