Why the al-Marri Decision Was Right

The Fourth Circuit's al-Marri decision is just a day old, but already it is being attacked. Andrew McCarthy has a new piece up at the National Review's website which is, not surprisingly, highly critical of the decision. In his typically hyperbolic fashion, he decries the "use of the American people’s courts as a weapon against the American people" and claims that the Fourth Circuit "intervened on the enemy’s behalf."

Once you get past the bluster, though, McCarthy makes an argument that deserves some attention, if for no other reason than it will be repeated endlessly by opponents of the decision between now and the time the case is reheard--either by the full Fourth Circuit or the Supreme Court.

McCarthy writes:

[A] divided panel of the Fourth Circuit U.S. Court of Appeals in Virginia ruled that the commander-in-chief may not detain a terrorist operative as an unlawful enemy combatant if that operative has managed to enter the United States and is present here lawfully . . . Instead, the majority ruled that al-Marri, a national of Qatar here on a student visa, must either be given a full-blown trial in the civilian-justice system or be released. That is, our “choice” is either to afford al-Marri — who answered directly to 9/11 mastermind Khalid Sheikh Mohammed and met personally with bin Laden — a proceeding in which he would receive lavish discovery that could be extremely helpful to the people trying to kill us, or to release him so that he could rejoin the jihad and continue trying to kill us himself.

Over at the Volokh Conspiracy, Orin Kerr makes a similar point, though in much more civil way (i.e. without the accusations of treason and messianic certainty that he is right):

So what should the government do? It seems to me that under the Fourth Circuit's decision in Al-Marri v. Wright, the government has two choices: it can either deport the men or else must set them free. The military cannot hold them, Al-Marri teaches; they are not "enemy combatants" but rather are merely "civilians." . . . From a standpoint of policy, this result seems incredibly bizarre to me.

First, as a purely factual matter, let's be clear about what the court held. Having determed that al-Marri was being held unlawfully, the court stated the following:

The government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.

Why is the government limited to this particular set of options? Well, it's actually pretty simple. As the Court makes abundantly clear, these are the only options currently provided for by U.S. law.

Once you get past the initial jurisdictional question (i.e. does the court have jurisdiction to hear al-Marri's habeas petition?), the case boils down to one simple question: is al-Marri's detention lawful? Although the Constitution is always looming in the background, this is a primarily a statutory question. And the bottomline is that U.S. law not only does not provide for military detention of "terrorist aliens" like al-Marri, it expressly prohibits it.

That's what the Court held. The basis for its decision was almost entirely statutory, as the Court made clear:

Because Congress has not empowered the President to subject civilian alien terrorists within the United States to indefinite military detention . . . we need not, and do not, determine whether such a grant of authority would violate the Constitution.

In other words, if Congress were to authorize this type of military detention, that's another story, but until that happens, the law is the law. If the current set of options available for dealing with potential terrorists lawfully within the United States is inadequate (or "bizarre"), the remedy is to create a new lawful mechanism for dealing with people like al-Marri. But the President can't just disregard the law.

In this case, the government was asked to explain under what lawful authority it was detaining al-Marri. The government's lawyers offered only two arguments: 1) that the AUMF implicitly provided the President with the power to militarily detain him and 2) that the President has the "inherent authority" under Article II of the Constitution to militarily detain him.

If these arguments sound familiar, it's because they're the exact same arguments the Bush administration has put forth (unsuccessfully) in defense of its warrantless surveillance program(s) and original military tribunal system. They are the same arguments that were rejected in Hamdan last year.

To state things in the simplest possible terms: spying on people within the U.S. without a warrant is a BIG DEAL. So is detaining them indefinitely without process. Both of these acts, at the very least, raise MAJOR constitutional questions. And it is simply unreasonable to claim that when Congress passed the AUMF, it was implicitly authorizing the government to engage in conduct directed at people lawfully within the United States that would otherwise be expressly illegal.

As the Court in al-Marri put it, "if Congress intended to grant this authority it could and would have said so explicitly."

Moreover, as the Court points out:

In fact, shortly after Congress enacted the AUMF, it enacted another statute that did explicitly authorize the President to arrest and detain "terrorist aliens" living within the United States believed to have come here to perpetrate acts of terrorism. . . .

[T]he Patriot Act establishes a specific method for the Government to detain aliens affiliated with terrorist organizations, who the Government believes have come to the United States to endanger our national security, conduct espionage and sabotage, use force and violence to overthrow the government, engage in terrorist activity, or even who are believed likely to engage in any terrorist activity. Congress could not have better described the Government's allegations against al-Marri -- and Congress decreed that individuals so described are not to be detained indefinitely but only for a limited time, and by civilian authorities, prior to deportation or criminal prosecution.

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.

Just as the AUMF did not silently amend FISA or the UCMJ, it did not amend the laws governing the detention of people lawfully within the United States. And it certainly could not have silently amended the Patriot Act, which was enacted subsequent to the AUMF.
So the only argument remaining is that the president has authority under Article II to disregard the express will of Congress.

Citing Youngstown and Hamdan, the Court made quick work of this argument.

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 (citing Youngstown...).

In other words, the President cannot simply disregard the statutory framework that Congress established (and the President himself signed into law!) for dealing with this type of situation. The law is clear and it has to be followed.

In his latest post, Professor Kerr argues that there is "a continuum between fighting wars and fighting crime." He observes:

What I found odd about Al-Marri is that it seems to treat most cases of Al Qaeda terrorists here to attack us as crime cases. It seems to me like an effort to bypass the Supreme Court's sliding scale war-crime framework in Hamdi and to replace it with a regime in which all the Al-Qaeda bad guys are forced into the crime model. I don't think this is the right box, which is why I see the Al-Marri framework as odd.

Respectfully, I think this is a bizarre way to analyze the issue. We're not dealing with Platonic categories here ("war," "crime," etc.). We're dealing with laws. Al-Marri fits within the "criminal model" because that's what U.S. law expressly requires. Hamdi was detained while fighting against the U.S. on the battlefield in Afghanistan. Al-Marri was arrested at his home in Peoria. These distinctions matter not just in a Platonic sense, but in a concrete legal sense. And as long as there are valid statutes on the books that govern a particular situation, the courts don't have to be in the business of making Platonic distinctions.

Should Congress pass a law authorizing the President to militarily detain people who are lawfully within the United States for indefinite periods of time, then (and only then) will the courts be forced to confront the more difficult question of whether such detention can be justified under the Constitution.

But we live in a democracy, and in a democracy, major policy decisions--such as whether the government should be allowed to spy on its own citizens without a warrant or whether the President can place people who are lawfully within the country in indefinite military detention--are supposed to be made by the people's representatives in Congress. We are a nation of laws, and the President cannot simply disregard those laws in the name of protecting us from terrorism. I'd suggest that if Mr. McCarthy or Professor Kerr are troubled by the current options the government has at its disposal for dealing with suspected terrorists within the United States, they should direct their concerns to Congress, not the courts.