What Should Happen to Al Qaeda Cell Members Discovered in the United States?:
I've been mulling over the Fourth Circuit's decision in Al-Marri v Wright, and I have two tentative thoughts about it. First, as a matter of policy, its reasoning can lead to results that are completely bizarre. Second, those possible results help explain why I think the U.S. Supreme Court would look at the case very differently than did the Fourth Circuit.
To see why I think the results of Al-Marri are so puzzling, consider the following hypothetical. An Al-Qaeda cell of five individuals, all citizens of Qatar, enter the United States on student visas. The cell members' plans are to detonate a "dirty bomb" in New York City, and they rent a hotel room in Jersey City, New Jersey (just across the river) to build the dirty bomb. One of the hotel employees thinks the group is suspicious, and he calls up the local police and tells an officer that there is a group of Arab men in the hotel staying in one room and acting very secretively.
The officer visits the hotel when the men are out one day and he requests that the hotel employee show him the room. The employee agrees; he opens the door with his key and shows the officer inside. They immediately see the bomb-making materials along with several photographs of Osama bin Laden and the 9/11 attacks taped to the walls. The officer contacts the FBI and the Department of Homeland Security. An hour later, the FBI has obtained a search warrant for the room and arrest warrants for the five men.
The men are arrested and charged criminally. A search of the hotel room discovers all the bomb-making materials. The room search also uncovers videotapes the men made celebrating their pending attack; the men each spent a few minutes on tape describing what attacks they will execute and hoping and praying that the streets of New York will "run red with Jewish and imperialist blood."
But there's a major problem with the criminal case: The evidence against the cell members was obtained in violation of the Fourth Amendment. Under Stoner v. Califonia, the men have a reasonable expectation of privacy in the hotel room and the hotel clerk lacks authority to consent to a law enforcement search. As a result, the evidence against the five men was obtained in violation of their Fourth Amendment rights. The evidence -- including the videotapes in which they each celebrated the attacks and confessed to their plans -- must be suppressed.
So what should the government do? It seems to me that under the Fourth Circuit's decision in Al-Marri v. Wright, the government has two choices: it can either deport the men or else must set them free. The military cannot hold them, Al-Marri teaches; they are not "enemy combatants" but rather are merely "civilians." Sure, they're Al Qaeda cell members who entered the United States to execute another 9/11, but hey, they're still civilians with Due Process rights against detention. It would be different if the men were Taliban soldiers, Al-Marri tells us; then they would be "enemy combatants." But since they're just everyday Al Qaeda cell members instead, they can't be held under that authority. Under Al-Marri, the government has to either deport the men or set them free. (There could be a possibility of detaining the men on material witness warrants, but in this hypothetical they are the only people involved in the plot.)
From a standpoint of policy, this result seems incredibly bizarre to me. Could it really be the case that the U.S. should have to deport or set free an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.? I agree that there are often legitimate issues of proving that alleged terrorists are really terrorists; if the President declares that the five men are Al Qaeda members who want to blow up a dirty bomb, we may want to see some proof. But in this hypothetical, there is no doubt that the men are terrorists: just watch the tapes the men made before being caught in which they boast of their attacks. Could it really be the case that the most the government can do in light of the Fourth Amendment violation is to deport the men to a foreign country? I find that possibility just bizarre.
My reaction is part of the reason why I think the Supreme Court would have a very different take on Al-Marri than the Fourth Circuit did. Compare Al-Marri to Hamdi v. Rumsfeld. Hamdi was an American citizen captured and believed to have been fighting with the Taliban; he was brought to the United States and detained there. He argued that his detention violated 18 U.S.C. 4001, which prohibits the detention of U.S. citizens "except pursuant to an Act of Congress." The Court disagreed, holding that Hamdi could be detained because the AUMF was the required Act of Congress. Hamdi then argued that his detention violated Due process; a plurality held that the detention was constitutional so long as Hamdi was given some process in the determination that he was an enemy combatant. It then remanded the case for the relevant proceedings.
I find it pretty unlikely that a majority of the Supreme Court would say that Hamdi can be detained (if he is given the necessary hearing) but Al-Marri has to be let go. It seems plausible to me that Hamdi and Al-Marri have equivalent rights to have their cases heard in court via the writ of habeas corpus: Hamdi because he is a U.S. citizen, and Al-Marri because he was detained in the United States. But once you get past jurisdiction, isn't the case for detaining Al-Marri a lot stronger than the case for detaining Hamdi? First, Al-Marri is a non-citizen while Hamdi is a citizen. Second, Al-Marri is at the core of what the AUMF was all about, while Hamdi was more at the periphery.
For this latter point, recall what the AUMF actually says:
That's why I think Al-Marri would be a repeat of Hamdi if it got to the Supreme Court. I imagine the Court holding that the AUMF is sufficient to detain non-citizen Al Qaeda members who entered the U.S. to execute attacks, and then moving on to what kind of Due Process hearing Al-Marri is entitled to receive to test whether he is in fact such a person. The Court would then remand for further proceedings based on whatever the Due Process standard turns out to be.
Anyway, that's my initial take; obviously it's open to revision if there's something I'm missing, which is always a possibility. Finally, I should add that there is a possible way out of the Fourth Amendment holding described above: A court could hold that members of an Al Qaeda cell who enter the U.S. to commit attacks have no Fourth Amendment rights under United States v. Verdugo-Urquidez because they lack sufficient legitimate connections with the U.S. If so, then the cell members would not be able to invoke the Fourth Amendment to challenge the illegal hotel search, and the evidence could be admitted against them.
To see why I think the results of Al-Marri are so puzzling, consider the following hypothetical. An Al-Qaeda cell of five individuals, all citizens of Qatar, enter the United States on student visas. The cell members' plans are to detonate a "dirty bomb" in New York City, and they rent a hotel room in Jersey City, New Jersey (just across the river) to build the dirty bomb. One of the hotel employees thinks the group is suspicious, and he calls up the local police and tells an officer that there is a group of Arab men in the hotel staying in one room and acting very secretively.
The officer visits the hotel when the men are out one day and he requests that the hotel employee show him the room. The employee agrees; he opens the door with his key and shows the officer inside. They immediately see the bomb-making materials along with several photographs of Osama bin Laden and the 9/11 attacks taped to the walls. The officer contacts the FBI and the Department of Homeland Security. An hour later, the FBI has obtained a search warrant for the room and arrest warrants for the five men.
