Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

August 27, 2007

THE “GREAT WRIT” SURVIVES TO FIGHT ANOTHER DAY

Ali Saleh Kahlah al-Marri is a Qatari national and a legal resident of the United States. He lawfully entered the United States with his wife and children on September 10, 2001, to pursue a master's degree at Bradley University in Peoria, Illinois, where he had obtained a bachelor's degree in 1991. The very next day, September 11, terrorists hijacked four jet airliners and ruthlessly attacked the sovereignty of the United States.

On December 12, 2001, some three months after 9/11, the FBI arrested al-Marri at his home in Peoria as a material witness in the Government's investigation of the September 11th attacks. He was initially incarcerated in a Peoria jail before being transferred to a New York City jail.
Two months later, in February 2002, al-Marri was charged in the Southern District of New York with the possession of unauthorized or counterfeit credit-card numbers with the intent to defraud.

In January 2003 al-Marri was charged in a second, six-count indictment: two counts of making a false statement to the FBI, three counts of making a false statement on a bank application, and one count of using another person's identification for the purpose of influencing the action of a federally insured financial institution. He entered a not guilty plea to all of these charges.

In May 2003, a federal district court in New York dismissed the charges against al-Marri for lack of venue.

The Government was unfazed. The post-9/11 hysteria gripped every facet of the Bush administration. Federal authorities returned al-Marri to Peoria where he was re-indicted in the Central District of Illinois on the same seven counts. He once again pled not guilty. The district court set a July 21, 2003 trial date. On Friday, June 20, 2003, the court scheduled a hearing on pre-trial motions, including a motion to suppress evidence al-Marri claimed had been obtained by torture.

On the following Monday, June 23, before the suppression/torture hearing could be held, the Government moved ex parte to dismiss the indictment against al-Marri on an order signed that morning by the President Bush. In his order, the president said he had “DETERMINE[D] for the United States of America that” al-Marri: (1) was an enemy combatant; (2) was closely associated with al Qaeda; (3) had “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism;” (4) “possesses intelligence ... that ... would aid U.S. efforts to prevent attacks by al Qaeda;” and (5) “represents a continuing, present, and grave danger to the national security of the United States.”

That presidential fiat effectively stripped al-Marri of all his constitutional, legal, and human rights. President Bush concluded that al-Marri’s indefinite detention by the military was “necessary to prevent him from aiding al Qaeda.” The President then ordered the Attorney General to surrender al-Marri to the Secretary of Defense, and then ordered the Secretary of Defense to “detain him as an enemy combatant.”

President Bush’s order was issued even though the U.S. Government has never alleged that al-Marri, according to the United States Court of Appeals for the Fourth Circuit, was “a member of any nation’s military, … fought alongside any nation’s armed forces, … or borne arms against the United States anywhere in the world.” See, al-Marri v. Wright, ___ F.3d ___ 2007 WL 1663712 (C.A. 4 S.C. 2007).

The Fourth Circuit opened its long-anticipated al-Marri decision with the historical observation that for over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law.” Id., at 1.

Except al-Marri. He was held in an indefinite detention, without any legal rights or constitutional protections, “solely because the Executive believe[d] that his military detention [was] proper.” Id. During the first sixteen months of al-Marri’s military detention, “the Government, reported the Fourth Circuit, “did not permit al-Marri any communication with the outside world, including his attorneys, his wife, or his children. He allege[d] that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence. A pending civil action challenges the ‘inhuman, degrading’ and ‘abusive’ conditions of his confinement. See Complaint at 1, al-Marri v. Rusted, No. 2:05-cv-02259-HFF-RSC (D.S.C. Aug. 8, 2005). Id., WL at 2.

The Government defended Bush’s actions on the shallow and dangerous legal premise that al-Marri associated with al Qaeda and was “prepare[d] for acts of terrorism” and that the Military Commission Act (enacted by Congress after al-Marri arrest) stripped the federal courts of any authority to question the President’s actions through writs of habeas corpus or any other legal proceedings.

Exhibiting a rare display of respect for the constitution, the normally arch-conservative Fourth Circuit soundly rejected the Government’s argument:

“We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his [habeas corpus] petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government's allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri's conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

“This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians-let alone imprison them indefinitely.”

