RICHMOND, Va.—The Justice Department must think three times is a charm when it comes to the enemy combatants they've socked away in Navy brigs.
Its first kick at the can was Yaser Esam Hamdi—a U.S. citizen captured on the battlefield in Afghanistan and held for almost three years by the military without charges. After a face-off with the Supreme Court, Hamdi was released and sent home. (Oops.) The second try was Jose Padilla, grabbed as a so-called dirty bomber, * locked down in a Navy brig where he was—it seems—brutally treated, then demoted to a civilian criminal trial just prior to a face-off with the Supreme Court. (Oops, we did it again.) And then there was one: Ali Saleh Kalah al-Marri is the last person designated an enemy combatant who's still in a brig. Unlike Hamdi and Padilla, al-Marri, who is being held in Charleston, S.C., * isn't a U.S. citizen. Unlike Hamdi and Padilla, he was nabbed on the streets of Peoria, Ill. And unlike Hamdi and Padilla, the government has not yet gone toe-to-toe with the U.S. Supreme Court in his case.
But today the government goes toe-to-toe with Judge Diana Gribbon Motz of the 4th Circuit Court of Appeals. The same Judge Motz who wrote a dissent in Rumsfeld v. Hamdi that could light your barbecue from 100 feet:
I fear that [this court] may also have opened the door to the indefinite detention, without access to a lawyer or the courts, of any American citizen, even one captured on American soil, who the Executive designates an 'enemy combatant,' as long as the Executive asserts that the area in which the citizen was detained was an 'active combat zone,' and the detainee, deprived of access to the courts and counsel, cannot dispute this fact.
The 4th Circuit outvoted her in Hamdi and got snookered in Padilla. The question today is whether that court's capacity for being worked by the Bush administration is infinite. The three-judge panel hears argument this morning in the federal courthouse in Richmond.
Al-Marri has been in federal custody for more than five years, 17 months of which he served without any legal contact. A native of Qatar here on a student visa, he was picked up after Sept. 11 and, if the government is to be believed, his phone records and computer files show connections to the planners and financiers of 9/11 as well as plans for future chemical attacks. But in 2003, before he stood criminal trial on credit card and other fraud charges, the Bush administration swooped him up, tagged him an "enemy combatant," and threw away the key. A federal judge in North Carolina agreed that detention was lawful. So, here we are in Richmond.
Jonathan Hafetz, from the Brennan Center for Justice, represents al-Marri, who isn't in court. He tells the panel the only question in this dispute is "whether criminal law or military law governs," warning that the president "can't militarize the arrest of a man in Peoria by a stroke of the pen."
He turns to whether the court even has jurisdiction to hear this case. The recently enacted Military Commissions Act of 2006 provides, in part, that "[n]o court, justice, or judge shall have jurisdiction to hear or consider any [legal] action against the United States ... related to any aspect of the ... confinement of a noncitizen properly deemed an enemy combatant." A threshold question for this panel is whether, as the government contends, the MCA strips it of the power to hear the habeas petition of a legal resident who is detained in the United States.
Judge Motz questions Hafetz on how, under the statute, someone is "properly deemed" an enemy combatant and presses him to distinguish al-Marri from the detainees at Guantanamo. Hafetz says that as a lawful resident alien, al-Marri is entitled to "the same rights under the Fifth and Sixth Amendments of the Constitution as any citizen of the United States."
Motz: "The bulwark of your argument is that he has certain constitutional rights. What constitutional rights?" She adds: "Habeas doesn't give him a right. It just gives him a remedy."
Judge Gregory is sympathetic toward Congress. "Congress gave the president broad powers after Sept. 11 to wage a war on terror," he says. It allowed him to use "all force necessary." But, replies Hafetz, the Authorization for Use of Military Force "didn't give the president authority to detain someone arrested in his home with no connection to the battlefield!"
"Don't you think Congress knew this was a pretty amorphous definition of war?" Gregory asks. "This war was provoked by a domestic attack!"
Motz explains her problem: "You assume he's a civilian," she tells Hafetz. "They assume he's an enemy combatant. But nobody has told us what we look to, to make that determination."