The men are arrested and charged criminally. A search of the hotel room discovers all the bomb-making materials. The room search also uncovers videotapes the men made celebrating their pending attack; the men each spent a few minutes on tape describing what attacks they will execute and hoping and praying that the streets of New York will "run red with Jewish and imperialist blood."
But there's a major problem with the criminal case: The evidence against the cell members was obtained in violation of the Fourth Amendment. Under Stoner v. Califonia, the men have a reasonable expectation of privacy in the hotel room and the hotel clerk lacks authority to consent to a law enforcement search. As a result, the evidence against the five men was obtained in violation of their Fourth Amendment rights. The evidence -- including the videotapes in which they each celebrated the attacks and confessed to their plans -- must be suppressed.
So what should the government do? It seems to me that under the Fourth Circuit's decision in Al-Marri v. Wright, the government has two choices: it can either deport the men or else must set them free. The military cannot hold them, Al-Marri teaches; they are not "enemy combatants" but rather are merely "civilians." Sure, they're Al Qaeda cell members who entered the United States to execute another 9/11, but hey, they're still civilians with Due Process rights against detention. It would be different if the men were Taliban soldiers, Al-Marri tells us; then they would be "enemy combatants." But since they're just everyday Al Qaeda cell members instead, they can't be held under that authority. Under Al-Marri, the government has to either deport the men or set them free. (There could be a possibility of detaining the men on material witness warrants, but in this hypothetical they are the only people involved in the plot.)
From a standpoint of policy, this result seems incredibly bizarre to me. Could it really be the case that the U.S. should have to deport or set free an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.? I agree that there are often legitimate issues of proving that alleged terrorists are really terrorists; if the President declares that the five men are Al Qaeda members who want to blow up a dirty bomb, we may want to see some proof. But in this hypothetical, there is no doubt that the men are terrorists: just watch the tapes the men made before being caught in which they boast of their attacks. Could it really be the case that the most the government can do in light of the Fourth Amendment violation is to deport the men to a foreign country? I find that possibility just bizarre.
My reaction is part of the reason why I think the Supreme Court would have a very different take on Al-Marri than the Fourth Circuit did. Compare Al-Marri to Hamdi v. Rumsfeld. Hamdi was an American citizen captured and believed to have been fighting with the Taliban; he was brought to the United States and detained there. He argued that his detention violated 18 U.S.C. 4001, which prohibits the detention of U.S. citizens "except pursuant to an Act of Congress." The Court disagreed, holding that Hamdi could be detained because the AUMF was the required Act of Congress. Hamdi then argued that his detention violated Due process; a plurality held that the detention was constitutional so long as Hamdi was given some process in the determination that he was an enemy combatant. It then remanded the case for the relevant proceedings.
I find it pretty unlikely that a majority of the Supreme Court would say that Hamdi can be detained (if he is given the necessary hearing) but Al-Marri has to be let go. It seems plausible to me that Hamdi and Al-Marri have equivalent rights to have their cases heard in court via the writ of habeas corpus: Hamdi because he is a U.S. citizen, and Al-Marri because he was detained in the United States. But once you get past jurisdiction, isn't the case for detaining Al-Marri a lot stronger than the case for detaining Hamdi? First, Al-Marri is a non-citizen while Hamdi is a citizen. Second, Al-Marri is at the core of what the AUMF was all about, while Hamdi was more at the periphery.
For this latter point, recall what the AUMF actually says:
The 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.Isn't that pretty clearly directed at a member of an Al-Qaeda cell who entered the U.S. on September 10, 2001 to commit attacks -- much more directly than a United States citizen who was fighting against the Northern Alliance? That's part of the reason why i think the Supreme Court would look at this case differently than the Fourth Circuit; I suspect they would see a case like Al-Marri as being a core AUMF case, much more so than Hamdi. An alien Al Qaeda cell member who entered the U.S. to execute attacks is exactly the kind of person that Congress was trying stop with the AUMF; the case that he's an "enemy combatant" is stronger than the case for Hamdi. If anyone is an "enemy combatant," it's Al-Marri (assuming the allegations against him are true).
That's why I think Al-Marri would be a repeat of Hamdi if it got to the Supreme Court. I imagine the Court holding that the AUMF is sufficient to detain non-citizen Al Qaeda members who entered the U.S. to execute attacks, and then moving on to what kind of Due Process hearing Al-Marri is entitled to receive to test whether he is in fact such a person. The Court would then remand for further proceedings based on whatever the Due Process standard turns out to be.
Anyway, that's my initial take; obviously it's open to revision if there's something I'm missing, which is always a possibility. Finally, I should add that there is a possible way out of the Fourth Amendment holding described above: A court could hold that members of an Al Qaeda cell who enter the U.S. to commit attacks have no Fourth Amendment rights under United States v. Verdugo-Urquidez because they lack sufficient legitimate connections with the U.S. If so, then the cell members would not be able to invoke the Fourth Amendment to challenge the illegal hotel search, and the evidence could be admitted against them.
Related Posts (on one page):
- Fourth Circuit Grants Petition for Rehearing in Al-Marri:
- Federalist Society Online Debate on the Al-Marri Decision:
- Thoughts on the Continuum Between War and Crime:
- What Should Happen to Al Qaeda Cell Members Discovered in the United States?:
- Fourth Circuit Rules That Suspected Terrorist Cannot Be Seized and Detained in U.S. WIthout Being Charged With Crime in Court:
Assuming that is true, if this guy entered under false pretenses, would that not mean he is here legally? Could the government then just prove that he is not legally here and then classify him as an enemy combatant?
Just a thought...
I would find it hilarious (in a tragic sense) if an originalist trashed the Magna Carta/habeas corpus to save Mapp v. Ohio.
And exactly where do they demonstrate that said person is in fact a member of an al Qaeda cell? Or is it just a matter of the President signs a form and they disappear forever?
Alternatively, we could move to a more sensible regime in which we eliminated the exclusionary rule but imposed harsh penalties on police officers or departments who violate the Constitution, enforced by some sort of independent agency.
None of this is to quarrel with Prof. Kerr's instincts about the Supreme Court's likely take on the matter.
Additionally, I think assuming the clear guilt of the suspects brackets a ridiculously salient issue. Of course if we assume guilt, the fourth amendment doesn't really stand up. No due process guarantees do--if only the guilty are prosecuted all they do is help the guilty escape their just punishment. But not everyone who is prosecuted is in fact guilty and that is why we safeguard civil liberties. To assume guilt is to dodge the meat of the issue.
