al-Marri and Indefinite Detentions

Update: Here’s my analysis of the decision (I don’t have any background in law, so take it with a grain of salt), with the first three points unanimous:

1. legal US residents have the same rights as US citizens, for the rights that were integral to the case
2. the President does not have inherent powers to detain US residents indefinitely without trial, but can detain combatants for the duration of combat
3. historically, al-Marri would not have been considered a combatant (illegal or otherwise)
4. the AUMF grants the President powers to declare some people, citizens or not, combatants and so indefinitely detain them –this is where there was a lot of disagreement, four said the AUMF did not change the definition of combatants while the others said it did but in different ways and extent.

Now here is the original post:

I hadn’t heard much about this case:

President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.

…

Mr. Marri is the only person on the American mainland known to be held as an enemy combatant. The government contended, in a declaration from the defense intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent sent to the United States to commit mass murder and disrupt the banking system.

Since al-Marri was a legal resident of the US, the decision could also apply to citizens:

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 five years ago, military authorities seized Ali Saleh Kahlah al-Marri, 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 imprisoned awaiting trial 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 indefinite military detention — or even the indefinite military detention of a similarly situated American citizen — is proper.

All of the justices in the case agreed that the protections under the constitution do apply to al-Marri, but the majority ruled that the AUMF (Authorization for Use of Military Force) allows the President to declare terrorists or people who aid, … terrorists to be enemy combatants. Here is the basic reasons for that declaration:

The Rapp Declaration asserts that al-Marri: (1) is “closely associ­ated with al Qaeda, an international terrorist organization with which the United States is at war”; (2) trained at an al Qaeda terrorist train­ing camp in Afghanistan sometime between 1996 and 1998; (3) in the summer of 2001, was introduced to Osama Bin Laden by Khalid Shaykh Muhammed; (4) at that time, volunteered for a “martyr mis­sion” on behalf of al Qaeda; (5) was ordered to enter the United States sometime before September 11, 2001, to serve as a “sleeper agent” to facilitate terrorist activities and explore disrupting this country’s financial system through computer hacking; (6) in the summer of 2001, met with terrorist financier Mustafa Ahmed al-Hawsawi, who gave al-Marri money, including funds to buy a laptop; (7) gathered technical information about poisonous chemicals on his laptop; (8) undertook efforts to obtain false identification, credit cards, and bank­ing information, including stolen credit card numbers; (9) communi­cated with known terrorists, including Khalid Shaykh Muhammed and al-Hawsawi, by phone and e-mail; and (10) saved information about jihad, the September 11th attacks, and Bin Laden on his laptop computer.
The Rapp Declaration does not assert that al-Marri: (1) is a citizen, or affiliate of the armed forces, of any nation at war with the United States; (2) was seized on, near, or having escaped from a battlefield on which the armed forces of the United States or its allies were engaged in combat; (3) was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or (4) directly participated in any hostilities against United States or allied armed forces.

Here is specifically what the AUMF states in support of this:

The Government’s primary argument is that the AUMF, as con­strued by precedent and considered against “the legal background against which [it] was enacted,” i.e., constitutional and law-of-war principles, empowers the President to order the military to seize and detain al-Marri as an enemy combatant. The AUMF provides:

“T]he President is authorized to use all necessary and appro­priate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The dissenters argue why this does not change previous definitions of an enemy combatant:

Tellingly, the Deputy Solicitor General conceded at oral argument before the en banc court that the AUMF only authorizes detention of enemy combatants. Thus, the Government does not argue that the broad language of the AUMF authorizes the President to subject to indefinite military detention anyone he believes to have aided any “nation[ ], organization[ ], or person[ ]” related to the September 11th attacks.  Such an interpretation would lead to absurd results that Congress could not have intended.
Under that reading of the AUMF, the President would be able to subject to indefinite military detention anyone, including an American citizen, whom the President believed was associated with any organi­zation that the President believed in some way “planned, authorized, committed, or aided” the September 11th attacks, so long as the Presi­dent believed this to be “necessary and appropriate” to prevent future acts of terrorism.
Under such an interpretation of the AUMF, if some money from a nonprofit charity that feeds Afghan orphans made its way to al Qaeda, the President could subject to indefinite military detention any donor to that charity. Similarly, this interpretation of the AUMF would allow the President to detain indefinitely any employee or shareholder of an American corporation that built equipment used by the September 11th terrorists; or allow the President to order the mili­tary seizure and detention of an American-citizen physician who treated a member of al Qaeda.

They later argue that someone who gives to Greenpeace could be held by Japan if they followed a similar way of thinking, since Japan considers Greenpeace a terrorist organization.

In coming to the conclusion that al-Marri should be considered a civilian, the dissenters looked at two cases that had similar pieces:

In Quirin, which the Hamdi plurality characterized as the “most apposite precedent”  the Supreme Court upheld the treatment, as enemy combatants, of men directed, outfitted, and paid by the German military to bring explo­sives into the United States to destroy American war industries during World War II. The Quirin Court concluded that even a petitioner claiming American citizenship had been properly classified as an enemy combatant because “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy bellig­erents [combatants] within the meaning of . . . the law of war.”  The Court cited the Hague Convention “which defines the persons to whom belligerent [i.e., combatant] rights and duties attach”  in support of its conclusion that the Quirin petitioners qualified as enemy combatants. Given the “declaration of war between the United States and the German Reich” and that all the Quirin petitioners, including one who claimed American citizenship, were directed and paid by the “military arm” of the Ger­man Reich, the Court held that the law of war classified them as enemy belligerents (or combatants) and so the Constitution permitted subjecting them to military jurisdiction.

They conclude that this does not apply here because al-Marri is not associated with an enemy government. Another case seems to be very close to this one:

In Milligan, the Court rejected the Government’s impassioned contention that a presidential order and the “laws and usages of war” justified exercising military jurisdiction over Lamdin Milligan, an Indiana resident, dur­ing the Civil War. The Government alleged that Milligan had commu­nicated with the enemy, had conspired to “seize munitions of war,” and had “join[ed] and aid[ed] . . . a secret” enemy organization “for the purpose of overthrowing the Government and duly constituted authorities of the United States.” The Court recognized that Milligan had committed “an enormous crime” during “a period of war” and at a place “within . . . the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy.” But it found no support in the “laws and usages of war” for subjecting Milligan to military jurisdiction as a combatant, for although he was a “dangerous enem[y]” of the nation, he was a civilian and had to be treated as such.

That certainly seems very similar to me.

I find this to be a very scary judgement. It means that we could be subject to detention if we aid a terrorist group even indirectly. I’m sure this will move to the Supreme Court, so we’ll see what they have to say.