Let's assume for the sake of argument that the majority in today's opinion was wrong on its main point -- i.e., let's assume arguendo that al-Marri is, like Hamdi, within the class of persons for whom Congress has authorized military detention.

Even so, his military detention here would be of very dubious legality.

Why is that?

Because he was already immobilized. al-Marri had been arrested on criminal charges in February 2002. He was held in custody by the U.S. for 16 full months before the President ordered him transferred to military detention in June 2003. And that transfer occurred, not coincidently, as soon as the trial court set a hearing on a motion al-Marri had made to suppress some evidence in his trial.

Thus, the predicate for any authorization to militarily detain al-Marri simply was not present -- he was already incapacitated and could no longer serve the enemy.

So why was he transferred? As the court suggests in note 16, he was transferred in order to subject him to coercive, possibly abusive, interrogation.

To start, al Marri was most definitely not being detained for the duration of the conflict with al Qaeda. He was simply being held for civilian trial. As you pointed out yourself, the transfer to military custody occurred as the detention for civilian trial was being threatened by a motion to suppress evidence.

Furthermore, the argument that the military assumed detention of al Marri as a POW (generic) solely for the purpose of interrogation is nonsense. This argument assumes that there was no evidence that al Marrri is an enemy combatant when he was transferred to military custody and he was only being detained to question about what he knew about others in al Qaeda. As the description of evidence in the indictment showed, there was more than enough reason to believe that al Marri was an enemy combatant subject to wartime detention.

It is perfectly permissible and more than desirable to question an enemy combatant under detention. The Hamdi opinion most certainly does not hold this to be improper. The fact that al Marri admits that he was hiding behind constitutional due process rights in the civilian criminal justice system to avoid such interrogation simply shows the absolute madness of the radical proposition of extending constitutional rights to foreign enemy combatants and treating them as civilian criminal suspects.
 

Ali al-Marri was an al Qaeda soldier who entered the US as a military spy and would be saboteur. He arrived the day before 9/11 at a time when al Qaeda had declared war on the US but the US did not regard itself as being at war. He stayed after Congress passed the AUMF and thus became an unlawful enemy combatant. While soldiers on the battlefield arguably have combatant immunity, spies when captured are do not have immunity, are not protected as POWs, and are subject to both military detention and criminal prosecution at the choice of the detaining power.

In the US, al-Marri engaged in minor bank fraud over the Internet and gathered the materials to create phony credit cards. He was originally detained for a national security investigation, but after finding the credit card numbers and equipment, he was held on criminal charges. The evidence against him was overwhelming, but there are serious questions of law when warrants originally obtained for foreign intelligence accidentally uncover evidence of a routine crime. This is a very important question (though more with regard to FISA) that has not yet been fully developed by the courts. It would have been quite interesting had the government allowed the suppression hearing to continue. At the same time, the possibility that technicalities between different types of warrants might let an enemy saboteur go free demonstrates the incompetence of the criminal justice system to deal with serious threats from wartime enemies.

After his commanding officer Kahlid Sheikh Mohammed (KSM) was captured in Pakistan on March 1, 2003, the US transferred al-Marri to military custody. Presumably the documents and computers captured with KSM provided solid evidence that al-Marri was a military agent and spy, as well as a low level hacker. In wartime, the authority of the military to hold captured enemy soldiers is superior to the authority of the civilian criminal courts over such people. Al-Marri was transferred to a superior jurisdiction just as a criminal being held by state authorities can be preempted by Federal criminal jurisdiction.

The reason why authorities exercised their superior jurisdiction is not a matter for review. They may have acted because the criminal court system is incompetent to deal with these matters. They plausibly could believe there was a better chance to get actionable intelligence if they transferred him from an overcrowded civilian prison system to solitary confinement in a military prison where there are 20 guards and interrogators for every prisoner and where they can control every aspect of the environment. However, even if they did it to really piss off Marty Lederman, they do not have to answer anywhere for their decision to exercise a superior jurisdiction.

Enemy combatants are detained "to prevent the captured individual from serving the enemy." Criminals are detained and imprisoned for punishment and correction. When a criminal is detained by State authorities, there is no reason to believe that he will not be subject to punishment and correction. That has never stopped Federal authorities from exercising their superior jurisdiction over someone guilty of both Federal and State offenses. Asserting as here that the exercise of superior jurisdiction is "of very dubious legality" because the inferior jurisdiction could have accomplished the same objective is plain flat nonsense. It happens all the time.