I believe you're missing the point. We can assume that under Hamdi, the men still get due process to determine if they are indeed members of an Al Qaeda cell. In the hypothetical, though, this is easy: the men have recorded videotapes of themselves, on their own, celebrating and describing the attacks.
What if all the people had been US citizens? Same bizzare result indeed. The solution - the FBI agent shouldn't be in that room without a warrant. Similarly, the government shouldn't have arrested Al-Marri without sufficient evidence to try him in a civil court and then deport him.
But members of an Al Qaeda cell aren't garden variety criminals; I don't think it works to just switch the category. If you wanted to make the opposite point, you could just switch the point of comparison; you could compare the rights of an Al Qaeda cell to the rights of a traditional prisoner of war, right?
I think this is wrong. Under Al-Marri, the government can designate them as "unlawful alien enemy combatants", but it must do so. It can't just hold them indefinitely without any hearing at all.
For the rest, I don't see how your scenario differs from any other instance of the exclusionary rule except that the fact pattern is more sensational.
Consider and even more "unjust" scenario. A sleeper cell enter the country and rents and apartment to plan a terrorist attack. A neighbor who is fluent in Arabic hears them talking about a plot, contacts the FBI who get a warrant. Upon serving the warrant, the terrorists destroy all their plans and are taken into custody. All of them refuse to make any statements.
Since the OP takes such a dim view of the 4A, am I to suppose he would throw out the 5A and 6A here and just imprison them without evidence? "Enhanced interrogation"? Deport them to Syria or Egypt and let them work 'em over?
In a country of laws, we have to live with the fact that sometime guilty people go free because there isn't enough admissible evidence to convict them beyond a reasonable doubt. That is the price we pay for some assurance against governmental excess. The founders would gladly allow that ten guilty men go free in order to prevent a single innocent from going to jail - we would do well to revive that spirit.
I look at this ruling a bit differently than you. About 180 degrees different. I look at this ruling as an indication that The Law is officially Still Breathing in the U.S.
I don't have time to address your comments/arguments in detail, but it seems to me that you go to somewhat extraordinary hypotheticals to find fault with where you think the ruling *could* lead.
In your hypothetical:
1) Why can't the police go to the room when the men are actually there?
2) Why can't the police contact the federal authorities to see whether the men have any criminal records, or to see if the federal authorities have any interest in following the men?
3) Can a FISA warrant be obtained? (My understanding is that something like 99+% of FISA warrant applications have been approved.)
Best wishes,
Mark
P.S. I notice you write, "To see why I think the results of Al-Marri are so puzzling, consider the following hypothetical. An Al-Qaeda cell of five individuals, all citizens of Qatar, enter the United States on student visas."
It's interesting that you don't use the word "alleged" in front of the "Al-Qaeda cell." It's a lot easier when one knows the answers in advance. I guess if I thought the Bush Administration was infallible, I'd be a lot more content with their legal approaches. (Or illegal, as the case may be.)
[OK Comments: Mark, your missing the fact that the government has no probable cause to get a warrant until they break and see the bomb-making material. And the men have no criminal records; they've never been to the U.S. to start collecting them. Granted, the police could go when the men are there instead; but the men could simply refuse to speak with the officer and refuse to let him in. And as I have stated repeatedly, both in the post and the comment thread, I fully recognize the question of proof; my point is precesely that this is the real question rather than whether it's possible for an Al Qaeda terrorist to be an "enemy combatant" in the first place.]
The serial killers and child rapists are not set free, though, or at least need not be. The Supreme Court has upheld the constitutionality of involuntary civil confinement laws if someone poses a continuing dangers to others. Kansas v. Hendricks, 521 U.S. 246 (1997).
2. There is a long line of cases, from Quirin to Hamdi, that a U.S. citizen who is a member of the enemy's forces is an enemy combatant subject to military law. The issue is only about the definition of membership in the enemy's forces and who decides whether it exists. I believe the 4th Circuit's definition is far narrower than the Supreme Court's and also unreasonable -- it provides a technical, legalistic definition of what it means to be part of an enemy milirary which is dependent on organizational formalities rather than a practical definition. I believe under current Supreme Court precedent, the hypothetical terrorist cell could be easily determined to be enemy combatants and treated accordingly. Under Quirin they would get a single federal judicial hearing (a habeas hearing) to determine whether they were enemy combantants -- and that is all they would get.
Oren, you have rather remarkable faith in the power of fingerprinting and the competence of the U.S. Border Patrol. What about the guy who sneaks in across the border from Mexico?
Second, they could have gotten a warrant. In fact, you said they did. The fact that the FBI search warrant based based, in part, on unlawfully obtained information is not fatal, as I recall the caselaw holding. Second, the testimony of a housekeeping staff member at the hotel could have provided testimony of the pictures/posters on the walls, materials in the room, etc.
That being said, it's worth 100,000 dead children to preserve the Fourth Amendment and not live in a complete and total police state where all searches are per se reasonable based on fears of terrorism. In fact, it's worth more than 100,000 dead children.
[OK Comments: BruceM, I'm not sure where you are getting your interpretation of the Fourth Amendment, but it seems pretty different to me. Plus, I assume that Al Qaeda cell members post "Do Not Disturb" signs on the doors; the cleaning staff won't have entered.]
id like to know the following:
if hamdi denies habeus to american citizens b.c they can be combatants (as long as they get a neutral hearing)...AND
the SCOTUS eventually rules in this case that being a resident doest necessarily make you a non combatant and you can be held without habeus
than wouldnt that also mean that the COMBINATION of those two things...being a citizen and captured in the us..doesnt get you habeus either..so long as the charge is terorism and a determination is pending to se whether your an enemy combatant? do you see this as an acceptable extension?..so you see this as acceptable policy?
(these are real questions..not rhetorical)
2.
..in the situation you blog about here...
well..i assume it cant be aruged that a combination of the probably cause and exigent circumstances in the case you describe couldnt be used to justify the warrentless search (since..b.c of the decison you quote..its not a consent case)
IF not..cant people be deported if they are citizens of quarter..regardless of whether there is a good reason? cant they be deported even if there wouldnt be evidence to convict them in a court of law of a crime
and what about fisa warrents...isnt this cop an idiot for not getting a fisa warrent?
Out of curiosity, do you think the same result would have occurred in Padilla if the court had gotten that case? If so, why do you think the administration was so eager to keep the Padilla case from being reviewed?
