Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
al-Marri Reactions I -- The Hidden Alternative Holding (Surprise -- It's About Abusive Interrogation!)
The principal merits holding in the court of appeals' opinion today in al-Marri is that Congress has not authorized the indefinite military detention of a person who is (i) protected by the Due Process Clause (including, at a minimum, U.S. citizens and residents); and who is (ii) not under the direction of an enemy nation -- and that if Congress had authorized such a detention, it would raise profound Due Process questions under Milligan.
The court assumes, without deciding, that if a detainee is under Al Qaeda's direction but is not protected by the Due Process Clause (as the court assumes for sake of argument Hamdan, for instance, is not), or if the person is taking direction from, or fighting on behalf of, the Taliban, then Congress has authorized that person's detention, principally because such detentions would not raise the same Due Process problems that are raised here (and in the latter case, because the laws of war would authorize the detention, and Congress is presumed to have given the President such law-of-war authorities).
These distinctions are quite complicated and subtle, and will be subject to significant debate as the government proceeds with its appeal to the en banc court of appeals. I hope to have an opportunity to discuss them further, but I'm going out of town in a couple of days and have too much on my plate before then.
For now, I want to focus on another, much less prominent but equally important part of the opinion -- the second paragraph of footnote 16, on page 59.
As the Court held in Hamdi, and as both the majority and dissent stress in today's opinion, the traditional purpose of military detention -- and the presumed reason Congress has authorized it as to some persons -- is to incapacitate, or immobilize, the enemy -- "to prevent the captured individual from serving the enemy." Territo (quoted in the dissent at page 82).
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.
The timing here is suspicious. Recall that when al-Marri was originally detained on criminal charges, the Uniform Code of Military Justice prohibited the military from using any cruelty or maltreatment, not to mention assault and threats, against detainees. It was in March of 2003 that the Department of Justice told the Pentagon that the President could, as Commander-in-Chief, disregard those statutory constraints (as well as those imposed by the Torture Act and the Convention Against Torture). Therefore it is not surprising that for the first sixteen months of al-Marri's military confinement, starting in June 2003 (i.e., just after the DOJ Commander-in-Chief advice), the Government did not permit him any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.
And if that -- abusive interrogation -- was the reason for the military detention, then Congress did not authorize it, even if al-Marri could have been militarily detained for incapacitation purposes in the first instance. As the court explains:
The Government’s treatment of others [in the criminal justice system] renders its decision to halt al-Marri’s criminal prosecution -- on the eve of a pre-trial hearing on a suppression motion -- puzzling at best. Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that "indefinite detention for the purpose of interrogation is not authorized." 542 U.S. at 521. We note, however, that not only has the Government offered no other explanation for abandoning al-Marri’s prosecution, it has even propounded an affidavit in support of al-Marri’s continued military detention stating that he "possesses information of high intelligence value." See Rapp Declaration. Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an "enemy combatant" only after he became a "hard case" by "reject[ing] numerous offers to improve his lot by . . . providing information." John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006).
This paragraph explains, I think, why it is very unlikely that the government will prevail on appeal in this case--because not only wasn't there any authorized reason for the transfer of al-Marri from criminal to military detention, but, more importantly, because it is manifest that the actual reason for transfer was fundamentally illegitimate, unauthorized by Congress, and already proscribed by the Supreme Court. Posted
by Marty Lederman [link]
Have you seen Orin Kerr's prediction on the Supreme Court reversing??? I think he's way off (though it is clear he is not expressing his personal view of the merits either way).
If Kerr were right, the government would not have ditched Padilla the way it did in the Supreme Court, by intentionally mooting the case. In fact, I wouldn't be surprised if the Government pulls the same thing here if the en banc 4th reverses this.
Here's my reasoning: Four vote exist to affirm rejecting the view that the AUMF authorizes this -- Stevens, Scalia, Souter, and Ginsburg. See Hamdi.
All you need is one more, and I am sure that Breyer would provide it here.
As to the other four -- Thomas sticks to his wacky view in Hamdi that the President can do whatever the hell he wants.
Roberts, Alito and Kennedy probably vote to reverse adopting the plurality's reasoning in Hamdi. Though I wouldn't be shocked to see Kennedy flip with Breyer either.
SCOTUS might buy that theory the "alternative holding", but I'm not sure that the en banc 4th would. The en banc 4ths worldview, I think it is fair to guess, is well to the right of SCOTUS and would find it easy to conveniently ignore the improper purpose evidence of the Rapp Declaration and the timing involved.
Also, Scalia appears to make a big distinction between aliens and citizens that other Justices do not, so it may not be clear sailing for Al-Marri with Scalia. Scalia's argument, IIRC, was that in the case of a U.S. citizen a trial by jury for treason was appropriate, but a non-citizen isn't subject to the same special constitutional treatment of the crime of treason, as he isn't betraying his own country.
Well, I think Scalia might find that the MCA reaches the conduct in this case - remember, he's not a fan of legislative history. So I think he switches. But I think Breyer and Kennedy, on a clear reading of the Hamdi plurality, both vote to affirm the Fourth Amendment (I think Orin is just way off on this point).
I disagree with Marty's point that this is about interrogation. Certainly, from a practical standpoint, this EFFECTS interrogation, but the motives behind the government's decision are something that I don't think a court can reach, either theoretically or practically. So yes, abusive interrogation caused the judicial conflict, but I don't think it resolved the answer. As Orin Kerr's (otherwise misguided point) on VC illustrates, I don't think you can get different answers if they had to release him for lack of evidence (and from the facts, since he appears not to be actually guilty, I assume that WILL be his ultimate fate - though he'll be "released" to Albania, instead.