Al-Marri's military custody has been videotaped 24x7. Unlike Padilla, there is no evidence of a single missing DVD. There is no evidence that he has been subjected to any coercion other than prolonged solitary confinement. Although prolonged solitary confinement may be prohibited as punishment for criminal convictions, it is not prohibited treatment in international law for enemy combatants (and remember that a spy is not entitled to protection under the Third Geneva Convention nor as a common law POW).

While it is true that someone cannot be detained solely for the purpose of interrogation, that is also true of the criminal justice system. You can take someone in for questioning, but in the long run you have to charge them or let them go free. Al-Marri was identified as an enemy combatant, and a Federal District court followed the Hamdi guidelines and determined that he in fact was an enemy combatant. After transfer to military custody, he was questioned. Again, throughout the country the police bring a low level suspect in on one charge intending to make a deal where he will give evidence against someone more important in exchange for dropping the charge. As long as the original charge was valid, the fact that the primary purpose is to gather evidence against someone else does not provide legal basis for challenging the process. It is a proper use of prosecutorial discretion.

The post also contains many references to "the court of appeals' opinion today" although once the Fourth Circuit decided to reheard the case that automatically vacated the decision of the three judge panel. It is just sloppy to refer to and quote from a vacated opinion without making it clear that now it has no force and just states the personal opinion of two out of three judges.

Then there is the larger issue of even suggesting that an important case like this should be decided based on an issue that was not raised, for which no evidence was presented, and for which no argument was made. A case may be badly argued, and a judge may decide it based on a matter of law that was missed by both sides. However, any claim about interrogation is a question of fact. There is evidence (hundreds of DVDs) that could be viewed if a claim of coercive interrogation is properly raised. Until then, it would be unprofessional for any judge to substitute his own personal bias and unsubstantiated allegations for the real issues that have been presented to the court.
 

-- The post also contains many references to "the court of appeals' opinion today" --

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Today's post includes a copy of June 11, 2007 post, and it is the June 11 post that recites "the court of appeals' opinion today ..."

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Understood it's a "slippery slope" argument, but the ability to accuse and detain indefinitely, without charge, is "awesome." No issues of suppression of evidence, no issues of 4th amendment. Accuse of terrorism, and viola, in the military brig for life.
 

"the ability to accuse and detain indefinitely, without charge"

John Hinkley shot a president and several bystanders. He was found not guilty by reason of insanity and committed to a mental institution.

Try it again: John Hinkley was found not guilty by a jury of his peers. Despite being found innocent, he has been locked up by the government for the rest of his life.

Now the second version doesn't say anything that isn't true, but it carefully avoids all the facts that explain the case. Hinkley reminds us that people are often detained indefinitely without charge, because they are committed instead of convicted.

Holding someone as an enemy combatant is legally a lot like committing someone to a mental hospital. There is no criminal charge and no trial where the defendant can remain silent and the prosecution has to prove a crime beyond a reasonable doubt.

But nobody claims that Hinkley has been treated unjustly because everyone at the time saw him shoot the President on TV. That is not a "charge". He is not "guilty". There is overwhelming evidence and an appropriate judicial proceeding.

No POW in previous wars asked for Habeas, but in Hamdi the Supreme Court outlined a proceeding that might be used by a District Court entertaining a Habeas petition from a current detainee challenging his classification as an enemy combatant. Al-Marri was given such a proceeding by Judge Floyd. He could have challenged the government's evidence or called his own witnesses. He refused to participate, and the US District Court issued a default judgement that he was an enemy combatant.

Now other cases have been about detainees who have been designated as enemy combatants by either the President or a CSRT. In this one case, however, al-Marri is now the only detainee designated as an enemy combatant by a US District Court after a fact finding hearing. The original Presidential finding has been superseded by the court finding. Unless you want to argue that the Supreme Court in Hamdi got it wrong, that is about as much process as you should expect to get.
 

-- Holding someone as an enemy combatant is legally a lot like committing someone to a mental hospital. --

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Oh? That's novel.

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Hinkley asserted insanity as an affirmative defense, BTW. And by making mockery of the meaning of "insanity," managed to provoke a serious renovation of the legal application of the insanity defense.

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Even the Quirin defendants got charged and tried. Executed too, since the military found them guilty. So, what's the excuse for holding up the starting of a similar process for this clown?
 

If I understand your position, it is that a finding of "designated as enemy combatant" is sufficient to justify lifelong detention.

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The only quibble left then is the due process necessary to support that finding.
 

It is interesting that the government's brief in support of en banc review did not once address the only part of the panel's opinion which had merit - the requirement of the Patriot Act that "alien terrorists" be tried as civilian criminal defendants or deported.

The al Marri response brief noted the government's omission, but misled the court my claiming that the Patriot Act required that al Marri be tried as a civilian criminal defendant and completely omitting the option to deport him.