As an aside, I think your prognosticated scenario is close to what happened in the Al-Marri case already -- before the MCA was passed -- at least in the view of the government and district court. The court lower and a magistrate judge devised a habeas process they believed to be modeled on the Hamdi guidelines, and denied relief. This case is an appeal of that result.
Essentially, after agreeing with the majority that the MCA did not strip jurisdiction as the government claimed in its threshold argument, the Judge Hudson's Fourth Circuit dissent affirmed that result. Presumably, if the Supreme Court agreed with that argument, it could affirm it as-is, or provide additional guidance for a do-over on remand.
As I understand it part of the trouble in Hamdan was that he was never established as an unlawful enemy combatant, and therefore ran into Geneva Convention conflicts. The scenario above makes it pretty certain that whatever court or tribunal wrestled away the jurisdiction would be certain to find the terrorists to be unlawful, and hence the Geneva argument may not come into play- and even where it might it would be in direct tension with Article II via Quirin.
Exactly. That can even extend as far as getting a Constitutional Amendment to change the Fourth Amendment to address any necessary change.
The position of the Bush Administration seems to be, "The laws as written (e.g., the Constitution) don't seem to work right in this Brave New World...so let's ignore them."
"America is free. After all, 100,000 dead children can't be wrong."
I am amazed that some folks who can't leap to the hypothetical here are perfectly willing to leap tp the hypothetical that the detention of a terrorist gang means that facism and martial law are right around the corner.
The constitution is not a suicide pact. Lincoln recognized this. FDR recognized this. Why can't you?
BruceM,
I don't understand your question. Is your point that the government shouldn't violate the Fourth Amendment, and therefore we shouldn't have to consider hypotheticals in which they do? It would be nice if this were the case, but I don't think we have that luxury.
Oh, and I responded to one of your comments and one of Mark Bahner's above (at the end of the comments themselves, in italics.)
Would you give up your right to drive over 5 miles per hour to save a child? 10 children? Guess what, you have. We could make the speed limit 5mph everwhere and many children per year would be saved. But we don't. We've decided that driving 55 is worth, say, 7,000 dead children per year that could be saved by driving 5mph everywhere.
The same applies to the Fourth Amendment. Get rid of the 4th Amendment and allow general warrants based on hunches and you'll save many children from criminals each year. You'll probably find 100 children in sex-caves in the basements of the homes of pedophile rapists. But it's worth the lives of those children to not live in a police state.
A suicide pact means all parties to the suicide pact die. The constitution, more specifically the Bill of Rights, does in fact mean people are going to die that, in the absence of the rights provided therein would otherwise likely not die. But the founders deemed it worth the lives of those people (today we only care about children, not people in general) to have those rights. How many dead children per year is are caused by the right to bear arms? Lots, but it's worth it. How many dead children are caused each year by the right to due process? Hundreds of thousands. It's worth it.
Whenever you exercise a right, it is done in the face of lots of dead cute precious white children with blond hair and blue eyes. So value your rights, and don't throw them away so quickly to save a child. We can make more children. Once you give away a right you don't get it back. Chilren are renewable, rights and liberties are not.
yeah..the constitution isn't a suicide pact...thats true...
the problem is that in combination with HAMDI...
in combination..this means it doesn't matter if your in the us and it doesn't matter if your a citizen...so that essentially menas..nothing matters...you got no habeus if your accused of terror.
do you know..the AP has reported that the total number of citizens held as a result of this has been...wait for it...3!...thats right..3...so what is it thats so pressing about a ruling like hamdi...that a citizen be stripped of habeus?
i can understand not letting of foreigners have it..and its also makes sense policy wise since terrorist are for the most part..not us citizens...
so i really wouldn't have a problem with a reversal here if wouldn't be applied with the dangerous (and politically unnecessary hamdi)
But you are treating the executive branch as if its some sort of monolithic entity commanded by a single will. Thats obviously nonsense. In the scenario outlined, it was a local police that violated the 4th amendment rights. To paraphrase Scalia, are we really going to set a group of absolutely certain terrorists on a sabatage mission go free because one beat cop made a mistake? Should we return their explosives with our apologies as well?
In fact, if you change the hypothetical to White Supremacists or other native terrorists, the options are even worse, because deportation is not available.
I say, protect the rule of law and retain the notion of limited government by ruling that the government must deport them or set them free. And then have someone kill them off the books. Everyone wins!
What if the President decided he would just start shipping off his political enemies to gitmo and declare them enemy combatants. I find that result much more bizarre. But you seem to think that would be okay.
[OK Comments: Erasmus, as to your first paragraph, I already responded twice. As to your second comment, you're just missing the point. If you read my post, you'll notice that my view is that Al-Marri is like Hamdi: there should be a Due Process hearing as to whether in fact Al-Marri a terrorist cell member. The Fourth Circuit took a very different view: It's view is that even if Al Marri was proud and boastful of the fact that he is a terrorist, he *still* couldn't be held as an "enemy combatant" because Al Qaeda terrorists just aren't enemy combatants. Now, I realize that the "you want the president to be able to pick his political enemies and ship them off to gitmo" accusation is a fun one to make. However, it's rather bizarrely out of place here.]
The problem is is there is no defined enemy. Terror is a method, not a state or a force. So if you arbitrarily call someone a terrorist (is an abortion clinic bomber a "terrorist" who can be declared an enemy combatant?).
Where does it end? Who decides who is a terrorists. And Orrin's little hypo is for a dirty bomb, which will not kill many people (although it may have quite a serious economic impact).
I didn't see the hypothetical suggest that the police randomly burst into rooms and check under the bed for minute incriminating evidence. A person saw someone acting suspiciously, and the police found overwhelming evidence of this upon entry. I am amazed you have a problem with this. But I guess it's easy to risk "100,000 dead children" when they aren't your children. Or even you. I mean, hey - you're renewable too(just an egg and sperm). Therefore, no one should care what happens to anyone, should they?
Am I getting extreme? Yes, but so is your absurd example. By your reasoning, there are Nazi stormtroopers around every corner just itching to take away your rights on the flimsiest of excuses.
Anyway, why is a hypothetical bad policy result supposed to carry the day when an actual bad policy result often doesn't? I know for a fact that Boumedienne harmed realpeople, not just imaginary ones...
