Fourth Circuit Rules That Suspected Terrorist Cannot Be Seized and Detained in U.S. WIthout Being Charged With Crime in Court: In a stunning decision, a divided panel of the Fourth Circuit has squarely rejected the Bush Administration's view that it can detain an alien terrorist suspect lawfully in the United States as an "enemy combatant." The case is Al-Marri v. Wright, and the opinion was authored by Judge Motz and joined by Judge Gregory. This is a very important case; I suspect the Supreme Court will take it if the Fourth Circuit doesn't go en banc. While I'm at it, I'll wager a guess that the Supreme Court will reverse.

  Ali A-Marri is a citizen of Qatar who attended college in the U.S. in the late 1980s and early 1990s. Al-Marri then left the U.S.; he returned to the states on September 10, 2001, allegedly to attend graduate school at Bradley University. The government believes that Al-Marri is an Al-Qaeda member who is supposed to be part of the "second wave" of teror attacks following 9/11. Al-Marri was arrested in December 2001 in illinois and was charged criminally, but in 2003 President Bush signed an order declaring Al-Marri an "enemy combatant." Since then, Al-Marri has been held as an enemy combatant.

  In today's decision, the Fourth Circuit ordered that l-Marri must be set free from military detention. After holding that Congress did not strip jurisdiction over the case in its 2005 and 2005 habeas legislation, the court held that the government does not have any statutory authority to detain Al-Marri and has no "inherent" constitutional authority to do so. According to Judge Motz, Al-Marri was not an "enemy combatant" who could be detained under the AUMF because unlike Hamdi, Al-Marri was just a suspected Al-Qaeda terrorist: he was not someone who had been connected to international hostilities like the war in Afghanistan. The court takes a very narrow view of the category "enemy combatant"; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist:

[U]nlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world. See Rapp Declaration (alleging none of these facts, but instead that "Al- Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States").

In place of the "classic wartime detention" that the Government argued justified Hamdi's detention as an enemy combatant, or the "classic battlefield" detention it maintained justified Padilla's, here the Government argues that al-Marri's seizure and indefinite military detention in this country are justified "because he engaged in, and continues to pose a very real threat of carrying out, . . . acts of international terrorism."

According to the Fourth Circuit, this left Al-Marri as a "civilian," and thus entitled to the Due Process protections of anyone lawfully in the United States. In other words, the AUMF just doesn't reach so far as to permit the military to detain a civilian terrorist suspect in the U.S. like Al-Marri.

  The Court next rejects the government's claim that the President has inherent authority to detain Al-Qaeda suspects. In language that David Addington isn't going to like, Judge Motz takes a very different view of the President's inherent powers:

[A]bsent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them "enemy combatants."

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them "enemy combatants," would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws "to go unexecuted, and the government itself to go to pieces." We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

  My prediction: I tend to doubt this decision will stand. My very tentative guess is that either the en banc Fourth Circuit or the Supreme Court will reverse, holding that the AUMF is broad enough to authorize an Al-Qaeda suspect like Al-Marri and therefore the detention is authorized by statute.

  Finally, a note to readers: This is a long and complex decision that I have blogged very quickly in light of its importance. If I've missed something, or have a factual error, please e-mail me and I will correct the error.

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:

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.

Thoughts on the Continuum Between War and Crime: My post last night on what to do with Al-Qaeda cell members who can't be charged in criminal court led to a fascinating and long comment thread — about 100 comments in two hours last night, plus another 120+ so far today — and I wanted to follow up and respond to some of the comments. In particular, I want to to talk about the continuum between fighting wars and fighting crime, and where I think the Al-Marri case fits on the spectrum.

  First, let's talk about some first principles. Our traditions know two basic ways of dealing with hostile actors: through war and through the criminal justice system. Within each system, there is a balance of factors at play in creating the rules. As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that. There are limits, of course, conventions as to the laws of war and rules that each side adopts. But by and large the goal of self-protection by disabling future attacks takes priority.

  The modern criminal justice system is different. Incapacitation is only a small goal of that system. Rather, we are primarily interested in punishing to discourage future harmful acts and to further the ends of justice. We create law enforcement offices to investigate and prosecute the acts to make this possible, but we intentionally give them only limited powers because we don't want them to be the problem rather than the solution. We make the police jump through a lot of hoops and face punishment for breaking the rules: they have to prove their cases in particular ways, subject to strict evidentiary rules, confrontation rights, the exclusionary rule for search and seizure violations, and the like. The intuition is that limited police powers can prevent abuses while giving the police enough authority to investigate a reasonable amount of crime.

