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Federalist Society Online Debate on the Al-Marri Decision:
The Federalist Society has posted an online debate about the Fourth Circuit's recent decision in Al-Marri v. Wright. The contributors were Richard Epstein, Andrew C. McCarthy, George Terwilliger, Erwin Chemerinsky, John Hutson, and myself. You can read the Justice Department's petition for rehearing in the Al-Marri case here.
paul lukasiak (mail):
While i did not read all the opinions, I got far enough to ask the question "Where are the Geneva Conventions provisions regarding spys and saboteurs in this discussion"...so I did a text search, and found that "Geneva" was not part of the piece.

The Conventions allow for military detention, and very few rights, for saboteurs. It seems to me that if the US government would simply honor the Geneva Conventions, and get rid of the dubious "illegal combantant" category and classify detainees as either civilian criminals, "regular" prisoners of war, or "spies and saboteurs" the entire al-Marri issue becomes moot. We're involved in a war in Afghanistan, and "al Qaeda" types who are captured in this country could easily be held with very limited rights as saboteurs for as long as that war lasts under the Conventions -- and under the conventions, military tribunals are perfectly acceptable as a means of determining whether someone can be classified as a saboteur.
7.6.2007 2:19am
Anderson (mail) (www):
Interesting stuff. I cannot help thinking that Prof. Kerr places too much weight on Hamdi, which simply isn't on point with al-Marri. It may be the best guide we have, but the Court just wasn't presented with someone captured on U.S. soil, and there are good reasons to think that the analysis would've been different.

Not to rehash the argument of earlier threads, but I think it appeared that Prof. Kerr was more ready than some to argue that a decision was binding authority, even where not on all four points. Maybe b/c he's right and we're wrong, maybe because he looks at these things from a prosecutor's point of view (the law covers YOU, Jack) and some of us from a civil litigator's p.o.v. (well-trained in the Dance of Distinguishing).
7.6.2007 10:23am
ATRGeek:
As I see it, Hamdi is way out past Quirin in terms of who can be classified as a combatant, so Hamdi doesn't really help us decide where to draw the line between Quirin and Milligan.

By the way, at some point I would like to see Orin summon up the courage to acknowledge and condemn the fact that Al-Marri was detained without anything recognizable as due process. That is entirely separate from the issue of exactly what process was due to Al-Marri, including whether that due process could be given in a military context. So, Orin should be able to make his argument about military detention while at the same time condemning the flagrant violation of the Fifth Amendment in this case.

But for whatever reason, Orin has been unwilling to grapple with the enormity of what actually happened in this case (namely, the removal of an otherwise lawful resident from his home in Illinois and his indefinite detention, and likely torture, with no process other than the President's say-so). For example, note that Epstein and Chemerinsky both grasp the enormity of the fact that President and those like McCarthy are not just arguing for a different application of the Fourth, Fifth, and Sixth Amendments to a case like Al-Marri's, but rather are arguing that those constitutional protections do not apply at all once the President unilaterally declares someone an enemy combatant. But rather than respond to any of that, Orin focuses his attention entirely on the issue of whether Al-Marri was entitled to the same or more process as Hamdi.

That, of course, is a respectable issue, and indeed one on which Epstein and Chemerinsky apparently might disagree. But again, by focusing all of his attention on that issue, Orin is simply ignoring the central issue, which is that the President and McCarthy want Al-Marri to have no right to any due process at all (and that is exactly what Al-Marri got: no due process at all).

So for goodness sake, Orin, get your head out of the sand. We can argue about what process was due Al-Marri once we actually reach that issue, but let's first establish that Al-Marri did in fact have a right to due process under the Fifth Amendment. And let's do that even if that means you will to have lose a bit of the nonpartisan polish on your veneer.
7.6.2007 11:30am
Anderson (mail) (www):
As I see it, Hamdi is way out past Quirin in terms of who can be classified as a combatant

ATR, rather than me guess what you mean by that &then argue with the guessed-at position, would you please clarify what you mean?

