Constitutional Law

Fourth Circuit Decision in Al-Marri "Repudiates the Most Fundamental Element of Constitutional Liberty"

by Shahid Buttar, Counsel at Muslim Advocates, which filed an amicus brief in al-Marri

Last week, the U.S. Court of Appeals for the Fourth Circuit held en banc in al-Marri v. Pucciarelli that the President is authorized — by Congress’ grant of authorization to apply military force in Afghanistan — to indefinitely detain individuals as enemy combatants.

In short, the decision repudiates the most fundamental element of constitutional liberty, freedom from arbitrary detention, and places even U.S. citizens at risk of arbitrary and indefinite detention by an essentially unrestrained executive.

On the one hand, the case specifically concerned a citizen of Qatar in the U.S. on a student visa to complete graduate training in computer science at Bradley University in Peoria, IL, where he lived with his wife and five sons, and where he had obtained a Bachelor’s degree in the early 1990s. However, while approving an expansive construction of the Authorization of the Use of Military Force and executive power (part of which stretched even beyond the government’s arguments[1]), the judges acknowledged the irrelevance of the distinction between citizens and lawful residents.[2] Moreover, even the judge whose opinion effectively controlled the court recognized that an authority to detain based on the AUMF could justify detention of indefinite duration.[3]

Public reports about the case emphasized its seeming even-handedness, noting that while the court upheld so imperial a vision of executive power in the abstract, it saw fit to check the executive in this single instance and require further process for individuals deemed “enemy combatants.” But the court’s willingness to require a mere modicum of process should not comfort observers.

Central to the court’s analysis is its construction of the Authorization for Use of Military Force (AUMF), in which Congress authorized the President to invade Afghanistan one week after the 9-11 attacks. The AUMF purports “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.” It includes neither any express intention to abrogate the domestic criminal detention system, nor even a mere passing reference to it. In fact, the legislative history from the resolution’s passage indicates that Congress did consider fundamental revisions to the criminal justice system, only to affirmatively reject them.[4]

As Judge Diane Gribbon Motz correctly observed, “Quirin, Hamdi, and Padilla all emphasize that Milligan’s teaching — that our Constitution does not permit the Government to subject civilians within the United States to military jurisdiction — remains good law.”[5] “Even assuming the Constitution permitted Congress to grant the

President such an awesome and unprecedented power . . . . [t]he AUMF lacks the particularly clear statement from Congress that would, at a minimum, be necessary to authorize the indefinite military detention of civilians as enemy combatants.”[6]

While the Fourth Circuit adopted a draconian analysis of detention that allows the President nearly unfettered authority as a matter of policy, it also (due to the “swing” vote of Judge Traxler) rejected the classification of Mr. al-Marri as an “enemy combatant” without some further, though potentially perfunctory, process. 

On the one hand, courts have upheld some previous cases of domestic detention, such as Hamdi and Padilla. However, those instances have previously occurred only within the narrow bounds of persons whom — at least at one point — were “armed and present in a combat zone” with forces hostile to the United States. 

In sharp contrast, “unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world.”[7] Al-Marri was initially arrested, charged and prosecuted by civilian authorities for credit card fraud. Noting that he had been denied even minimally sufficient process in his designation as an enemy combatant, the majority also recognized that, at the time he was transferred to a military prison, Mr. al-Marri had already been in civilian detention for well over a year and had already faced prosecution once.[8] 

Moreover, even to the extent the decision appears to vindicate Due Process, it does so only marginally. Ultimately, while “[t]he majority of [the judges] agree that a person of al-Marri’s status is entitled to more due process than that which he received . . . there is no concrete guidance as to what further process is due.”[9]

According to Michael Ratner of the Center for Constitutional Rights, "The court in the narrow decision has put its imprimatur on the most dangerous departure from fundamental rights: the administration's treatment of what should be serious crimes as acts of war and its departure from fundamental protections of our constitution. . . .” The al-Marri decision may represent a narrow victory for detainee rights in requiring minimal process, but it is a travesty with respect to executive power, constitutional rights, or the rights of any individuals in the United States — including citizens — placed at potential risk of political or other retribution by the overbroad prevention detention scheme it could be read to support.

Full post as published by ACS Blog on July 22, 2008 (boomark / email).