Posted by Dale Carpenter:
Supreme Court takes another detainee case:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228510601
Here we go again. [1]According the The New York Times:
The case concerns Ali al-Marri, the only person on the American
mainland being held as an enemy combatant, at the Navy brig in
Charleston, S.C. Mr. Marri, a citizen of Qatar, was legally in the
United States when he was arrested in December 2001 in Peoria,
Ill., where he was living with his family and studying computer
science at Bradley University.
Eighteen months later, when Mr. Marri was on the verge of a trial
on credit card fraud and other charges, President Bush declared him
an enemy combatant, moving him from the custody of the Justice
Department to military detention. The government says Mr. Marri is
a Qaeda sleeper agent sent to the United States to commit mass
murder and disrupt the banking system.
The case, which will probably be argued in the spring, will present
the Obama administration with several difficult strategic choices.
It can continue to defend the Bush administration�s expansive
interpretation of executive power, advance a more modest one or
short-circuit the case by moving it to the criminal justice system.
In July, the United States Court of Appeals for the Fourth Circuit,
in Richmond, Va., issued a fractured decision in the case. In one
5-to-4 ruling, the court ruled that the president has the legal
authority to detain Mr. Marri.
But a second, overlapping 5-to-4 majority of the court ruled that
he must be given an additional opportunity to challenge his
detention in federal court. An earlier court proceeding, in which
the government had presented only a sworn statement from a defense
intelligence official, was inadequate, the second majority ruled.
The issue of the President's power to detain enemy combatants under
the post-9/11 congressional Authorization to Use Military Force was
decided in the President's favor in Hamdi v. Rumsfeld in 2004. But the
Court also said that detainees must be given a hearing to challenge
their designation.
The difference between this case and Hamdi and the other detainee
cases appears to be that al-Marri was seized while lawfully residing
in the United States. Hamdi was captured on the battlefield in
Afghanistan. Jose Padilla, another detainee held as an enemy combatant
(and later tried and convicted) was captured upon arrival at the
Chicago airport, but in connection with his activities in Afghanistan.
Al-Marri's attorneys are apparently arguing that the circumstances of
his case are beyond the detention authority granted to the President
in the AUMF and that, consequently, he must either be tried or
released.
I haven't read the briefs yet but it's hard to see how the location of
his capture would make much of a difference to the Court. If indeed
the President has the power to detain people he designates as enemy
combatants under the AUMF, as the Court held in Hamdi, al-Marri is
entitled to a status-review hearing but not a trial. The government's
claim, after all, is that he is acting in concert with Al Queda. The
AUMF allows the President to use force, including detention, against
any person or organization "he determines" is connected with 9/11. It
contains no geographic restriction on where that force may be used.
Indeed, Hamdi was a citizen held in South Carolina after being
captured abroad, facts which made no dent in the President's power to
detain enemy combatants. But the executive power is now on a losing
streak in these war-on-terror cases, so bets are off.
As for the position of the Obama administration in the case, will this
be another test of the [2]Orin postulate that all things criminal and
reckless under the Bush administration will now be necessary and
proper under the enlightened one?
References
1. http://www.nytimes.com/2008/12/06/us/w05scotus-web.html?hp
2. http://volokh.com/posts/1225858249.shtml
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