I can see the argument that, if al Marri really is a terrorist, the AUMF had nasty people like him in mind more than people like Hamdi. But there's nothing absurd or illogical about the idea that Congress did not think it was authorizing, oh, smart bombs being dropped or predator drones being launched in Dearborn to blow up the homes of Al Qaeda suspects. Nothing illogical about the courts not wanting to create an administrative detention system that allows the administration to hold people it accuses of being enemies of the United States on far less evidence than would suffice for a criminal conviction, &replacing the explicit criminal protections of the Bill of Rights with the Matthews test for the duration of a war that won't end. The CSRTs, while they haven't been subjected to review under the due process clause &I'm sure they'd fail, don't exactly make than an appealing proposition.
And if the Government can detain people if they are going to be continuing threats in a civil proceeding, why couldn’t the Government do the same in your hypothetical?
[OK Comments: Erasmus, I can't tell which side you're arguing: Is your view that the government should be able to detain cell members who can't be charged criminally or that it shouldn't?
As to the Timothy McVeigh issue, clearly we are operating along a spectrum from a classic war set of facts to a classic criminal law set of facts. Different places along the spectrum fit more or less in one or the other category. It seems to me that Al Marri is close enough to the war side the spectrum (if the allegations are true) that setting him free under the criminal law model is bizarre. Timothy McVeigh seems closer to the crimial law side of the spectrum because he was not connected to any foreign group and he was a United States citizen. But as I pointed out above, merely pointing out that other places on the spectrum exist doesn't seem to prove a particular point. So you raise McVeigh. Someone on the other side raises the Nazi saboteurs in Quirin, etc. They're all just points along a spectrum; dividing lines are hard, but that doesn't mean none exist.]
A dirty bomb is not likely to be much more deadly than any other kind of bomb. It creates greater levels of fear. It is not a nuclear bomb.
I can't believe I need to say this, but a nuclear bomb is not something that can easily be assembled in a hotel room.
In general, this hypothetical is a little wacky. These guys get enough radioactive material to make some kind of crazy scary bomb and we find out about it once they're in the hotel putting it together like they're assembling Ikea furniture? Who are their contacts? Where do they get the material?
I mean, if someone can arrange to pick up nuclear materials in the US without detection and can actually make a working nuclear bomb, you're talking about super-terrorists. (Consider that no terrorist, as far as we know, has as yet got hold of a loose nuke, a warhead, or sufficient radioactive material to make a bomb, and yet it has been the plot of endless movies since the early James Bond days. Presumably they have tried, and no one has done it yet.) The idea that they'd let themselves in for the risk of getting caught in a hotel in the final stages of assembling the weapon is sufficiently bizarre that it's just not a circumstance we need to worry about. It's just not going to happen. And again, who are these nuclear super-terrorists who can actually do this? It's like worrying about someone doing unlicensed brain surgery in the hotel, only a lot less likely.
If we're talking about people assembling a dirty bomb -- well, sure that's scary, but it's like assembling any other kind of bomb, and it's unlikely to do more damage or cost more lives than any other kind of bomb, so the nuclear issue is just a distraction.
I don't know about the 4th amendment issue. I think the 4th amendment is generally a good idea, and I like the sound of applying it even in these crazy cases. Perhaps it will help someone to greater clarity to understand that this hypothetical can be read two ways, one of which is basically impossible, and one of which is not nearly as scary as it sounds.
That argument just ignores the giant elephant in the room- this isnt arbitrary- FORIEGN individuals come to this nation to attack targets for political objectives. That is the definition of enemy! Think about this, why would any declared enemy nation ever again send sabateurs attached to their militaries when they can simply send civilians knowing they will be treated here as common criminals. Should the nazis in Quirin been tried as such?
This delineation is maddening- taken to its (il)logical extreme, how can an individual on am actual battlefield be determined to be an enemy before you put a bullet in him (or vice versa). Does some grunt with a rifle get to arbitrarily decide who an enemy soldier is just because he happens to be a foriegner wearing an enemy uniform and pointing a weapon at him? This is ridiculous.
The problem was that he the man was imprisoned in 2001 and the suicide bombing took place in 2003. The court apparently accepted a habeus claim that involved time travel. But, even worse than that, it turns out that the man who was the known associate who comitted a suicide bombing turned out to be alive and well and living in Germany with his family with no known connections to any bombing in the first place.
That's the sort of kafkaesque nonsense we risk having applied to any citizen or non-citizen in the world. That's the extreme that we risk endorsing as a policy not only for our nation, but for any nation (since we claim to set the bar) acting against the citizen of any nation.
What we do to random people we purchased in Pakistan is no different than what China can do to folks vacationing in the Philipines.
do you think that a reversal here and hamdi can or should be combined to treat all terrosit proceedings...regardless of citizenship of defendant or place of arrest...like hamdi...no marrter what...
you say that THIS case should be treated that way..and i understand that..can you give a doctrinal reason why hamdi and a resersal ehre would not be construed to essentially make all terrist cases like hamdi?
In any event, forget Lecter; as others have noted, the "bizarre" result of dangerous criminals going free is a possibility in any Fourth Amendment case. If the AUMF somehow provides a way around that, that indicates an easy way to circumvent the Fourth Amendment (and the Fifth, and the Sixth): Congress could authorize the use of military force against, say, drug dealers. Would that allow the detention of Pablo Escobar (a citizen of Colombia visiting the U.S.) indefinitely, without criminal charges, counsel, or a right to a jury trial?
Exactly. In fact, why can't the local police call the FBI who can call the INS, and have an FBI and INS agent at the door of the men's hotel room in 24 hours?
Hypothetical conversation:
FBI agent: "Hi, I'm with the FBI, and my friend here is from the INS. My friend with the INS is wonder how y'all studies are going? How 'bout that Calculus class you're attending with Professor Snodgrass...that's a bear, huh/"
(Alleged) terrorist: "No. Can't talk now. Must...ummmmm...study."
INS agent: "Well, I know some tutors, and I could have one here in an hour or two to help y'all out. We love our Qatarian friends. And we're ever so helpful to people with student visas."
(Alleged) terrorist: "No! Go away or..."
FBI agent: "You'll do what? Well, that sounds like you just threatened me. I'm afraid I'm going to have to see whether you have anything dangerous in your hotel room..."
Sorry, I had read those posts, but I guess I was hoping you could come up with more than stating that al-Qaeda are not garden variety criminals. That doesn't really explain why it's "bizarre" to think that the government might have to release or deport foreign non-garden variety criminals, when it appears that the government would have to release domestic criminals of the same variety.
Besides, I would imagine that on the whole, garden variety criminals are more of a threat to the people in this country than al Qaeda is, yet I believe it is accepted that these criminals are still entitled to due process.