I realize how pernicious that request is to the entire spirit of blogging, but just this once.
7.6.2007 11:49am
ATRGeek:
Anderson,

Sure. Here is the relevant part of the plurality opinion in Hamdi:

"The threshold question before us is whether the Executive has the authority to detain citizens who qualify as 'enemy combatants.' There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the 'enemy combatant' that it is seeking to detain is an individual who, it alleges, was 'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized."

So, like Haupt (the citizen in Quirin), Hamdi was allegedly supporting forces hostile to the United States--but so was Milligan. Unlike Haupt, however, Hamdi was allegedly captured in Afghanistan, and was allegedly engaged in armed conflict. Haupt was captured in the United States and although he had entered the US on a German U-Boat and wearing German insignia with the intention to commit acts of sabotage, I believe he was visiting his home in Chicago when he was arrested.

So, in my view, Hamdi was much more clearly a combatant than Haupt (at least as the facts were alleged). Therefore, Hamdi does not really help us find the line between Haupt and Milligan.
7.6.2007 12:34pm
OrinKerr:
ATRGeek,

Your harsh criticisms of my position would be more effective if they had a connection to my position. I have been arguing all along that under Hamdi, Al Marri has some kind of due process rights -- probably something equivalent to what Hamdi had. I have been arguing all along that Al Marri has those rights and deserves the process he is due.

Your response to this is to boldly proclaim that I need to get my head out of the sand and recognize that Al Marri has some due process rights. But I don't think that it is my head that is in the sand.
7.6.2007 6:20pm
Justin (mail):
My position on the whole relevancy of Hamdi is clear from previous posts - I'm still just unsure why people think that a case that goes out of its way to distinguish itself ex ante from the types of facts in Al Marri would even be conceivably binding on the Fourth Circuit. If anything, Hamdi's dicta seems to REQUIRE the Fourth Circuit's decision.
7.6.2007 6:45pm
Justin (mail):
OT: I'm still interested in Orin Kerr's thoughts about the substantive questions in Warshak - unless that first post was all that he had to say, in which our disagreement is pretty minimal on the substantive side.
7.6.2007 6:49pm
ATRGeek:
Professor Kerr,

Three followup questions:

If Al-Marri had due process rights, did the government violate those rights?

If the government did violate his rights, were those violations clear at least after Hamdi was decided on June 28, 2004?

And finally, if so, what do you think should be done when a government is clearly violating constitutional rights?
7.7.2007 10:19am
occidental tourist (mail):

Orin is simply ignoring the central issue, which is that the President and McCarthy want Al-Marri to have no right to any due process at all (and that is exactly what Al-Marri got: no due process at all)


Orin answered for himself, but for McCarthy the appropriate citation it seems would be the following excerpt from his opening statement:


Professor Epstein maintains that "the only process given in the case was the declaration by the President that al-Marri was an enemy combatant associated with al Qaeda, with no independent oversight and no chance to respond." To the contrary, the panel majority notes that, in 2004, the government filed an answer to al-Marri's petition in the district court, laying out in some detail that al-Marri had been trained in Qaeda camps, answered directly to Khalid Sheikh Mohammed, and met personally with bin Laden himself, volunteered for a martyr mission, was sent to the U.S. by the terror network as a sleeper, met with a financier while here to receive funding for a computer which he was to use to disrupt the U.S. financial system, and gathered both information on poison chemicals (under circumstances where we are aware that al Qaeda seeks to carry out WMD attacks) and false identification to facilitate his activities. Al-Marri, after being given access to counsel, was expressly invited by the district court to file a rebuttal to the government's presentation. He declined to do so, simply submitting a conclusory assertion that he was not an enemy combatant. I think that was more than adequate due process under the circumstances.


Before ATR geeks off again, let me allow that it appears his contention is the approach of the executive and the procedure before this substantive exchange described by McCarthy, because it took place in the context of the court case in which Al Marri challenged his detention.

In the procedural sense one can criticize McCarthy as disingenuous because this process was afforded by the judiciary and not the executive, but who says that the process must be administrative in nature?

