I had no idea Charley was working on this stuff. It's an honor to know he's around these parts. Thanks for the link.
Good news from the 4th Circuit, believe it or not: the military cannot continue to hold a Qatari civilian who was arrested, transferred to military custody, and declared an "enemy combatant" under the LOLIS standard.
The key part of the ruling on presidential powers declared: "Even assuming the truth of the government's allegations [against al-Marri], the President lacks the power to order the military to seize and indefinitely detain al-Marri....[W]e have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian....The President's constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri without criminal process any more than they permit the President to order the military to seize and detain, without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing."
"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," the majority said, "we can only conclude that in the case at hand, the President claims a power that far exceeds that granted him by the Constitution."
We may expect it to be taken en banc or appealed to the SCOTUS (probably the former, it delays longer), but any good news is welcome.
Btw, that guy was arrested in Dec. 2001.
SCOTUSBlog doesn't link the opinion.
Yay for Judge Motz and al Marri's lawyers.
Al Marri was the last "enemy combatant" detained in the continental United States--unlike the other two, Padilla and Hamdi, he was not a U.S. citizen.
Because he was being held in S. Carolina, I think the en banc Circuit is pretty unlikely to overturn this decision--unless they want to be overturned by the Supreme Court again (as they were in Hamdi--Motz wrote a great dissent in that case--& would've been in Padilla if not for the transfer to criminal custody). But it's easily distinguished from the Guantanamo cases for the same reason.
That shouldn't minimize the importance of this though--if this decision holds, it essentially undoes the MCA's suspension of habeas for noncitizens in the United States (technically, the court construed the MCA so that it would NOT violate the Constitution by suspending habeas, instead of finding that it did violate the Constitution and striking it down--but the effect is the same).
Giant caveat: I haven't read the whole decision yet, just summaries etc.
Bonus points to the first person pointing to a right wing blog declaring that the 4th Circuit has just ordered the U.S. to surrender in the War on Terra!
SCOTUSBlog's already got a commenter saying that this opinion is the work of the dread Clinton appointees, which is almost as good.
Anderson, Do you post as "Anderson" at volkokh?
Actually, I'm both overstating and understating things. It does more than reverse the MCA as far as habeas jurisdiction--it also appears to reject the "world as a battlefield" theory, & says: this guy can't be held as an enemy combatant because he wasn't captured during the real war in Iraq and Afghanistan. The part of the holding about having habeas jurisdiction I think is quite safe; the part that says he can't be held as an enemy combatant at all because Congress hadn't authorized this type of detention might well be, by either the en banc 4th Circuit or the Supreme Court.
It seemed clear to me that there were 5 votes on the Supreme Court that said you couldn't hold *citizens* captured in Chicago as enemy combatants--original 4 Padilla dissenters + Scalia based on his Hamdi dissent saying 'charge him or suspend the writ.' This is why they transferred Padilla rather than let the Supreme Court hear the case. But when it comes to noncitizens, even on U.S. soil, Scalia might feel differently, and who knows what Kennedy thinks.
Justice would return to this country with the force of a roundhouse kick, if only we'd put the right man in office.
But when it comes to noncitizens, even on U.S. soil, Scalia might feel differently, and who knows what Kennedy thinks.
In my crash course on the history of habeas these past few years, I've acquired the strong impression that the pre-1789 writ ran to foreign residents. (Katherine knows more about it than I do of course.) Scalia's principles are flexible, but I wouldn't rule out a stinging "charge him or free him" op like his Padilla dissent.
"Who knows what Kennedy thinks" -- the truest analysis ever spoken. Still, I think Kennedy is basically genial & a bit vain, and I don't think he wants to be remembered for signing onto a modern-day Dred Scott or Korematsu.
Yay CharleyCarp! Yay Katherine! It's hard to get as excited as I should about the idea that there may still be some shreds of civil liberties even in the Fourth Circuit, but at this point I guess we take what we can get and are happy for it. And grateful for those who make it happen.