And yes, I know, this approach takes all of the fun out of debating the legal ramifications surrounding the 4th amendment and the GWoT.
War is not peace. Those who do not understand the difference by now never will.
No, enemies of the United States are limited to those who are serving governments with which the United States is at war. The rest are just criminals.
[OK Comments: That's incorrect, Justin, as I have explained several times already. The issue here is statutory; I'm arguing that the correct application of the Hamdi precedent is that an Al Qaeda terrorist in the United States to launch an attack is an "enemy combatant" who can be detained under the AUMF. I'm then arguing that the courts should then apply the Due Process clause, determine what rights are owed to Al Marri under Hamdi, and then give him that hearing. The key point here is that under the Fourth Circuit's approach, we never ever get to the Due Process constitutional issue; Al Marri can't be detained by the military no matter how much process he is given. My view is that we have to apply the Constitution, not that we have to ignore it.]
Or put it another way - its pretty clear that if the DTA was never amended by the MCA, that Al-Marri wins. In your hypothetical world with you hypothetical problem PLUS the fact that the MCA was never passed, are you quite alright with letting these people go? If not, then your problem isn't with the Fourth Circuit in Al-Marri, but with the constitution itself.
"As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced. Thus, in various circumstances, the Court has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process."
480 U.S. 340, 347 (1987). See also Pa. Bd. of Prob. &Parole v. Scott, 524 U.S. 357, 363 (1998) ("[B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its 'substantial social costs.'").
When we weigh the costs of applying the exclusionary rule in the original hypothetical, we likely conclude the costs are too high. So we don't.
We are not at war. The United States has not been at war (per the U.S. Constitution) since WWII.
"The standard employed by the district court to determine al-
Marri’s qualifications for enemy combatant status was analogous to
that invoked by the United States Supreme Court in Ex Parte Quirin,
317 U.S. 1, 63 S. Ct. 2 (1942). In Quirin, the Court explained,
[E]ntry upon our territory in time of war by enemy
belligerents, including those acting under the direction
of the armed forces of the enemy for the purpose of
destroying property used or useful in prosecuting the
war, is a hostile and war-like act. . . .
. . . .
. . . Citizens 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 within the meaning of . . .
the law of war. . . .
Id. at 36–38. The Quirin Court further provided that “[i]t is
without significance that petitioners were not alleged to have
borne conventional weapons or that their proposed hostile acts did
not necessarily contemplate collision with the Armed Forces of the
United States.” Id. at 37. “Nor are petitioners any the less
belligerents if, as they argue, they have not actually committed or
attempted to commit any act of depredation or entered the theatre
or zone of active military operations.” Id. at 38. "
I must say this seems pretty persuasive. The key is whether the party has "associated" himself with the "military" arm of the foreign government, etc. I assume we can take Al Qaeda as the foreign "government" for these purposes, and therefore the question is simply whether the party associated himself with Al Qaeda for the purpose of coming here to do the requisite harm. That's a factual question that was dealt with in the district court and should conclude the issue. And, of course, this alliance with the foreign military is what distinguishes this case from all the serial killer examples and the like in the comments above.
Given your hypothetical and its plausibility, I agree that the Supreme Court may look at this case differently.
But is your argument that, because of this policy concern, the Court would construe the statute differently than it might otherwise?
Or is it that the 4th Circuit got the statute wrong as a matter of interpretation and that the policy implications will make the Supreme Court think this case is important enough to grant cert and correct the mistake?
I had a client once who swore up and down that the income tax was federally unconstitutional.
Is there really an argument that heart disease, cancer, or car accidents are a greater threat to an American citizen than a member of an Al Qaeda cell...
Am I missing something? Isn't that the point? The threat is greatly exaggerated in an effort to expand the power of the executive.
Your hypothetical is, I suppose, plausible, but it's not very likely, there are ways around it--detaining after deportation, believe me we could manage--and again, why do you seem so uninterested in the REAL facts about how the Bush administration seems to use powers to detain people w/o charge?
I had a client once who swore up and down that the income tax was federally unconstitutional.
Yes, and he was wrong, and I'm right. There has been no Congressional declaration of war. Therefore, per the U.S. Constitution, we are not at war.
The Constitution isn't a complicated document.
I'm reminded of the old joke in which the rich guy goes up to the pretty young thing and asks her if she'll go to bed with him for one million dollars. She giggles and says she would. He then asks, "Well, how about ten buck?" She slaps his face, "Just what do you think I am?"
"My dear, we've already established what you are. Now we are just negotiating price."
You're just negotiating how high of a price you'll put on your principles.
Orin, as long as the fruit of an unlawful search does not form the basis of a search warrant, there is no problem. If the FBI are informed about these people based on info from an unlawful search and rather than go out and arrest them based on that improperly-received information, the FBI begins their own investigation of these people, gathering their own information and ultimately probable cause over the course of a few weeks or months, it would not be a problem if they later applied for their own warrant based on the probable cause they themselves obtained. The taint does not go all the way back to the initial unlawful search. They got their own independent probable cause. For the life of me I know i've read a billion drug cases where the motion to suppress was denied on this very basis. If you want I'm sure I could hop on westlaw and find one, but I'd rather relax and watch some TV and read some blogs right now.
The first argument is your hotel sleeper-cell example -- and your understandable impulse is that it would be nuts if, after the evidence is excluded, the only choices were deportation or release. For many of the same reasons your previous commenters have given, however, I don't think this hypo proves very much, other than the costs of the exclusionary rule.
The court's ruling today in al-Masri is, at bottom, driven not so much by actual legislative intent, but by a strong due process gloss -- Judge Motz assumes that to permit the military detention here would raise serious due process concerns because of Milligan, and thus she construes the AUMF not to trigger that problem. So where does that leave your hypo?
Well, to test it, let's assume the same exact hypo, except the five guys are not agents of Al Qaeda; they are, instead, "merely" Al Qaeda sympathizers -- copycats, perhaps. (Or, if you wish, make it a five-person Tim McVeigh cell in the days before the Oklahoma City bombing.) Let's also assume that they are citizens, for two reasons -- (i) it might take deportation off the table as an option; and (ii) it will eliminate any argument that the Due Process Clause doesn't apply. (If your argument is that the Due Process Clause should not apply with full force to aliens who have set up roots here on student visas, that's a distinctly different sort of argument -- but not even DOJ has argued that the DPC doesn't apply with full force to al-Marri.)