After being denied habeas corpus relief by the federal courts in Illinois, counsel for al-Marri in 2004 sought habeas relief in federal district court in Charleston, South Carolina. The Government responded to al-Marri’s habeas petition, citing the Declaration of Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism, as support for the President's order to detain al-Marri as an enemy combatant. The Fourth Circuit dealt with this issue as follows:

“The Rapp Declaration asserts that al-Marri: (1) is ‘closely associated with al Qaeda, an international terrorist organization with which the United States is at war’; (2) trained at an al Qaeda terrorist training camp in Afghanistan sometime between 1996 and 1998; (3) in the summer of 2001, was introduced to Osama Bin Laden by Khalid Shaykh Muhammed; (4) at that time, volunteered for a ‘martyr mission’ on behalf of al Qaeda; (5) was ordered to enter the United States sometime before September 11, 2001, to serve as a ‘sleeper agent’ to facilitate terrorist activities and explore disrupting this country's financial system through computer hacking; (6) in the summer of 2001, met with terrorist financier Mustafa Ahmed Al-Hawsawi, who gave al-Marri money, including funds to buy a laptop; (7) gathered technical information about poisonous chemicals on his laptop; (8) undertook efforts to obtain false identification, credit cards, and banking information, including stolen credit card numbers; (9) communicated with known terrorists, including Khalid Shaykh Muhammed and Al-Hawsawi, by phone and e-mail; and (10) saved information about jihad, the September 11th attacks, and Bin Laden on his laptop computer.

“The Rapp Declaration does not assert that al-Marri: (1) is a citizen, or affiliate of the armed forces, of any nation at war with the United States; (2) was seized on or near a battlefield on which the armed forces of the United States or its allies were engaged in combat; (3) was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or (4) directly participated in any hostilities against United States or allied armed forces.” Id., at WL 3.

While al-Marri continued to deny that he was an “enemy combatant” who had engaged in terrorist-related activities against the United States, he did not rebut the Government’s habeas answer. He simply noted for the record that the Government bore the burden to produce evidence that he was an enemy combatant and that the “Rapp Declaration” did not carry that burden. Id., at WL 4.

While al-Marri’s habeas petition was pending in the federal district court, Congress enacted the Military Commission Act which held that no court, justice or judge had the authority to consider a habeas corpus application filed by an alien detained by the United States as an “enemy combatant” or awaiting an “enemy combatant” determination. The district court dismissed the application. al-Marri appealed to the Fourth Circuit.

The Fourth Circuit concluded that the MCA’s restriction on habeas corpus did not apply to al-Marri. The Fourth Circuit turned to the “plain language” of the MCA statute which eliminated habeas jurisdiction only for an alien who “has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” MCA § 7(a). The appeals court said that “the MCA does not apply to al-Marri and the Government’s jurisdictional argument fails unless al-Marri (1) ‘has been determined by the United States to have been properly detained as an enemy combatant,’ or (2) ‘is awaiting such determination’.” Id., WL at 6.

The Fourth Circuit held that the phrase “has been determined … to have been properly” detained requires a two-step process to strip federal courts of habeas corpus relief pursuant to 28 U.S.C. § 2241: “ … (1) an initial decision to detain, followed by (2) a determination by the United States that the initial detention was proper. The President's June 23 order only constitutes an initial decision to detain. To read the statute as the Government proposes would eliminate the second step and render the statutory language ‘has been determined ... to have been properly detained’ superfluous-something courts are loathe to do. ..” Id., at WL 7.

The Fourth Circuit’s reasoning in al-Marri was influenced by the historical distinction the U.S. Supreme Court has made between aliens in the United States vested with rights guaranteed by the constitution to all people within its borders and those aliens who had no lawful contact with this country and who are captured outside its sovereign territory. The Court clearly established that suspected terrorists like al-Marri captured within the United States are distinguishable from those captured outside the country and held at Guantanamo Bay Naval Base, Cuba.

