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Al-Marri v. Wright

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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June 12, 2007

As promised, I read the (80+ page) al-Marri decision last night. Let me give you the download.First, it’s important to note that the decision came on a petition of habeas corpus from Mr. al-Marri against the custodian of the Naval brig in South Carolina. This is one of the rare occasions where a court actually grants a “Tower of London”-type habeas petition (that is, one challenging the basis of the detention of a prisoner held without charges).The decision does a few interesting things. First, and most importantly, it roundly rejects the notion that the president may, on a whim, designate American resident civilians—who are not accused of aiding al-Qaeda or nation-state enemies on foreign battlefields—as “enemy combatants,” subject to indefinite detention without charges or trial.Second, it determines that, at the very least, were the Military Commissions Act to apply to al-Marri (on other grounds, it says it does not), it would require at least a twofold review process before he may be deemed either a “lawful” enemy combatant subject to detention under the laws of war, or an “unlawful” enemy combatant subject to “trial” for war crimes in front of a military commisions.Significantly, the court writes that under the proper construction of the act, the president may not make this decision alone (which would, by implication, mean that under the MCA the president can’t unilaterally designate detainees held abroad as enemy combatants ). The initial determination is made by the president or his battlefield delegates, and then the Combatant Status Review Tribunal conducts its highly limited review.Though this finding of the court is far from ideal in that it recognizes (though certainly does not validate) the CSRT process, it is remarkable in its parallels to the decisions of the two military commission presiding officers who dismissed all charges against Omar Khadr and Salim Hamdan.Specifically, it strictly construes the language of the Military Commissions Act, and even compares it to the temporary detention provision in the Patriot Act, to affirm that Congress never intended to give the president carte blanche to detain civilians in the United States as enemy combatants indefinitely. By implication, this holding clearly rejects the government’s claims of sweeping power under the MCA.Finally, third, it strongly finds that Mr. al-Marri through his residency and education in Peoria, Ill., has had sufficient ties to the United States to warrant full due process protections under the Fifth Amendment. Consequently, his indefinite military detention, the court found, was without legal basis, and it ordered his release from military custody.And, before you start hearing the fear-mongering spin from Tony Snow, the court clearly stated that Mr. al-Marri, far from being released, may be detained further if charged, held as a material witness or temporarily imprisoned under the Patriot Act. He simply may not be held without charge and without end by the military.Note that the decision kind of turns on the clear distinction between a resident of the United States who takes up arms in open hostilities against the United States (like a Yasser Esam Hamdi, who was captured on a Afghan battlefield with an AK-47) and one who simply engages in criminal terrorist activity.In the latter case, the president can no more order the military to detain such an individual without some civilian legal basis than he can the Unabomber, Timothy McVeigh, or, for that matter, Tony Soprano.And that’s the real rub, and the real value, of the decision. It is a stirring, unequivocal rebuke of the administration’s constant push to replace law enforcement activities with lawless military activities. It effectively says that, absent truly exigent circumstances, the military has no legal or moral authority to detain American civilians who are not engaged in active military conflict with the United States.It accords directly with the Civil War era decision, U.S. v. Milligan, which held that an Indiana man, sympathetic to the Confederacy but not an active combatant, could only be tried by civilian courts. As the court notes:

But in this nation, military control cannot subsume the constitutional rights of civilians. Rather, the Supreme Court has repeatedly catalogued our country’s “deeply rooted and ancient opposition…to the extension of military control over civilians.”

And, the decision ends with the following coda, effectively arguing that the government’s ultimate default argument—that the president has inherent constitutional power to lock people up forever at his (or her) own discretion—renders all our laws and civil rights moot at the altar of “national security.” That the court cannot abide (nor can the dude).

For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may exercise as they please.To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution—and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power—were a court to recognize it—that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

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