OK, there's a Fourth Amendment screw-up, as in your hypo, and the exact same cell can't be prosecuted. What do you do? If they are citizens, even deportation might not be an option. Crazy, no? But that is, basically, Milligan itself. And the holding of that case is that Milligan could not be held indefinitely in military custody -- even if Congress had authorized it (e.g., with a statute that covered Confederate accomplices such as Milligan, as well as Confederate soldiers and agents).
The simple point is that very bad people do on occasion slip through the criminal justice cracks -- and for the most part, the U.S. cannot do anything directly about it, other than watch them very closely, without violating due process. You are correct that the Court has recently carved out discrete areas of permissible preventive detention. But that doctrine surely does not apply to any and all people who are thought to present a serious risk of serious crime. Assuming you agree that detention would be unconstitutional in my hypo, why should association with Al Qaeda change the constitutional result so fundamentally?
Two other reasons why your hypo should not drive how the al-Marri case is decided: First, it's not remotely as clear as in your hypo that al-Marri was planning to commit such violent acts. The Rapp declaration stated that his computer had a bunch of info about hydrogen cyanide -- but I'm not aware of any other evidence that al-Marri presented a serious threat of using cyanide. The principal allegations against him were that he was planning substantial computer hacking. Do you think that anytime we have strong evidence that someone was planning damaging hacking, but we couldn't convict for whatever reason, that we should be able to preventively detain the person indefinitely?
Second, and most importantly (here's the theme of my blogpost again), al-Marri wasn't going free. He was about to go to trial. From all the appears, the reason he was transferred to military custody from the criminal system was that he wouldn't cooperate: The Pentagon therefore wanted to be able to engage in abusive interrogation (severe sensory deprivation; etc.) in order to squeeze information from him, and thought they could only do so if they took away al-Marri's lawyer and family, and made him think he was in a legal black hole. So change your hypo a bit -- the search is lawful, and the guys will likely be convicted; but they won't cooperate, and we want to put the screws to them. Is indefinite military detention permissible (constitutional) for that purpose?
Your second argument, as I understand it, is the Hamdi contrast. Surely, you reason, Congress would be more interested in making sure that al-Masri is detained than that Hamdi would be. After all, al-Masri is working for the really bad guys, Al Qaeda -- the ones directly responsible for 9/11 -- and he's here in the States threatening real harm against civilians, not tens of thousands of miles away in Afghanistan. If Hamdi's detention is permissible, the arugment runs, then a fortiori al-Masri's must be, too.
To me, this is a much more substantial argument. It's part of the puzzle here. But ask yourself this: Isn't the same exact distinction true as between Hamdi and Padilla? Congress would, on your view, plainly be much more concerned with detaining the latter. And yet, if the Court had reached the merits on Padilla, Breyer would have come out the other way; perhaps AMK and/or SOC, too. With Scalia, that would have been at least five and as many as seven votes for treating Padilla more favorably -- even though he's not the one who was surrendering his rifle half-way around the world, but instead the one allegedly plotting terrorist plots against civilians in the midwestern U.S.
Judge Motz makes similar distinctions here. Hers is based on association with the Taliban. Perhaps Padilla's would have been based on the fact that he was picked up here in the States. The courts are more reluctant to ok detention of Al Qaeda than of the Taliban, and of bad guys far from America than folks picked up right here in our backyard.
Why is that? Isn't it counterintuitive, especially if the question is legislative intent?
But there's a really understandable impulse behind it. Two parts to the reasoning: First, one reason we permit Hamdi to be indefinitely detained is because he can't be tried for crimes -- he didn't commit any! The theory of military detention is to be able to detain combatants until the end of hostilities even though they have done nothing but what is legal, i.e., fight against us. The trade-of for their immunity from domestic criminal culpability for their acts of killing is that they can be detained (and even shot on sight). (This doesn't explain Haupt, in Quirin. That's the hardest case to distinguish. No room or time now, though.)
Second, if military detention of U.S. citizens and residents is limited to folks detained overseas, or is limited to those fighting for a state army rather than for an incohate organization, it doesn't risk remotely the sort of authoritarian logic that Motz is so worried about. There's simply much more of a worry about massive suppression of doemstic liberties if the President can begin detaining citizens here in the U.S. who are suspected of being in cahoots with some group with which the U.S. is in conflict. Limiting the detention power to the Hamdis of the world -- to those detained on a traditional foreign battlefield and/or those associated with a state army -- is a much more discrete and cabined power. Not as much risk of fairly arbitrary dragnets here in the U.S. And much more likely to have been intended by Congress, too. Judge Motz tries to touch on some of these issues in the important note 15 of her opinion.
... or millions of people will die. Sheesh. No problem. Government only has to be 100% correct 100% of the time.
It is simply amazing that people here think that America will remain in the present state it currently exists in, with the same Constitution, after a nuclear attack on American soil.
I won't address the psychopathic disregard for humanity's most vulnerable, but I will clue you in on something else: If 10 million people die in a nuclear attack because the 4th Amendment got in the way, the 4th Amendment will be history. Heck, we'll be lucky if it's the only one that isn't re-written or thrown aside. I'm telling you now, that not one of you standing up for abstract rights in the face of 10 million dead will have a voice in that scenario. You will either be overrun by a mob, or shouted out by the democratic majority who is tired of their lives being sacrificed by lawyers who seem to always side with terrorists in protecting "rights."
This is why we leave fighting wars to the military, and lawyers get to do pro bono.
But I do have one question to those who are laboring under the misimpression that we're at war with "terrorisim", per the U.S. constitution.
When will the war end? When G.W. Bush leaves office? When Hillary leaves? When Chelsea leaves? When? What event or events would ever end that "war?"
You're thinking of the inevitable discovery exception, which allows the government to argue that but for the unlawful act -- that is, if the government never knew what it learned thanks to the unlawful act -- the government still would have discovered the evidence. But there's no sign of that here. Inevitable discovery requires proof that the government actually would have discovered the evidence if they hadn't violated the Fourth Amendment; your hypothetical in which they might have, who knows, isn't enough. In the hypo, the evidence is clearly fruits of the poisonous tree.
But to give Orin some credit, I think there is a serious issue here, even if he raised it in an unfortunate fashion. I would agree that neither the war paradigm nor the criminal paradigm are a good fit with members of terrorist groups. And I personally think it would be fine for Congress to start developing a serious legal framework to deal with this issue, perhaps modeled on the civil commitment framework (eg, we could require both an initial judicial hearing and periodic rehearings). Indeed, one reason to do this is to shelter the conventional criminal system from the distortions that might be introduced by bad cases. And I also think it is a good check to make sure we would be just as happy with this system as applied to US citizens accused of domestic terrorists.
