A Victory for the Rule of Law

The conservative Fourth Circuit Court of Appeals had handed down an important decision in the Al-Marri case. As you may remember, Ali Saleh Kahlah Al-Marri is a U.S. resident who was arrested 3 months after 9/11 and charged with credit card fraud and making false statements to the FBI. In 2003, while his case was pending in federal court, President Bush ordered that al-Marri be transferred to military custody and locked up in a military brig. He has been there ever since, held without charges or any process whatsoever.

Today the Fourth Circuit granted Al-Marri's habeas petition, holding in the clearest possible terms that "in the United States, the military cannot seize and imprison civilians--let alone imprison them indefinitely."

I hope to have more to say on this case later, but for now, here's the opinion and here's Marty Lederman's initial reaction.

. . . okay, I've read the opinion, and it's really quite a stirring defense of the Constitution. So much so in fact that I worry it will be reversed by the Fourth Circuit en banc. The opinion is written by Judge Motz and signed onto by Judge Gregory, both of whom were among the dissenters when the Fourth Circuit voted 8-4 to deny a rehearing in the Hamdi case. Judge Motz, in particular, wrote a strongly-worded dissenting opinion in Hamdi warning of the potential for government abuse:

I fear that [this court] may also have opened the door to the indefinite detention, without access to a lawyer or the courts, of any American citizen, even one captured on American soil, who the Executive designates an 'enemy combatant,' as long as the Executive asserts that the area in which the citizen was detained was an 'active combat zone,' and the detainee, deprived of access to the courts and counsel, cannot dispute this fact.

The Fourth Circuit is loaded with administration-friendly judges (remember this circuit sided in favor of the government in the Padilla case), so a panel that includes Judges Motz and Gregory is not necessarily representative of the circuit as a whole.

That said, Judge Motz' opinion is thorough and well-argued. In particalur, she demolishes the government's "inherent authority" argument:

[T]he president does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten our nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may excercise as they please.

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

On a relate noted, this opinion is yet another stake in the heart of the legal theories the government has put forward in defense of its warrantless surveillance program(s). The court makes short work of the government's arguments that the AUMF and/or the president's Article II powers give him the authority to disregard the clear prohibitions contained in the Patriot Act:

In contrast to contrast to the AUMF, which is silent on the detention of asserted alien terrorists captured and held within the United States, the Patriot Act, enacted shortly after the AUMF, provides the Executive with broad powers to deal with "terrorist aliens." But the Patriot Act explicility prohibits their indefinite detention. . . .

In sum, Congress has carefully prescribed the process by which it wishes to permit detention of "terrorist aliens" within the United States, and has expressly prohibited the indefinite detention the President seeks here. The Government's argument that the President may indefinitely detain al-Marri is thus contrary to Congress's expressed will. . . . As the Supreme Court explained just last term, "[w]hether or not the President has independent power . . . he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers." Hamdan. 127 S.Ct. at 2774, n.23.

That exact same reasoning applies with equal force to the issue of warrantless surveillance. The Patriot Act made numerous amendments to FISA, but it retained the unequivocal prohibition against warrantless surveillance. The argument that the AUMF and/or Article II somehow gives the president the authority to circumvent FISA is just totally frivolous.