Indeed, substantively speaking, this narrative is as chilling as ATR's idea that some poor alien who was just hear for an education got snatched from his home. But in the face of these allegations it seems that a conclusory assertion that he is not an enemy combatant is more hollow and more inadequate than the president's that he is.

I didn't follow the pleading or briefs so it wouldn't surprise me if the government argued that Al Marri should not have had access to the court in the first place. But that does not seem to be the point that anyone is arguing in the debate at this point.

Whether these allegations are fabricated or not, how do they not articulate reasonable suspicion on the part of the government and place some burden, balance of the evidence, or perhaps reasonable doubt leading to further process ( I went to see Osama to get investment advice, they doctored the footage, I was at the 7-11 when when I was supposed to be at that meeting, backed up by some evidentary production).

While Paul's appeal to applying the Geneva Convention seems reasoned I would take it under advisement. While separate provision seem to be made for saboteurs as irregular combatants the complexity of applying its provisions to non-uniformed,non-commisioned, ex-national participants in hostilities may recommend against its use here. Obviously, its provisions regarding interrogation are a background to evading its application as well.

While it can fairly argued that the convention has served us well through eras that were by no means free of irregular forces and terrorist activities, to an extent such activities have traced historically to a nationalist cause if not a nation so there was a degree of coherence.

If one concedes the current hositilities are between the west and the efforts to establish the greater caliphate and we were willing to acknowledge that then this would make sense. The efforts of everyone to tiptoe around the issue of who we are at war with is a problem in sorting these issues out and after a fashion I would support trying to force the executive's hand on this.

Best line in this regard I have heard was from Rick Santorum (don't know if he originated it or not) who said calling this a 'war on terror' is like calling World War II a 'war on blitkrieg'. You can't make war on a tactic.

Bush is trying to have it both ways to satisfy muslim sensibilities by not identifying the an enemy and then declaring someone part of it. If muslim's are offended that we are at war with radical muslim's that is too damn bad. It is not that I don't recognize this would make them uneasy given the xenophobic impulses that inevitably trace from such circumstances, but to an extent this is the kind of market pressure within the sphere of political economy for them to exert pressure against such activities by thier co-religionists in which they fear to be swept up. If this was aggressively pursued, the every present spectre of the internment of Japanese Americans and the like would not be as relevant a consideration.

But Bush's unwillingness to state the obvious does give rise to reasonable questions as to whether anybody in the animal rights movement or McVeigh style sociopaths with right-leaning anti-societal tendencies could be detained indefinitely which confuses the issue at hand here.

I concur that the AUMF to an extent distinguishes the current circumstances and the dissection of what it was meant to mean bears on the specific case. I find myself caught between those who argue for a measure of political vs. judicial accountability in the matter.

While I think the theory of political accountability is correct, I think it tends to a reactionary flavor in practice -- not that it is always wrong or inconsiderate of constitutional considerations, but ultimately I tend to come down on Epstein's side that the court is not to absent itself from these arena's based on the political question doctrine.

While I tend to agree with the view that the AUMF was not considered to encompass the breadth of activities undertaken under its auspices, that is different from the question of whether it textually and analytically does so. And any attempt at legislative correction is never going to be the same as making the legislation say what it was meant to say at the time it was written.

CWA and section 404 come vividly to mind.

[more than] nuff said.

Brian
7.7.2007 11:21am
OrinKerr:
ATRGeek,

1) As fas I know, Al Marri has not been given the process I believe he is likely due.

2) No. Hamdi suggests he is due some process, but it leaves room for a lot of guesswork as to what process he is due.

3) Your use of the passive voice here leaves your question unclear: "what should be done" by whom? By Al Marri? By voters? By bloggers? And do you mean in this case or a case n which the Due Process question is clear?
7.7.2007 12:44pm
ATRGeek:
occidental tourist,

The government opposed the district court's jurisdiction to hear Al-Marri's habeas petition (and still does), so the government never willingly gave Al-Marri any process not forced on it by a court.