Equally interesting, the en banc circuit court did not question the parties about the Patriot Act, at least that the linked NYT article reported.

If the en banc circuit court ignores the Patriot Act requirements as is the government, I do not see how al Marri wins before this most conservative of circuits.
 

Law.coms is reporting that "several of the judges" appeared sympathetic to the Government argument that the AUMF granted the President the power to detain al Qaeda members.

Once again, no reference to the Patriot Act, which followed the AUMF and is presumably the most current law.
 

Adam Liptak's writeup for the NYT leaves no doubt about Judge Wilkinson's unfitness for the Supreme Court:

He added, in extended remarks, that civil liberties groups had stirred up needless anxiety about the president’s detention powers. “We’re not talking about an indiscriminate roundup,” he said. “We’re talking about two people” — Mr. Marri and Mr. Padilla — “in six years with undisputed ties to Al Qaeda.”

So the law is the law, unless you're just breaking it with regard for a couple of people. And, presumably, as long as neither of those people is Harvie Wilkinson.

Shame.
 

Anderson:

Wilkinson was addressing the hyperbole by al Marri's attorneys painting this false picture of the President detaining people without cause for laughs and giggles.

In the only two cases of the military detaining enemy combatants captured in the US, there was more than ample evidence that they were enemy combatants.

This is in stark contrast to the US rounding up thousands of Japanese Americans during WWII without any evidence that they were enemy combatants or spies.

The shame is that the courts are even reconsidering the centuries old basic law of detaining enemy combatants for the duration of a war.

The Government brief makes a very valid point that al Marri is similarly situated to the 9/11 cell members. Under the holding of the panel majority, the 9/11 enemy combatants should be treated a civilian criminal defendants with a presumptive right to silence if captured.

Consequently, under this holding, if we had captured one of the Atta cell a week before the 9/11 attacks, the terrorist would have to be released if we did not have probable cause of a crime and had a right to silence if there was probable cause, allowing the rest of the Atta cell to attack and murder thousands.

This approach is suicidally insane. Shame indeed.
 

"Bart" DePalma:

It is perfectly permissible and more than desirable to question an enemy combatant under detention.

False (unless they were discussing strategy over coffee). See, e.g., GC3, Art. 17.

But as "Bart" well knows (and vcciferously defends), that wasn't the circumstances.

Cheers,
 

Arne:

1) Nothing in GC3, Art 17 bars interrogation of enemy combatants which meet the GC definition of POWs. The Army Field Manual is all about how to interrogate prisoners of war.

2) al Marri does not meet the GC definition of a POW.
 

"Bart":

["Bart"]: It is perfectly permissible and more than desirable to question an enemy combatant under detention.

[Arne]: False (unless they were discussing strategy over coffee). See, e.g., GC3, Art. 17.

[Arne]: But as "Bart" well knows (and vociferously defends), that wasn't the circumstances.

But I repeat myself....

"Bart" soldiers on:

2) al Marri does not meet the GC definition of a POW.

We were talking "enemy combatant" ... more specifically "enemy combatant" who is captured (otherwise the conversation would be like the French in Monty Python's "Holy Grail"). Which is to say, a "prisoner of war".

If you'd meant "al-Marri", you should have said so (although I'm of the opinion that the same pertains to him because I don't believe in the maladministration-manufactured legal "loophole" of people outside of GC3 and GC4 to whom no rules whatsoever apply).

Cheers,
 

Al-Marri is a spy. This makes him an unlawful belligerent or unlawful combatant using the language of the Supreme Court in ex parte Quirin (not any administration language). Spies are not covered by GC III (they are not POWs) but they are covered by some articles of GC IV. So saying that al-Marri isn't covered by restrictions on POW interrogation is correct, since those restrictions are only in GC III and not in GC IV.

However, GC IV only applies to enemy nationals. Al-Marri is a Qatari national, and as the citizen of a neutral or allied country he is protected (or not) by normal diplomatic relations between Qatar and the US. The Geneva Conventions were only intended to protect the citizens and soldiers of nations at war with each other.

Although international law may not provide much protection, he is now in military custody, so his detention is governed by the UCMJ. This US domestic law probably provides more protection than he would get from international sources [ignoring for the purposes of making the legal point about what is supposed to happen the real controversy about whether current administration interpretations undermine the UCMJ protections].

In Europe it is common to misread the conventions to say that "everybody is either protected by GC III or GC IV". If you read the text more carefully, the correct statement is that "enemy nationals are either protected by GC III or GC IV, and in addition citizens of other countries who are enlisted soldiers or officers in an enemy army are also covered by GC III." This more accurate reading is important because al Qaeda members in custody are almost never citizens of Afghanistan.