Hafetz says that to be an enemy combatant, the defendant "must be a direct participant in hostilities, or have some connection to the battlefield. Otherwise, you are just unraveling the AUMF to allow military jurisdiction to swallow criminal law." That authorization allowed the president to go after fighters in Afghanistan, he says, "not to turn all of the United States into a battlefield."
David Salmons, assistant to the solicitor general, gets a turn on the hot seat. Salmons seems to have a little problem allowing Motz to complete her questions. At the Supreme Court that's a hanging offense, but things seem a little looser here at the 4th Circuit. Salmons opens with the claim that al-Marri was only designated an enemy combatant after "an extensive, multi-agency review process." Motz promptly jumps on his head.
"Is there any evidence that al-Marri is involved with the Taliban?" she asks. No.
"Or any other nation-state?" No.
"Because often in these cases the government has some late-breaking developments. Are there no late-breaking developments here?" she demands.
Motz distinguishes between the president's authority to wage war on the Taliban (representing a nation-state) and al-Qaida, at least according to "the laws of war."
"But we are at war with al-Qaida," protests Salmons.
"But there is no nation of al-Qaida," retorts Motz. "Al-Qaida is everywhere."
"Can the president declare any member of Hamas an enemy combatant?"
"Yes," Salmons says, "That was this court's decision in Padilla."
Motz comes back: "There's no doubt after Hamdi that the president has the right to detain an enemy combatant. But what I don't understand is, how do you make that determination? When I call someone an ostrich, I look in the dictionary for a definition. But what did the president look to in determining whether he was an enemy combatant?"
Salmons says the AUMF was perfectly clear—anyone responsible for the 9/11 attacks is fair game for the president. Motz won't budge. "Nations have wars against each other. People have quarrels or fights."
Motz asks whether the government believes even U.S. citizens can be treated this way. "Yes. That was Padilla," says Salmons.
At this point Motz is forced to scold Salmons for constantly speaking over her questions: "Mr. Salmons. I am sure you have a lot more things to say … " He interrupts to apologize. The two skirmish about the precedential value of the 4th Circuit's decision in Padilla. She wonders if it needs to be vacated or if the court could simply determine that "it doesn't have much precedential force." That Padilla decision, even though it sent Judge Michael Luttig into orbit, is still the strongest judicial statement of approval for the president's claims to limitless executive authority. Motz would be quite delighted to set it on fire.
Judge Gregory says he agrees with the government that the AUMF extends to al-Qaida. "But the Patriot Act gives protections to noncitizens … before you can be plucked from the streets and called an enemy combatant." He tells Salmons, "You've swallowed up all the protections of the Patriot Act and the Constitution."
Motz is still searching for some way to constrain—she calls it "cabin"—the executive power arising from the AUMF. "Suppose the head of PETA was in France and planning to break into the French banking industry," she posits. "Does the French government have the right to declare war on PETA? Can they declare him an enemy combatant?" It's an almost Scalia-esque flight of hypothetical fancy, and Salmons spends a good bit of time resisting the hypo. Then Motz adds: "You may be quite right that Congress can do this. I'm just not sure they have."
Salmons' rejoinder: "In the five years since 9/11 we are talking about just one individual picked up in the United States. … We have hard evidence from his laptop and phone records. … Representatives of PETA can sleep well at night." The suggestion that the president should be granted these outrageously expansive powers because he uses them only once in five years is amazing. As is the insistence that there is "hard evidence"of al-Marri's role as a terrorist, even though some has allegedly been procured by torture and none has been tested in a court. This latter insistence prompts Motz to ask whether the appeals court would have to give similar credence to the evidence in the event that "the president had someone file an affidavit saying that PETA was connected to 9/11?"
Perhaps the most fraught moment this morning comes when Motz stops her assault on Salmons and Judge Gregory steps in to ask, politely, what the panel might do if the president plays fast and loose with the 4th Circuit. "If we decide we have no jurisdiction to hear this case, and you don't make good on your promise to put al-Marri before a CSRT [the combat status review tribunal to which all enemy combatants are entitled], how would we come back and reverse that?" he asks, doubtfully.
Salmons offers the equivalent of the Boy Scout promise that al-Marri will get his day in quasi-court. And Gregory looks like a guy who's just been asked, yet again, to trust the Bush administration to do the right thing. Because maybe the third time really is a charm.