Thus lawful aliens captured within the United States on terror-related charges enjoy the full protections of the state and federal law as well as the United States Constitution whereas Gitmo detainees enjoy only those rights set forth in the administrative review process spelled out in the Military Commission Act. Those administrative rights can be granted or withheld at the whim of the Government. al-Marri’s rights, however, are etched in constitutional stone. As the Fourth Circuit noted:

“al-Marri premises his habeas claim on the Fifth Amendment's guarantee that no person living in this country can be deprived of liberty without due process of law. He maintains that even if he has committed the acts the Government alleges, he is not a combatant but a civilian protected by our Constitution, and thus is not subject to military detention. al-Marri acknowledges that the Government can deport him or charge him with a crime, and if he is convicted in a civilian court, imprison him. But he insists that neither the Constitution nor any law permits the Government, on the basis of the evidence it has proffered to date-even assuming all of that evidence is true-to treat him as an enemy combatant and subject him to indefinite military detention, without criminal charge or process.” Id., WL at 10.

The appeals court agreed with al-Marri’s constitutional position, saying: “’Freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that [the Due Process] Clause protects.’ Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); see also Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). This concept dates back to Magna Carta, which guaranteed that ‘government would take neither life, liberty, nor property without a trial in accord with the law of the land.’ Duncan v. Louisiana, 391 U.S. 145, 169, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (Black, J., concurring). The ‘law of the land’ at its core provides that ‘no man's life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal.’ In re Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Thus, the Supreme Court has recognized that, because of the Due Process Clause, it ‘may freely be conceded’ that as a ‘ “general rule” ... the government may not detain a person prior to a judgment of guilt in a criminal trial.’ United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).” Id., WL at 12.

The Fourth Circuit made the critical observation that “ … the legal status of ‘enemy combatant’ does not exist in non-international conflicts [therefore], the law of war leaves the detention of persons in such conflicts to the applicable law of the detaining country. In al-Marri's case, the applicable law is our Constitution. Thus, even if the Supreme Court should hold that the Government may detain indefinitely Hamdan [“enemy combatant”] and others like him, who were captured outside the United States and lacked substantial and voluntary connections to this country, that would provide no support for approving al-Marri's military detention. For not only was al-Marri seized and detained within the United States, he also has substantial connections to the United States, and so plainly is protected by the Due Process Clause.

“The core assumption underlying the Government's position …seems to be that persons lawfully within this country, entitled to the protections of our Constitution, lose their civilian status and become ‘enemy combatants’ if they have allegedly engaged in criminal conduct on behalf of an organization seeking to harm the United States. Of course, a person who commits a crime should be punished, but when a civilian protected by the Due Process Clause commits a crime he is subject to charge, trial, and punishment in a civilian court, not to seizure and confinement by military authorities.

“We recognize the understandable instincts of those who wish to treat domestic terrorists as ‘combatants’ in a ‘global war on terror.’ Allegations of criminal activity in association with a terrorist organization, however, do not permit the Government to transform a civilian into an enemy combatant subject to indefinite military detention, any more than allegations of murder in association with others while in military service permit the Government to transform a civilian into a soldier subject to trial by court martial…” Id., at 20.

The Government in al-Marri argued that even if all its arguments related to the MCA failed, the President has an “inherent constitutional authority” to order the military to seize and detain persons like al-Marri under the “war powers” granted to him by Article II of the United States Constitution. As the Fourth Circuit noted, the Government argued that the President has “inherent powers” to “subject persons legally residing in this country and protected by our Constitution to military arrest and detention, without the benefit of any criminal process, if the President believes these individuals have ‘engaged in conduct in preparation for acts of international terrorism’ …. This is a breathtaking claim, for the Government nowhere represents that this ‘inherent’ power to order indefinite military detention extends only to aliens or only to those who ‘qualify’ within the ‘legal category’ of enemy combatants’.” Id., at 23 [Emphasis added]

Fortunately, not even the ultra-conservative Fourth Circuit could stomach such a “breathtaking claim” as that posed by the Bush administration – that the President has “inherent power” to supersede the U.S. Constitution.

al-Marri rejected this dangerously absurd constitutional argument. The al-Marri decision stands for freedom and democratic principles. The Fourth Circuit drew a line in the constitutional sand, telling the Bush administration that it is not above the Constitution.

Though critically wounded, the Great Writ survived to live and fight yet another day in the perpetual struggle for the protection of individual liberty.
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