  What's interesting about these two different systems is that we can think of many cases that are somewhere along the continuum between the two poles. Consider the following persons detained by the United States in various circumstances:

1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle.
2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government.
3. Suspected German soldier seized on the battlefield on D-Day in 1944.
4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans.
5. Suspected crack cocaine dealer arrested in New Jersey.
6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11.
7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S.
8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fun to help Al Qaeda launch more attacks in United States.
9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base.
10. U.S. soldier in World War II suspected of being a double agent for the Germans.

  From the standpoint of policy, which of these cases should be handled under the "war" rules and which under the "crime" rules? And how do you tell the difference? My sense is that most people would say that there are difficult line-drawing issues here. Not everyone on this list should be dealt with under the "war" rules; not everyone on this list should be dealt with under the "crime" rules.

  Plus, we have a range of different criteria to use to determine which set of rules should apply, without any one criteria being the obvious factor that should control as a matter of policy. Some might want to focus on the seriousness of the perceived threat; others on whether there has been a formal declaration of war; others on whether a foreign country is involved; others on the individual's citizenship; others on the location or circumstances of the seizure.

  All of these are possible lines to draw, but none are widely agreed to be the most important; as a result, we have a continuum from war to crime with some cases seeming to be somewhere in the middle. (Plus, while court cases help resolve some issues at the far ends, the existing cases are not very consistent; compare Ex Parte Milligan with In re Quirin. There's not a lot of consistent guidance from them, so we have one side making Milligan arguments and the other side making Quirin arguments.)

  Now, back to my hypothetical in which we have admitted Al Qaeda terrorists who entered the U.S. to launch an attack but who can't be charged criminally. The Al-Marri case tells us that we have to deport them or set them free, a result that I described in one of my less articulate moments as "bizarre." Many commenters objected, asking, what's so bizarre about that — isn't that how the criminal justice system works? I think that's the wrong box, though; I see the case as much or more a "war" case than a "crime" case.

  Why? There are two primary reasons I see it that way. The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor. Second, the members of the group have no connection to the United States other than as soldiers. The only reason they are here and not on the battlefield abroad is that they have chosen to attack the enemy's civilian population rather than its soldiers. They not only see themselves as soldiers; they are here as soldiers. When you put those two factors together, it seems to me that the case is as much or more a "war" case as a "crime" case. I realize it won't seem that way to everyone, but it does to me.

  Now, so far I've mostly ignored the question of how you know if someone is who they are suspected of being. "Sure," you might say, "maybe we detain an Al Qaeda cell member who enters the U.S. just to attack us — but how do we know who that is?" But here I think the Hamdi plurality had a pretty good solution — kinda made up as a matter of constitutional law, perhaps, but not bad as a pragmatic solution to the problem. Under the Due Process approach offered in Hamdi, an individual's procedural rights — what trial they get to test their detentions — is a sliding scale depending on who the person detained is, where they were detained, why, citizenship, etc. As I see it, it's a mushy balancing test that ends up largely replicating the continuum from crime to war; it's a blend of the crime model and the war model. The closer a case gets to a traditional crime category based on known and acknowledged criteria, the more Due Process rights resemble a criminal trial. On the other hand, the closer a case gets to the traditional war category based on known and acknowledged criteria, the more those rights resemble the traditional standards used in war.

  What I found odd about Al-Marri is that it seems to treat most cases of Al Qaeda terrorists here to attack us as crime cases. It seems to me like an effort to bypass the Supreme Court's sliding scale war-crime framework in Hamdi and to replace it with a regime in which all the Al-Qaeda bad guys are forced into the crime model. I don't think this is the right box, which is why I see the Al-Marri framework as odd.

  Anyway, that's my take. I realize a lot of commenters disagree, but I hope we can approach the disagreements in good faith with the understanding that we are all trying to grapple as best we can with a very difficult set of problems.

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.

Fourth Circuit Grants Petition for Rehearing in Al-Marri: The Fourth Circuit has granted the government's petition for rehearing in Al-Marri v. Wright, the case about the suspected Al Qaeda cell member who allegedly entered the U.S. to commit attacks here and was seized and held by the military.