Al-Marri, Redux

My recent outburst was occasioned by the Fourth Circuit Court reaching a decision in Al-Marri v. Pucciarelli about the continued detention of the apparent al-Qaeda operative Ali Saleh Kahlah al-Marri on July 15. Coming on the heels of the Boumediene opinion, al-Marri seemed like one primary document too many.

To recap, al-Marri was a citizen of Qatar who entered the United States by a lawful student visa on September 10, 2001. On December 12, he was arrested as a material witness in the 9-11 attack. The government originally charged him with credit card fraud, but later dropped the charges, declared him an enemy combatant, and transferred him to military custody. The district court upheld such detention. The nine-member Fourth Circuit Court of Appeals (the most executive-friendly in the country) entered a complex and fractured decision on July 15, 2008.

So fragmented was the decision that there was no majority opinion. Four of the judges held that al-Marri could be militarily detained and had received sufficient due process. Four held that al-Marri was entitled to a criminal trial and could only be held by the criminal justice system. Justice Traxler split the difference, holding that al-Marri could be held in military custody, but was entitled to a more extensive process than he had received. Because the practical upshot of the decision was to return the case to district court for further procedings, the opinion of the judges calling for a criminal trial and the opinion of Traxler are listed as separate concurring opinions and the opinions of the four judges who believed no further procedure was needed was listed as the dissent.

The total opinion goes for 216 pages, but both the concurrence and the dissent soon become redundant as each takes a fairly simple but dubious point and hammers on it, again and again. Both opinions are based mostly on the Authorization to Use Military Force (AUFM) and the Supreme Court opinion of Hamdi v. Rumsfeld interpreting the AUFM. Neither one takes seriously the claim that the President has inherent authority to militarily detain enemy combatants without an authorizing statute.

First the "concurrence," written by Justice Diana Gribbon Motz. Motz' basic point is simple. Al-Marri, as a "civilian" and a legal US resident. As such, he has the right to be criminally tried before he can be imprisoned (as a civilian criminal). She acknowledges a few instances in which people may be confined without a criminal trial. In all cases, such detention must be authorized by statute. Judges may deny bail pending trial. Dangerous, mentally ill people may be civilly committed. Illegal immigrants may be detained pending deportation. Soldiers may be court martialed. And in time of war, enemy aliens may be detained. However, Motz holds, al-Marri is not an "enemy alien." He is a citizen of Qatar, a friendly country, present in the US on a lawful visa. As such, he is entitled to a criminal trial. (This point is hammered again and again for 64 pages).

Looking at other cases authorizing military detention, Motz finds that none apply to al-Marri. Hamdi permitted military detention of a US citizen captured in a war zone in Afghanistan. The Jose Padilla case, also in the Fourth Circuit, permitted military detention of a US citizen arrested in the US. It is a dubious precedent because President Bush transferred Padilla to criminal custody rather than allow the case to be heard by the Supreme Court, where he expected to lose. Nonetheless, Motz distinguished saying that Padilla actually fought in the war zone in Afghanistan, which al-Marri did not. The WWII case of Ex Parte Quirin permitted the military trial and execution of German spies who were members of the German armed forces, and who arrived in the US by submarine and then buried their uniforms. The Civil War case of Ex Parte Milligan required a criminal trial of a Union citizen who aided the Confederacy by did not fight in actual combat. Thus, says Motz, none of these cases apply to al-Marri, who is a civilian and did not take part in combat.

This opinion is subject to obvious criticism. Its definitions of "civilian" and "enemy alien" make outdated assumptions that war is a contest between nation states and that nationality defines enemy status. But our war is with Al-Qaeda, a trans-national organization, and the government introduced strong evidence that al-Marri was a member. Justice Wilkerson's dissent plausibly attacks this theory. But his argument in favor of military detention requires even more strained logic, which he hammers on for nearly 80 pages.

Wilkerson ably argues that the nation-state model of war is no longer current, especially in our current war with a trans-national organization. He would set a three-part test (judges love three-part tests) for who can be militarily detained. A detainee must be (1) a member (mere sympathizers do not count) (2) of an organization that Congress had declared war on or authorized military force against (this would limit military detention to Al-Qaeda and exclude other terrorist groups), (3) who "knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization." Wilkerson argues that plotting terrorists attacks, even without participating in any, meets the third criterion.

The basic argument that we are at war with Al-Qaeda and therefore may militarily detain its members anywhere in the world regardless of circumstances sounds reasonable and convincing -- until one actually considers the laws and cases Wilkerson uses to support his position. Wilkerson bases his case almost entirely on the AUFM. He repeatedly accuses his colleagues of ignoring the "plain meaning" of the AUFM and undemocratically interfering with the will of the elective branches of government. But the language of the AUFM is anything but clear:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

To Wilkerson, "all necessary and appropriate force" gives the President a blanket exemption from all laws so far as Al-Qaeda is concerned. Nor do any laws restraining the President apply, event within the United States. "[T]he preamble of the AUMF specifically directs the President
'to protect United States citizens both at home and abroad.'"

In arguing that the AUFM specifically authorizes military detention of Al-Qaeda members, Wilkerson relies heavily on Hamdi. But there is a problem with this approach. Hamdi addressed specifically an armed man captured in Afghanistan, where there was active combat. Many of Hamdi's concerns address specifically the problem of giving adequate process in the middle of a war zone. Nothing in Hamdi says that the same rule would apply to a person arrested outside a war zone. To this Wilkerson replies that neither did that decision say it did not apply outside active combat zones.

Wilkerson is dismissive of any other laws that might apply in this case. The government may, indeed, be at a disadvantage in trying al-Marri because much of the evidence against him may be classified. One concurring justice proposed using the Classified Information Procedures Act (CIPA) to decide what may be admitted. To this Wilkerson replies that Congress knew about CIPA when it passed the AUFM, yet it chose to authorize military detention anyhow. When members of Congress publicly stated that they did not intend to authorize indefinite military detention, Wilkerson dismisses this as after-the-fact rationalization.

In fact, Justice Motz presents significant contemporary evidence that Congress did not intend anything so expansive. Congress expressly rejected a provision to apply the AUFM within the US as well as outside. Furthermore, the day after passing the AUFM (authorizing military force abroad), Congress began considering the PATRIOT Act to deal with domestic security. The PATRIOT Act expressly forbids indefinite detention of "alien terrorists," but permits temporary detention pending either criminal trial or deportation. The Administration did, in fact, request the power to indefinitely detain terrorists, but legislators of both parties rejected the proposal. The usual rule in case of a potential conflict between statutes is that the more specific statute overrides the more general one. Thus a statute specifically governing detention of terrorists in the US overrides a general authorization to use military force.

Wilkerson replies that the AUFM is the more specific statute. It addresses Al-Qaeda in particular, whereas the PATRIOT Act deals with terrorism in general. But it surpasses belief that a law about internal security passed so soon after the 9-11 attack would have nothing to do with Al-Qaeda. And considering that the PATRIOT Act expressly forbids the indefinite detention that the AUFM supposedly allows, one would expect Congress to make some acknowledgement of the contradiction.

Wilkerson constantly berates his colleagues for ignoring the "plain will" of Congress in passing the AUFM. In fact, what he is irate about is not that his colleagues are ignoring the will of Congress in passing the AUFM, but that they do not share his extremely expanded interpretation of that law. One is reminded of George Will's snark that in the future when Congress authorizes military force, the authorization will take volumes because it will have to comprehensively list every single law not repealed or overridden.