a citizen’s journal by Thomas Nephew

"The military cannot seize and imprison civilians — let alone imprison them indefinitely."

Posted by Thomas Nephew on June 11th, 2007

All hail DIANA GRIBBON MOTZ, Fourth Circuit Judge, ruling against the United States executive branch in al-Marri v. Wright. I’m including her full preamble to the detailed ruling below, because I think it’s nothing short of ringing:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since — without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting 5 that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute — enacted years after al-Marri’s seizure — strips federal courts of jurisdiction even to consider this habeas petition.

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely.

Via Marty Lederman (“Balkinization”). The ruling — if it stands up to appeal — is significant for setting limits to the scope of the execrable September 2006 Military Commissions Act, which among other things threatened legal residents with loss of habeas corpus, i.e., recourse to the U.S. judicial system to challenge their imprisonment. Bloomberg News‘ Robert Schmidt spoke with al-Marri lawyer Jonathan Hafetz, of the Brennan Center for Justice in New York, and reported:]

The ruling “protects legal residents and citizens from secret detention,” Hafetz said in a statement. “In the American tradition, the court found that the president cannot expand his power, even in times of terror, above and beyond the other co- equal branches of the government.”

Because he was captured and is being held in the U.S., al- Marri’s case differs from those of about 385 detainees held by the Bush administration at Guantanamo Bay in Cuba. A law passed last year stripped away much of those detainees’ ability to challenge their detentions in federal courts.

Today’s decision held that the law, the Military Commissions Act, didn’t apply to al-Marri. The judges said he was entitled to have his so-called habeas corpus petition granted.

It comes as little surprise that The Talking Dog interviewed Mr. Hafetz last year about the case as part of his excellent series of interviews with people involved in legal issues connected to Guantanamo, the “war on terror,” and detainee treatment; at that time, Hafetz explained that the al-Marri case was as important as the more famous case of Jose Padilla:

Certainly, his case has received less publicity than Padilla, who is, of course, a citizen, whereas Al-Marri is a legal immigrant. The fact is, the government’s argument as a basis for holding him is the same as Padilla: that the entire United States is a battlefield in the administration’s “war on terror.” While the Hamdi case concerned a citizen engaged in hostilities on a foreign battlefield, thus far, the U.S. Supreme Court has not ruled on the legality of the government’s detaining a civilian arrested in the United States itself (and it avoided the opportunity to do so recently in Padilla’s appeal).

In a second post, Marty Lederman (“Balkinization”) summarizes the al-Marri ruling as follows:

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.

There’s more to the decision and the case, of course; for example, in what Lederman calls a “hidden alternative finding,” Motz writes that another key feature of the case was that al-Marri was (1) already in civilian custody when he was taken into military custody, and (2) that transfer was very likely done in order to interrogate him in ways prohibited by U.S. law and the Constitution. Lederman says both points suggest that even if authorization of military force was construed to apply against American citizens or legal residents, it would not have authorized this.

In a way, of course, it’s sad it’s possible to get excited about and want to celebrate a ruling as straightforward as this one. Of course people on American soil, at minimum, are entitled to the full protections of American law. Right? No, not of course — only when people actually go to the mat for that principle. Thank you, Brennan Center for Justice and the friends of the court who filed on al-Marri’s behalf, including Human Rights First, Human Rights Watch, Muslim Advocates, Center for National Security Studies, National Immigrant Justice Center and the World Organization for Human Rights USA, among many others.

NOTE: from a comment at “Balkinization,” I gather that Judge Diana G. Motz may well be the spouse of Judge J. Frederick Motz. Mr. Judge Motz ruled in RILA v. Fielder that a Maryland “Fair Share Health Care” law evening the health care costs playing field between Wal-Mart and competitors was void, because it conflicted with federal “ERISA” law. I happen to think that both Motz and (ahem) the appeals court that upheld him ruled incorrectly. But one Motz out of two ain’t bad!

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