Orin,

On #2: The plurality opinion in Hamdi states: "We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker."

Did the government afford Al-Marri process that could arguably comply with this requirement after Hamdi came down?

On #3: How about by you, Orin, as a citizen and law professor?

And I urge you to think very carefully about Question #2 again. Do you really think it is unclear whether or not Al-Marri got the process he was due (prior, of course, to his habeas petition)?
7.7.2007 3:35pm
just wondering (mail):
I think the whole discussion is missing some historical context. (I don't mean here, but in general). It has not been the case that every enemy collaborator and suspected 'fifth columnist' is treated as an 'enemy combatant,' even during declared wars against hostile nations. (Not since Milligan, anyway). Suspected saboteurs were either tried or interned as enemy aliens pursuant to 50 USC 21. As the Fourth Circuit noticed, that law does not apply here. Why should the AUMF be interpreted to imply the power to detain suspected enemies when a separate statute appears to have been necessary to support internments during declared wars? (If Congress had thought so, why the whole Patriot Act...?) The German saboteurs were treated as 'enemy belligerents' because they literally landed as a mini-invasion force -- and they were initially arrested on alien enemy warrants and then prosecuted. Other spies and collaborators, even those who were members of the reserve forces of enemy countries, were arrested and held as alien enemies pursuant to statute, or, if the government had sufficient proof of conspiracy or wrongdoing, prosecuted (generally in civilian court, although there were a couple of instances where military commissions or courts-martial were employed). Al-Marri's detention is not just an ordinary wartime detention, as most of the participants on the panel seemed to view it.
7.8.2007 1:26am
occidental tourist (mail):
ATRGeek,

It seems to me you dwell on form over substance. Last I looked "the government" is made up of three branches. The executive took an action - possibly extraordinary in possibly extraordinary circumstances - the judicial branch has reviewed that action.

That is process.

This was the holding of the district court and this is the Hudson's point in the dissent. I am not suggesting that Hudson's dissent is persuasive in it's entirety, but neither is bereft of reason.

The focus of Motz's opinion for the court rejecting Al Marri's detention is the military/civilian distinction, and not really whether process has been afforded.

The military detention order by the President was entered on or about June 23, 2003. Al Marri's first Habeus petition was filed on July 8th, 2003.

Motz can't keep herself from belaboring the fact that this has gone on for 4 years, but that doesn't meant that process hasn't been afforded for 4 years, I count about 15 days.

Orin, who you accuse of not wanting any process for the guy seems to be on your side and has said repeatedly that some process was due that he doesn't think Al Marri got yet.

I conceded at the outset that it was likely the government opposed jurisdiction in this habeus matter, but they did so based on the MCA, not on the theory that the presidents power to detain unilaterally can't be challenge as a matter of inherent authority (they cited inherent authority as the background justification for military detention, not as an answer to the process question).

Ultimately, it would appear that stretching this all out to 4 years has been because counsel and Amici for Al-Marri wish to establish principle in opposition to the President rather than answer the allegations.

The President contested the Habeus review but responded substantively to the reasoning for detention. Why didn't Al Marri contest the military detention as a matter of law while responding substantively to the case specific allegations if he didn't want this to drag on for 4 years?

I don't mean this purely cynically and I can think of some innocent motives.

The Military/Civil dichotomy is difficult, but it is made moreso because noone seems to acknowledge that Peoria IS the battlefield. The battlefield is here in these hostilities as well as elsewhere. Of course this raises the dangerous spectre of the misuse of presidential power through miltary action within the country. Epstein is a brilliant scholar who has very legitimate complaints.

I'm not taking sides - until I consider more of this argument -- whether the military detention is appropriate however I tend to think that Habeus is process. It may be cumbersome and the government might be well advised to devise an administrative procedure but are we so comfortable with quasi-judicial and quasi-legislative action by the executive that we have forgotten that these processes were once theoretically separate?