But we should be doing this in a way that embraces review by Article III courts, including constitutional reviw, not in a way that avoids such review. That I believe is the essence of both Milligan and al-Marri: we can tailor substantive and procedural law to the problems which face us, but as long as the courts are open, we should do that within the existing judicial structure.
That is a thoughtful and interesteing comment; unfortunately I gotta go to bed, so I'll have to respond tomorrow.
Should the government have thrown all rules of law out the window in order to protect us from them? At what point must we stop using legal principals to protect the nation? And, at what point does this risk harm to our system?
And no, I am not liberal, however there comes a point where one needs to draw the line, I think this is it, but I guess I could be wrong.
No, I don't believe that any single drug dealer or credit card scammer is a greater threat to the US than an al Qaeda cell. That was basically a throw-away argument (though if you add up all of the harm caused by respecting the Fourth Amendment and enforcing due process, you could probably come up with several 9-11s worth of death and destruction).
Regarding your pointing out that these cases fall along a spectrum, and that the domestic terrorist example can be countered with the Quirin example, I see where you're coming from, but I am still not persuaded. Regarding Quirin, that was a real war - nation versus nation over who would control territory, possess resources, and rule people. Al Qaeda is a conspiracy to murder. And unless they get hold of actual nukes, al Qaeda is not really much of a threat to our nation as a nation. Yes, 9-11 was horrible, but that was basically one months' worth of highway deaths.
More importantly, I think where you fall on the spectrum depends on what threat you see as more plausible. History has given us many examples of authoritarian regimes taking root because people were cowed by overhyped threats to a nation's security or stability. History has also given numerous examples of countries where the executive has the power to imprison at will, and it usually doesn't turn out well -- my father had to wait for a moonless night so he could escape across the border of one a country where such country.
History has not, however, given us many examples of civilians detonating smuggled nuclear weapons, or indeed of stateless murderers (scruffy sociopaths) who are actually able to inflict enough damage to substantively affect a country's actual daily living. So in considering situations like al-Marri, Padilla, or your hypothetical, I tend to be more cognizant of the dangers of authoritarianism than the dangers of terrorism.
I fear the next terrorist attack, but not because I think it will kill me or my kids. Rather, I fear that the reaction to such an attack will give even more impetus toward expanding the power of the government at the expense of our civil liberties. Unless al Qaeda actually gets nukes, our nation as a nation has more to fear from the reaction to terrorism than from terrorism itself.
No. If that's what you're arguing, you are wrong. You're arguing the way you hoped Hamdi would come out, not the way that Hamdi came out. That view of Hamdi got ONE vote - Justice Thomas - and that's an embarrassing vote, at that.
From Hamdi's plurality - I just don't know how many times this can be repeated, and ignored:
Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government’s authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court’s repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.[FN1]
Footnote 1: Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.
....
Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. . . . Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U.S. territory) cannot be detained outside the criminal process.
....
On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.
What you aren't accepting is that labeling something "terrorism" is not a magical cure for getting around the Constitution. There's a difference between being an actual enemy combatant - ie, fighting in a military capacity against the United States - and committing a crime. And Hamdi specfically makes that distinction, and you disagree with it, which is okay (sort of), but so you ignore it, which is not okay, and then you attack your commenters for pointing out what you did, and that is just rude.
You're getting irritated at people who read Hamdi and don't accept "battlefield" to mean "anywhere", who don't read "foreign" to mean "foreign or domestic," that when they say "can't be held indefinitely" don't think "sure they can" and who don't think the Hamdi plurality was joking when they stated:
Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U.S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004. The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.
So, once I again, I implore you - if you're going to argue against the Fourth Circuit's decision, we'd all appreciate a whole lot less snark and maybe some discussion about the court's decisions in Hamdi and Hamdan, the text and the legislative history of the MCA, and the ACTUAL FACTS in front of the Fourth Circuit.
[OK Comments: Justin, this is a really angry and hostile comment. The problem is that you read Hamdi one way and I read it another way. You think the Court was intentionally settling that the category was narrow; I think the Court was intentionally saying very little so it wouldn't screw anything up accidentally. Sorry if you find my reading illegitimate; it's my best sense of what the opinion means, and I guess we'll just have to disagree. I hope we can do so civilly.]
Strange, but I actually fear that the next terrorist attack will kill me. As for what the government does afterwards? That doesn't concern me much, because I think I'll be dead. And if that future government is involved in making sure 10 million or more people don't die on Day 2 of a post-nuclear Armageddon America, then many people might consider it an improvement over the former.
"First, we kill all the lawyers." That wasn't a joke, you know.
Even supposing that is true, what is that supposed to prove? That we might as well act as if we are already terrorized to the point of discarding our current Constitution in anticipation of that possibly happening?
That is giving terrorist enormous power: they don't have to even carry out their plans, because we will act as if they already succeeded.
I would point out the salient difference between an Al-Qaeda cell and (a child molester, a murderer, a fundamentalist bomber, etc). There is a _Congressional Declaration of War_ against the former. (and yes, the AUMF is a declaration of war, in fact if not in name)
Smart guy, that Shakespeare.
Here is the exchange:
JACK CADE.
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop'd pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,- as king I will be,-
ALL.
God save your majesty!
JACK CADE.
I thank you, good people:- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
DICK.
The first thing we do, let's kill all the lawyers.
Just curious -- Why?
Of course, the AUMF does not in fact mention sl Qaeda. It is also a bit absurd to call it a declaration of war, except perhaps to the extent it applies to nations. Here is the operative language:
"IN GENERAL- That the 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."
Can you declare war on individual people? I'd suggest that is a nonsensical idea. I'd also suggest it is equally nonsensical to declare war on an organization like al Qaeda, except in the metaphorical sense.
IIRC, the Quirin defendants did not deny that they were members of the German armed forces, nor that they had entered the country by U-Boat. That would seem to distinguish their cases.
So the AUMF may or may not apply to the 5 Qatarians in the hypothetical. Even if they are an "al Qaeda cell", does this mean that they are automatically persons who either aided the 9-11 attacks or "harbored" those who did? And if they were, it would be easy to alter the hypothetical to make the terrorists an independent group of foreign Islamist extremists.
the persons and organizations who carried out the 9-11 attacks
you sound like a terrist..i think well detain you indefinitly