November 13, 2014

Federal Bar Council News / Written by: Bennette Deacy Kramer

Prior issues discussed Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Rumsfeld v. Padilla, 542 U.S. 426 (2004), both addressing the due process to be afforded to American citizens detained by the U.S. military as enemy combatants.

In a decision issued on June 11, 2007, in Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007), the Fourth Circuit considered the rights under the Constitution of an alien lawfully residing in the United States, who has been held by the military as an "enemy combatant" for four years. The court held that al-Marri was not an enemy combatant and had all protections afforded by the Constitution.

This startling but logical decision merits close analysis following the same court's decision in Padilla v. Henft, 432 F.3d 582 (4th Cir. 2005), in December 2005. In Padilla, the Fourth Circuit denied the government's request for an order transferring Padilla to civilian authority, believing the request an effort to avoid Supreme Court review of the Fourth Circuit's decision in Padilla v. Henft, 423 F.3d 386 (4th Cir. 2005). In Al-Marri, the court granted al-Marri's habeas petition, finding his indefinite detention unconstitutional.

Al-Marri, a citizen of Qatar, lawfully entered the United States with his wife and family on Sept. 10, 2001, to pursue a master's degree at Bradley University in Peoria, Ill. In December 2001, FBI agents arrested al-Marri at his home as a material witness in the September 11 attacks. He was imprisoned in Peoria and New York City.

In February 2002, in the Southern District of New York, the government charged al-Marri with the possession of counterfeit credit-card numbers with the intent to defraud, and in a second indictment in January 2003, with making a false statement to the FBI, making a false statement on a bank application and using another person's identification.

The New York charges were dismissed in May 2003 for lack of venue and the government reindicted al-Marri in the Central District of Illinois. The court set a July 21, 2003, trial date.

On June 23, prior to a suppression hearing, the government moved ex parte to dismiss the indictment based on an order signed by the President: (1) designating al-Marri as an enemy combatant, (2) closely associated with al-Qaeda, (3) engaged in hostile and war-like conduct, (4) possessing intelligence that would aid U.S. efforts to prevent attacks by al-Qaeda and (5) representing "a continuing, present, and grave danger to the national security of the United States."

The order directed the Attorney General to surrender al-Marri to the Secretary of Defense, and al-Marri was transferred to military custody and taken to the Consolidated Brig in South Carolina. Since then, the military has held al-Marri as an enemy combatant without charge or any indication of when his confinement will end.

For the first 16 months of his confinement the government did not allow al-Marri any contact with the outside world, and he claims he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.

In July 2004, al-Marri's counsel filed a petition for habeas corpus on his behalf in the District of South Carolina, which that court dismissed in August 2006. The government's submission claimed that al-Marri: (1) was closely associated with al-Qaeda; (2) trained at an al-Qaeda training camp in Afghanistan between 1996 and 1998; (3) was introduced to Osama Bin Laden in the summer of 2001; (4) volunteered for a "martyr mission"; (5) was ordered to enter the United States before September 11, 2001, to serve as a "sleeper agent"; (6) met with and received money from terrorist financier Mustafa Ahmed Al-Hawsawi; (7) gathered information about poisonous chemicals on his laptop; (8) made efforts to obtain false identification, credit cards and banking information, including stolen credit card numbers; (9) communicated with known terrorists by phone and email; and (10) saved information about jihad, the September 11 attacks, and Bin Laden on his laptop.

The court noted that the government's declaration did not assert that al-Marri: (1) was a citizen or in the armed forces of any nation at war with the United States, (2) was seized on a battlefield where the United States or its allies were engaged in combat, (3) was in Afghanistan during the armed conflict between the United States and the Taliban or (4) directly participated in any hostilities against the United States or any of its allies. Al-Marri denied that he was an enemy combatant, but his petition was dismissed.

The Fourth Circuit reversed. First, it considered the government's assertion that the Military Commissions Act (MCA) divested the court of jurisdiction. The court concluded that the MCA did not apply to al-Marri, because: (1) he was not captured outside the United States, (2) he was not being held at Guantanamo Bay or any where else outside the United States, (3) he was not afforded a Combatant Status Review Tribunal, (4) he was never determined by the United States to have been properly detained as an enemy combatant and (5) he was not awaiting such a determination.