Brian
7.8.2007 10:45am
ATRGeek:
occidental tourist,

I'm waiting for Orin to respond, so I will keep this short. The proposition that the government can imprison a person and violate their due process rights unless and until someone files a habeas petition on their behalf is absurd both legally and practically.
7.8.2007 11:03am
OrinKerr:
ATRGeek,

Is Al Marri is a citizen? I thought it was agreed by all that he was not. If you have reason to think that Al Marri is a citizen of the United States, then I agree that Al Marri's rights have very obviously been violated. In that case, I hope you'll explain why you think Al Marri is a citzen, which would of course be a very important distinction.
7.8.2007 11:10am
ATRGeek:
Orin,

You know as well as I do that the Supreme Court has already held that aliens who enter the United States lawfully have Fifth Amendment due process rights. And I thought you had agreed that Al-Marri was entitled to the same process as Hamdi, but I guess now you are arguing he is entitled to something less.

More broadly, I consider my "harsh criticisms" entirely justified by your dodges in this conversation. My "harsh criticisms" were based on the claim that you have refused "to acknowledge and condemn the fact that Al-Marri was detained without anything recognizable as due process." And yet you continue to dance around this issue and have yet to acknowledge the actual facts of this case, let alone explain how the process afforded to Al-Marri complied with any reasonable definition of due process.

So I repeat: get your head out of the sand, Orin. And yes that is harsh, but you deserve it.
7.8.2007 12:22pm
ATRGeek:
This is what Orin said above, by the way:

"I have been arguing all along that under Hamdi, Al Marri has some kind of due process rights -- probably something equivalent to what Hamdi had. I have been arguing all along that Al Marri has those rights and deserves the process he is due."

So much for that, I guess. It turns out that since Al-Marri isn't a citizen and was merely a lawful resident, in Orin's view he does not have the same due process rights as Hamdi.

Shame on you, Orin, for being willing to abandon your stated position on Al-Marri's rights as soon as it is pointed out to you that the government clearly violated those rights. Seriously, shame on you.
7.8.2007 12:26pm
OrinKerr:
ATRGeek, you keep confusing two different questions. I think it would help our search for answers if you could keep them separate.

The first question is whether Al Marri deserves process under the Constitution: My answer all along, repeated at least five or six times by now, has been that yes, I believe Al Marri probably has some due process rights under Hamdi. We can't be positive about that, as Hamdi requires case by case balancing and we don't know exactly what it requires here (what case did you have in mind as clearly establishing he has due process rights?). But yes, I think Al Marri has some rights to process to determine his status under Hamdi.

The second question is *what* due process rights Al Marri has. In Hamdi, a majority of the Supreme Court rejected the notion that due process is an on/off switch: Instead the court indicated that there was a sort of balancing that goes on in light of the category of case. We don't know how that applies to Al Marri: I would guess that in the end Al Marri ends up with something like Hamdi had. Again, I don't know that with any certainty; it's my best guess, based on how I think the courts would apply the Matthews v. Eldridge balancing scheme to a case like Al Marri (a non citizen, but one detained in the U.S.). Maybe Al Marri will get more rights than Hamdi; that's certainly possible. But it's the drawback of the Eldridge scheme; you don't know what the Constitution requires until the courts answer it, and they haven't answered it yet for a case like Al Marri because he is the only person being so held (as far as I know).

Have Al Marri's due process rights been violated? Assuming his due process rights include *timely* process, then presumably so: Al Marri has been detained for years, and as far as I know he hasn't received any process at all. My own view is that the government should have given him Hamdi-like process after Hamdi came down rather than fight this every step of the way in the courts. True, that might have meant that Al Marri got more process than he was constitutionally obligated to received, but I don't see the problem with that.

More broadly, I hope you will recognize that our differences don't have to do with shame or morality; people with their head in the sand usualy don't spend their free time debating harsh and anpnymous critics in threads no one else is reading. Rather, our disagreements have to do with out different understandings of a Supreme Court decision. I think you just don't understand Hamdi, the key precedent on this issue, and that failure to grapple with what Hamdi means has led you to misunderstand and misrepresent my position throughout.
7.8.2007 1:59pm
occidental tourist (mail):
ATRGeek,

So I am maintaining the company of the absurdists in the conception that habeus is process. Just because you conceive of it as last resort doesn't mean it might not also be first resort.

