In the Courts

Al Saleh al-Marri, a U.S. legal resident, has been held in a naval brig in Charleston, South Carolina for more than four years since being designated an enemy combatant by President George W. Bush in June 2003. Prior to being labeled an enemy combatant and since December 2001, Al-Marri was in civilian custody, facing financial fraud and false statement charges. In June 2007, a three-judge panel of the court ruled that Al-Marri has the right to habeas corpus protections which give him the right to challenge his detention in a U.S. court. By a 2-1 majority, the court also ruled that the president lacks legal authority to detain Al-Marri without charge. In August, the circuit court granted a rehearing to the government, which automatically vacated the decision of the three-judge panel.

The case raises significant issues: (1) the ability of the government to take someone already detained in the civilian criminal justice system and transfer him to military custody; (2) the extent of presidential authority under the 2001 congressional Authorization for Use of Military Force (“AUMF”) to detain indefinitely a person lawfully admitted in the U.S., apprehended in the U.S., and never present on any “battlefield”; and (3) the due process rights of legal permanent residents and U.S. citizens.

Why did the government transfer someone already in civilian custody to military custody? Al-Marri, because he was already in custody facing criminal charges, was not at risk of “returning to the battlefield” (where in any event he had never been) unlike (arguably) Yasser Hamdi, a U.S. citizen who was picked up in Afghanistan fighting for the Taliban. The Supreme Court in Hamdi v. Rumsfeld held that “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war.” 542 U.S. 507, 519 (2004). The court, however, did not approve detention without charge or trial of persons suspected of ties to terrorism, and who were not captured in a theatre of armed conflict. In fact, in an analogous Civil War era case, Ex parte Milligan, 71 U.S. 2 (1866), the Supreme Court ruled that as long as the courts were functioning a civilian resident uld not be tried by military courts but only upon criminal charges in a civilian court. The court found it significant that Milligan—although charged conspiring to seize munitions, liberating prisoners of war, and communicating with the enemy—was not connected with military service and had not been captured while participating in hostile activities against the U.S. government.

Following Al-Marri’s transfer to military custody his access to his attorneys and family stopped. For 17 months Al-Marri was in held incommunicado. During that time he was allegedly denied basic necessities and interrogated under coercive and abusive conditions.

At the oral argument in Richmond, Judge William B. Traxler asked the government about the procedural safeguards to which persons seized by the military in the United States are entitled, including when the right to counsel attaches. The government replied that the right to counsel attaches “at some point” after the military has enjoyed “the right to interrogate” the detainee. But Al-Marri did have counsel while in civilian custody; it was only upon his removal to military custody that he was denied counsel for the next 17 months. Thus, was the purpose of his transfer to military custody to interrogate him outside the constraints of the Constitution and in violation of the rule in the Hamdi case that “indefinite detention for the purpose of interrogation is not authorized?”  

The government’s case rests on the assertion of presidential powers to detain under the AUMF. Judge Diana G. Motz, who wrote the June decision in favor of Al-Marri, pointed out that Congress could not have authorized Al-Marri’s detention under the AUMF because legislative history of the USA Patriot Act (the “Act”), which was passed soon after the AUMF, shows that the government sought authorization for indefinite domestic detention in the Act, but was denied. The Patriot Act allows for only seven days detention.

Judge M. Blane Michael asked the government how long Al-Marri could be kept in custody. The government replied that it could be for a long time depending on how long the U.S. is at war with Al Qaeda. “It looks like a lifetime,” Judge Michael replied.

Judge J. Harvie Wilkinson questioned what the “hoopla” about the extent of president’s detention powers was when there are only two people involved—Al-Marri and Jose Padilla (also detained as an enemy combatant for four years and then transferred to the civilian criminal justice system, prosecuted and convicted in 2007)—and not some indiscriminate number of people. The “hoopla” is simple: it’s the U.S. Constitution. Al-Marri as a lawfully admitted resident has due process rights under the Fifth Amendment and a Sixth amendment right to counsel similar to U.S. citizens. One day he is facing criminal charges in the civilian system and the next day he is transported into a military system where he is stripped of his rights.

Human Rights First has filed amicus briefs in support of Al-Marri.