Accordingly, the court concluded, the MCA "does not apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States."

The court next considered the merits of al-Marri's designation as an enemy combatant and subsequent unlimited detention. The Fifth Amendment right to habeas corpus, along with freedom from imprisonment, extends to lawfully admitted aliens living in the United States. The general rule, the court noted, is that "the government may not detain a person prior to a judgment of guilt in a criminal trial," unless the individual held qualifies for an exception.

The government argued that the Authorization for Use of Military Force (AUMF) applied to al-Marri just as it applied to Hamdi and Padilla. However, the court concluded that the holding of the Supreme Court in Hamdi and the Fourth Circuit in Padilla demonstrated the opposite.

These two holdings look to law-of-war principles to determine who fits within the enemy combatant category and rest enemy combatant statutes on "affiliation with the military arm of an enemy nation." Hamdi was an enemy combatant because he was seized on the battlefield in Afghanistan and Padilla, although he was seized in the United States, had fought in Afghanistan on behalf of the Taliban.

In contrast, al-Marri was not alleged to have been part of a Taliban unit, to have stood alongside the Taliban or the armed forces of any other enemy nation, to have been on the battlefield during the war in Afghanistan, to have even been in Afghanistan during the armed conflict with the United States there or to have engaged in combat with the United States forces anywhere in the world.

Accordingly, the Fourth Circuit concluded that neither the Hamdi nor the Padilla court recognized the President's authority to detain enemy combatants beyond the narrow circumstances of those cases – and certainly not in this case where al-Marri had no connection with combat with the United States.

The Fourth Circuit also rejected the government position that persons lawfully in the United States, and entitled to the protections of the constitution, lose their civilian status if they allegedly engage in criminal conduct on behalf of an organization seeking to harm the United States. Such a civilian is protected by the Due Process Clause and subject to charge, trial and punishment in a civilian court, not seizure and confinement by military authorities.

Nor does the Patriot Act authorize the President to arrest and detain "terrorist aliens" living in the United States and believed to have come to perpetrate acts of terrorism as the government contended. The Patriot Act allows detention with restrictions for a limited time pending deportation or trial pursuant to civilian law enforcement processes.

The court also rejected the government's argument that the President can detain "terrorist aliens" under his inherent Constitutional authority. Since Congress had spoken in the Patriot Act which explicitly prohibits indefinite detention of "terrorist aliens," the President's authority to act was at its lowest ebb. As the court described it:

The Patriot Act establishes a specific method for the government to detain aliens affiliated with terrorist organizations, who the government believes have come to the United States to endanger our national security, conduct espionage and sabotage, use force and violence to overthrow the government, engage in terrorist activity, or even who are believed likely to engage in any terrorist activity.

The Fourth Circuit stated that this describes the government allegations against al-Marri. Thus, the powers claimed by the President far exceeded those granted him in the Constitution.

As the Fourth Circuit concluded: "the Constitution does not allow the president to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants.'"

The court expressed deep concern over the extension of military control over civilians, which has been a concern throughout the history of this country. Thus, to afford the President the powers he sought would have disastrous consequences for the Constitution and provide him with extraordinary power that would "render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth amendments," undermining all the freedoms guaranteed by the Constitution.

The Fourth Circuit remanded the case with instructions to the district court to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a reasonable period. The government could then transfer al-Marri to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings or detain him under the Patriot Act for a limited amount of time.

In a dissent, District Judge Henry E. Hudson of the Eastern District of Virginia considered that al-Marri had been properly designated as an enemy combatant pursuant to the President's war powers under Articles I and II of the Constitution.

Judge Hudson also opined that al-Marri had received all the process due to him under the Supreme Court's decision in Hamdi and the Fourth Circuit's Padilla decision. Even though al-Marri was not personally engaged in armed conflict with U.S. forces, in Judge Hudson's opinion, he was a stealth warrior used by al-Qaeda to commit terrorist acts against the United States.

Bennette Deacy Kramer is a partner at Schlam Stone & Dolan.

[This article is reprinted with permission from the September/October/November 2007 issue of the Federal Bar Council News. Copyright © 2007 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]