I think it the aculturation to administrative governance that gives rise to the idea that habeus as process in this context is somehow an aberration, not meaning to say wins or loses the argument but is outside the bounds of reasonable argumentation.

My line is not the distinction between citizen and alien or even the question whether an alien has developed a connection with our society. Rights are a consequence of conscious humanity - in a sense the capability to assert a claim to their equal application. Nations or societies that form for the sake of mutual observance of these baseline conventions may make distinctions such as citizenship relevant to the defense of these rights under law in that society but I would agree that morally these protections extend to anyone in the country.

But the circumstances of their being here may lead to differing justifications for their detainment under authority of law that implicate difference processes. The Military/civilian distinction is the one of interest to me here. The purpose of military detention is not to punish but to insure that belligerents do not return to the field of battle. I believe our soil is the field of battle.

Of course this raises a specter of abuse. The same power to detain might be exercised against a citizen, or may be arbitrarily or corruptly exercised. Given the amorphous confines of 'enemy','battlefield' and 'cessation of hostilities' in this conflict the courts have been demanding process well in excess of that afforded POW's. That seems reasonable, but the Bush administration's contention that actor's like Al-Marri should be subject to military detention does not seem fanciful in my book.

There are reasonable arguments, as some have made on this thread, that it is unnecessary and unwise to pursue this course, as well as that it is certainly courting the edge of constitutional conduct. That would not make it the first unnecessary or unwise course pursued by President Bush. But I simply do not credit the barricades style 'end of the constitution' that some see as a result of the measuring out of these bounds.

I think it irrefutable that the battlefield is here. There is a reasonable argument to be made that this then requires the declaration of martial law or suspension of the writ in order to support actions such as the military detention in Al Marri. But isn't that ironic, suggesting that the alternative offered the government for someone who was able to challenge his detention in the first place through the writ is to suspend the writ?

Brian
7.8.2007 2:49pm
ATRGeek:
occidental tourist,

Peoria, Illinois, is not a battlefield in any literal sense, and it is indeed an absurd mockery of due process for anyone to argue that a habeas petition--which is expressly brought by the petitioner to establish that his imprisonment is illegal--can be the first process the petitioner receives.

Orin,

First, for the proposition that aliens lawfully in the United States have due process rights, I would cite the text of the Constitution, Wong-Wing, and Verdugo-Urquidez. So, I suspect, would you.

Second, here is what is so cowardly about your ducking of this issue. Yes, under Mathews and Hamdi there is a balancing approach for due process claims. But here, the only process Al-Marri got was the President's declaration. You know as well as I do that there is no chance that would survive a due process challenge--not for a parking ticket, and certainly not for indefinite detention.

But I have literally never seen you acknowledge that the only process Al-Marri got was the President's declaration. And I am confident I know why: because the fact you are ducking this issue would become apparent as soon as you acknowledged this fact.

In short, once you admit that Al-Marri has any due process rights at all, it is game over, because there is absolutely no way a Presidential declaration counts as due process. I know it, and I know you know it, but you are refusing to acknowledge it.
7.8.2007 4:05pm
OrinKerr:
ATRGeek,

Let's take your latest response paragraph by paragraph.
First, for the proposition that aliens lawfully in the United States have due process rights, I would cite the text of the Constitution, Wong-Wing, and Verdugo-Urquidez. So, I suspect, would you.
How does the text of the Constitution settle this? I don't know why Verdugo is relevant, as it is a 4th Amendment case rather than a 5th Amendment case. And what is "wong wing"? I have never heard of it.
Second, here is what is so cowardly about your ducking of this issue. Yes, under Mathews and Hamdi there is a balancing approach for due process claims. But here, the only process Al-Marri got was the President's declaration. You know as well as I do that there is no chance that would survive a due process challenge--not for a parking ticket, and certainly not for indefinite detention.
Yes, that is exactly why I think Al Marri deserves process. Assuming he has a right, which as I have said seems likely, and assuming that right includes a right to timely process, then his due process rights have been violated. I am not sure why my saying this is cowardly and evasive while your saying the same thing makes you a great hero for American civil liberties. Yeesh.
But I have literally never seen you acknowledge that the only process Al-Marri got was the President's declaration. And I am confident I know why: because the fact you are ducking this issue would become apparent as soon as you acknowledged this fact.

