scales_of_justice.jpgThe US Court of Appeals for the Fourth Circuit issued an important though complex ruling regarding the right of habeas corpus as applied to persons designated as “enemy combatants.” In a 2-1 decision, the Court ruled that a legal US resident alien, Ali al-Marri (a foreign student lawfully in the US under a student visa) was entitled to invoke habeas corpus and could not be held indefinitely by the military without charges, even though he had been declared an “enemy combatant” by President Bush. Marty Lederman has two initial reactions to the decision here, including a link to the Court’s full opinion.

The ruling appears to be highly significant, because it holds that the reprehensible Military Commissions Act enacted last November did not strip the federal courts of their jurisdiction to hear habeas petitions when brought by lawful US residents; the Court ruled the Act simply did not apply to Al-Marri.

That part of the ruling thus does not directly affect detainees at Guantanamo, as none of them are legal US residents and all were seized overseas. Al-Marri was a legal resident in the US, on a student visa attending a US university. He was arrested in the US after 9/11 on allegations (among other things) of having false identification and credit cards, and was about to be tried in the regular US criminal justice system. But just before this was to begin, he was seized by the military after the President declared him to be an “enemy combatant,” and then held and interrogated in a military prison in South Carolina for four years without charges or access to counsel. His attorneys eventually sought release from military detention via a habeas petition to federal courts. The District Court had denied the petition, and his lawyers appealed to the Circuit Court.

Note in particular Marty’s analysis of a footnote in the Court’s opinion that strongly suggests that the Administration transferred al-Marri to military authority and “enemy combat” status primarily so that he could be interrogated by the military. Marty notes that under recent Supreme Court decisions, this would be an unlawful basis for seizing al-Marri, holding him and declaring him to be an “enemy combatant.” Marty suggests that fact may make it very difficult for the Government to overturn the decision on appeal. The case will likely be appealed next to the full panel of the Fourth Circuit Court.

Moreover, the Court held that the President’s inherent Constitutional powers to designate US residents as “enemy combatants” are limited along the lines of the Youngstown Supreme Court decision. In other words, in attempting to designate Al Marri as an enemy combatant, the President was seeking to exercise power in an area in which the Congress could also legislate, and since Congress had already enacted a statutory limit on the President’s power in this area (the Patriot Act), his “inherent” powers to act unilaterally were at their lowest. The Court thus rejected the Administration’s claim that the President has the inherent, unchecked Constitutional power to do whatever he wants in designating US residents as “enemy combatants.” (The Youngstown analysis also applies when evaluating the scope of the President’s Constitutional powers to authorize warrantless surveillance of US citizens, because Congress passed the FISA statute expressly limiting the executive’s surveillance authority.) Some highlights from today’s decision:

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.

[snip]

In light of al-Marri’s due process rights under our Constitution and Congress’s express prohibition in the Patriot Act on the indefinite detention of those civilians arrested as “terrorist aliens” within this country, we can only conclude that in the case at hand, the President claims power that far exceed that granted him by the Constitution.

We do not question the President’s war-time authority over enemy combatants; but absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercxise military authority over civilians within the United States. . . . [citations omitted] . . . Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the Untied States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.”

Again, this is a complex case, and I’ve only had a chance to skim through it. But this appears to be an important decision in limiting the President’s unilateral authority when dealing with civilians lawfully in the US.

Related posts:

  1. Innocence Ended: Uighurs Still Seek Fair Day in Court
  2. Tortured Logic: Judge Richard Leon Delivers Habeas Smackdown
  3. Supreme Court Will Hear Uighur Case
  4. Court Allows Padilla Suit Against Yoo to Proceed
  5. Defense counsel in USA v. KSM, et al petition federal appeals court to end Congress’s segregated, sham Military Commissions