Cert, al-Marri, and the Constitutional Limits of Detention

By Nadia Asancheyev, CNSL Fellow

Ali al-Marri is the only person on US soil being held in indefinite military custody. He is a U.S. permanent, lawful resident alien, who entered the United States with his family on September 10, 2001 to pursue his Master’s degree.  Two months later, he was taken into custody and is still there today: on December 12, 2001, he was arrested as a material witness to terrorism in connection with the 9/11 attacks.  In 2002, he was charged with credit card fraud and false statements.  In June 2003, amidst pre-trial hearings, the President abruptly ordered him into indefinite military custody. He has been in a brig in South Carolina for over five years. 

In July 2008, the 4th circuit ruled en banc, by a 5-4 majority that the Executive has authority under the AUMF to hold al-Marri, and by a different 5-4 majority, that the Executive must give him the opportunity to contest his detention. On September 19, 2008, al-Marri petitioned the Supreme Court for certiorari.

Getting the Court to grant any cert petition is a long shot at best, but there are two reasons the Court might grant cert in al-Marri. First, this case raises fundamentals questions of how we treat people captured on U.S. soil in the war on terror.  How do we treat those who are here lawfully? What more process should they receive than those captured on the battlefield, and held in Guantanamo (like al-Marri's brother)? The administration has been arguing that our Constitution and laws don't apply to Guantanamo because Guantanamo is not the United States; there are only a domestic enemy combatant cases to draw from, and al-Marri is unlike Hamdi, Lindh, or Padilla.

Second, the opinion below from the Fourth Circuit is not sufficiently clear on this all-important question of indefinite domestic detention.  The result may be correct (or not), but in 216 pages, the Fourth Circuit judges wrote seven separate opinions - hardly a model of judicial clarity. Thus, Hamdi gives insufficient guidance for what process is due to al-Marri. That makes sense; yes, Hamdi was an American cititzen held in military custody as an enemy combatant on U.S. soil, but he was also captured while fighting for the Taliban in Afghanistan, whereas al-Marri was a student in the U.S. when he was detained on a material witness warrant. Moreover, in light of Hamdi, the administration created Combatant Status Review Tribunals; a form of process-lite, which has neither been ruled upon as sufficient by the Supreme Court, nor granted to al-Marri in any instance. 

While there are moving reasons to grant cert in al-Marri, there are also strong arguments for why the Court would not grant cert.  First, insofar as al-Marri is the only man being held as an enemy combatant on U.S. soil, the problem (assuming his indefinite detention presents a problem), may not be broad enough for the Court to hear.  The Court is always concerned about the scope of its decisions, as opposed to doing justice in any one particular case. If the Court took the case and held that he was entitled to some greater-than-Hamdi form of process, what would the broader implications be? It would presumably affect aliens held on U.S. soil, an important question indeed, but apparently a rare one. It could change the government’s calculus about moving aliens in the U.S. between the criminal and military systems, perhaps giving the government less reason to transfer a suspect to the military system, but again, apparently a rare issue.  Al-Marri may be too close to a class of one for the high Court to take the case.

The Court could also take the wait-and-see approach, declining to grant the case now, but keeping an eye on it, as it did in Boumediene. This would allow them to see how the case proceeds on remand to the district court. This is unlikely, first because before Boumediene, the last time such a change in heart occurred was in 1947, and second because in Boumediene, the Court pressed the need for the detainee cases to proceed expeditiously. If the Court feels that this is a case it should rule in, it may no longer wish to delay. 

Indefinite detention without process has come to the forefront in recent days, when the Uighurs were ordered released by a DC District Court judge yesterday. There, the judge held that this case had exceeded the constitutional limits of detention; perhaps the Supreme Court will shed some light on indefinite domestic detention by granting cert in al-Marri.

Comments

[HowardGilbert]

The government claims that al-Marri was a soldier in the Army of Afghanistan who in a meeting with Bin Laden and Khalid Sheikh Mohammed (KSM) a few months before 9/11 and volunteered to enter the US and commit an act of sabotage. He was given money, training, and support for this mission. The FBI stumbled upon illegal activity, and he was held on criminal charges until shortly after KSM was captured in Pakistan along with papers and computers that contained records of ongoing operations. Based on this material, the President reclassified him as an enemy combatant (a soldier in a foreign army at war with the US) instead of a civilian criminal.

Under the Hamdi decision, al-Marri had a due process right to challenge his classification as enemy combatant before a neutral tribunal. District Court Judge Henry Floyd followed the instructions provided in Hamdi and created such a hearing within his court in the context of a Habeas proceeding. The outcome of that hearing was a finding by the District Court that Hamdi was indeed an enemy combatant.

Let me repeat that. The District Court did not rule that the President had a right to hold al-Marri under an executive claim that he was an enemy combatant. Instead, the court held that al-Marri was in fact an enemy combatant.

In the appeal, the Fourth Circuit was asked to rule that as a matter of law (that is, even if al-Marri actually is an enemy combatant) that he cannot be held in military custody today. It rejected this position, but it also held that the District Court used unnecessarily lax rules of evidence and al-Marri should get a new hearing.

If the Supreme Court does not grant cert, then the question of whether al-Marri is or is not an enemy combatant will return to the District Court. Unless you believe that this question is irrelevant, then that is what should happen. The facts should be determined at trial before appeal. Only if you argue that even if what the government says is true, and al-Marri really is a foreign soldier in an enemy army who snuck into the US the day before 9/11 on a military mission of sabotage personally approved by Bin Laden himself, but then claim that under US law enemy saboteurs cannot be held by the military today the way they were during WWII, only then is the case now ripe for SCOTUS review.

Al-Marri is the only detainee to have been classified as an enemy combatant by a Federal court instead of the executive or a CSRT. Of course that decision has been overturned and a new hearing must be held, but one would think that is a model for how things should be done. Certainly the claim that this is detention "without process" is completely wrong.