In short, once you admit that Al-Marri has any due process rights at all, it is game over, because there is absolutely no way a Presidential declaration counts as due process. I know it, and I know you know it, but you are refusing to acknowledge it.
ATRGeek, my stance from the beginning has been that Al Marri probably has a right to Hamdi-like process. If that is right, then given that Al Marri has aparently received no process, then obviously Al Marri hasn't yet had due process. That is why I think he should have process. He has literally been denied the process that I tend to think he is due under the Mathews blancing test applied in Hamdi. That is why I have been arguing all along that the Fourth Circuit should have applied the Matthews test, determined what rights Al Marri is due, and ordered the United Sates to give him that process.
7.8.2007 5:06pm
ATRGeek:
Orin,

The text of the Fifth Amendment in relevant part states: "No person shall . . . be deprived of life, liberty, or property, without due process of law." It doesn't say "no citizen" (as the Supreme Court has noted: see below).

Wong Wing is found at 163 US 228. At 238, the Court states:

"And in the case of Yick Wo v. Hopkins, 118 U.S. 369, 6 Sup. Ct. 1064, it was said: 'The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.' These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws.' Applying this reasoning to the fifth and sixth amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law."

I would cite Verdugo simply because it is more recent, and cites Wong Wing for the proposition "resident aliens entitled to Fifth and Sixth Amendment rights." 494 US at 271.

Anyway, the sticking point seems to be your answer to my Question #2 ("If the government did violate his rights, were those violations clear at least after Hamdi was decided on June 28, 2004?"). You answered "No", but all your substantive arguments support a "Yes" answer. So, how was it not clear that the government was violating Al-Marri's due process rights? Do you really think there is a reasonable argument to the effect that the government could rely solely on a Presidential declaration? What is that argument?

Note, by the way, that you may or may not think Hamdi is actually important, or simply redundant in light of Wing Wong and any plausible application of Mathews. I mentioned Hamdi in my Question #2 only because it makes clear that the Supreme Court does not think the 2001 AUMF somehow suspended due process rights, and that even in that context due process requires things like a fair hearing before a neutral decisionmaker.

And indeed after Hamdi (and Rasul), the government started giving the Quantanamo detainees Combatant Status Review Tribunals, nominally to comply with Hamdi and Rasul. Arguably the CSRTs are a sham, but in any event Al-Marri was never given a CSRT. So, that sequence of events just underscores that after Hamdi and Rasul, the government recognized a duty to give some of its detainees some sort of process. And yet it continued to deny such process to Al-Marri.

Again, it seems to me that the government's violations of Al-Marri's Fifth Amendment rights were very clear. But I await your explanation of how you would argue otherwise (with citations, please).
7.8.2007 10:56pm
ATRGeek:
By the way, for what it is worth I certainly do not consider myself a hero. I also recognize that the fact you have responded to my criticisms indicates that on some level you do take these issues seriously. Of course, that is why I bother arguing with you (as I would not with, say, the true loyal Bushies of the world).

But I do believe that you have shied away from answering "Yes" to my Question #2 with no real justification. And I think that is because of my Question #3. Specifically, I think you cherish your self-assigned role as a neutral and dispassionate commentator on these issues, and fear that if you went so far as to condemn the government for clearly violating constitutional rights, you would lose your status as a neutral.

But I think the government has given you no choice: when you refuse to condemn the government's lawbreaking, you are not maintaining your neutrality, but are actually abetting that lawbreaking. So, your attempts to remain neutral on these issues are for naught, and at some point I think you will have to come to grips with that fact.
7.8.2007 11:40pm
OrinKerr:
ATRGeek,

Thank you very much for providing legal authorities instead of trying to shame me into agreeing with you without them. I like these arguments; the statements seem clear and direct, and they persuade me that Al Marri has some kind of Due Process rights based on them. Very helpful.

The reason why I wasn't sure about #2 is threefold. First, I didn't know of the clear language in Wong Wing. Second, I had forgotten that Al Marri wasn't given a CSRT hearing. And third, I don't remember off the top of my head if the Court has spoken about the requirements of the *timing* of the process that is due (making it unclear whether process can be said to be "not yet provided" or "deserved" versus having rights "clearly violated," which was your question.)

I'm curious -- what rights do you think Al Marri is entitled to under the Due Process clause? And what are the best precedents on the timing of process that is due?
7.8.2007 11:52pm
OrinKerr:
ATRgeek,

One thought before your latest comment, which was posted after I started to write my comment above. You write:
I think you cherish your self-assigned role as a neutral and dispassionate commentator on these issues, and fear that if you went so far as to condemn the government for clearly violating constitutional rights, you would lose your status as a neutral.
I am trying to analyze the merits of the cases as legal cases; when I feel confident that one side has the better argument, I am pretty open about saying so. In this area, however, I am working with the very serious disadvantage that I don't know very much about it. While I think I have a pretty good sense of what Hamdi means, I haven't read most of the cases; I don't teach this stuff; and I haven't practiced in the area.

Perhaps the problem is that you assume that I am an expert in this area: your snide asides about what I "obviously" know suggest that you imagine I am well versed in it. Now, I suppose it's flattering that you think I'm an expert in this. But I'm not, and I never claimed to be. I'm just trying to figure things out, and I find it really hard to do that when you try to shame me into agreeing with you instead of making legal arguments that would persuade me.
7.9.2007 12:05am
ATRGeek:
Orin,

As an aside, no one forced you to answer my Question #2 with a "No" as opposed to a "I don't know". More broadly, you have been commenting on the case so I would suggest that you should familiarize yourself with the major issues and relevant authorities. Specifically, the Fourth Circuit cited Wong Wing for the same proposition, so actually I am genuinely surprised that you didn't know what the case stood for (I'm not an expert on the rights of aliens either, but I did read the Fourth Circuit's decision before commenting).

As for your questions: I don't have a position on the minimal process due Al-Marri in some abstract sense, and I actually think defining such a minimum is an inherently suspect task. I certainly think a normal criminal indictment and trial would have been fine. I have also suggested elsewhere on this blog that I think a detention procedure for enemy civilians based on a civil commitment model could provide due process, if it included frequent rehearings. That model would imply a clear and convincing evidence standard, and I suggested it would be advisable for this process to be conducted in Article III courts. Of course these are merely examples of what I think would satisfy a Mathews test and cases like Milligan, but I think that is the better approach (saying what would satisfy due process and other legal requirements, rather than trying to define some abstract minimum).

I am quite confident, however, that detaining a person for several years with no process at all violates whatever minimum requirements the due process clause would impose in such a case (including any timeliness requirements, although I don't know what I would cite for that off hand). Again, that is part of what is so clear about this case: as soon as you conclude Al-Marri has due process rights at all, it is quite clear they were violated. And you really only need a basic understanding of due process to reach that conclusion.
7.9.2007 1:11am
OrinKerr:
ATRgeek, an aside re your first paragraph: You really are an uncharitable critic. You're quick to be nasty, and you don't apologize when you give a low blow ad hominem that's revealed as unfair. Ah, the advantages of anonymity.

Re the rest of your post, thanls. That's possible -- I guess we'll see eventually. (Although I really am curious about the best precedents on the timing of process that is due - that seems like an important point, especially given that the government doesn't have an easy way to know ex ante what process is required).
7.9.2007 1:56am