Government calls Al-Marri ruling a threat to security
on Jun 27, 2007 at 5:39 pm
The Justice Department, denouncing as “radical” a Fourth Circuit Court ruling rejecting presidential authority to seize and detain a civilian captured inside the U.S., asked the Circuit Court on Wednesday to rehear the case en banc, and to overturn it swiftly. The petition for rehearing in Al-Marri v. Wright (Circuit docket 06-7427) can be found at this link. It said that the decision “poses an immediate and potentially grave threat to national security.”
The case appears ultimately headed for the Supreme Court, whatever the Fourth Circuit does with it now.
Describing Ali Saleh Kahlah Al-Marri as “an Al Qaeda fighter” who entered the U.S. the day before Sept. 11, 2001, “to act as a ‘sleeper agent’ with the intent to commit war-like acts,” the petition argued that the panel ruling on June 11 “warrants swift reconsideration and repudiation.” Much of the government’s description of his background appears to have come from Khalid Sheikh Mohammad, the captured “mastermind” of the 9/11 terrorist attacks.
The panel decision “radically circumscribes the President’s authority to wage the ongoing military conflict against Al Qaeda and impairs his ability to protect the Nation from further Al Qaeda attack at home,” according to the document filed by U.S. Solicitor General Paul D. Clement.
In the 2-1 ruling, the panel barred military detention of any civilian captured inside the U.S., but the decision was explicitly limited to those who are in the country legally and have established connections here. Al-Marri, a Qatar national, was arrested at his home in Peoria, Ill., where he was attending Bradley University. The government was ordered to release him from military custody, but the Court also said he could be transferred to civilian authority to face criminal charges, subjected to deportation procedures, held as a witness for a grand jury investigation, or held for a limited period of time under the Patriot Act.
The panel majority also ruled that Congress has not taken away the legal rights of Al-Marri to challenge his detention, thus limiting the reach of the Military Commissions Act”s court-stripping provisions. It found he had a right of habeas corpus protected by the Constitution.
Al-Marri’s lawyers can reply to the government’s rehearing request only if the Circuit Court asks them to do so. It will take the votes of a majority of the Court’s 12 active judges to grant review before the full bench.
The case, the government’s petition said, “raises questions of exceptional importance concerning the authority of the President to detain alien enemy combatants in the ongoing conflict with Al Qaeda.”
“The panel majority’s construction of the [9/11 Resolution] leads to the absurd conclusion that when Congress authorized the use of military force to respond to the September 11 attacks, it did not intend to reach individuals identically situated to the September 11 hijackers, none of whom had engaged in combat operations against our forces on a foreign battlefield,” the petition declared.
At the conclusion of the petition, the Justice Department briefly argued that the Circuit Court had no jurisdiction over the case because of the court-stripping provisions of the MCA passed by Congress last October. “The scope of the MCA is an important question in its own right,” the Department said.
It urged the full Court to vacate the panel ruling, rehear the case then send it back to the District Court for dismissal for lack of jurisdiction.
The government petition put heavy stress on identifying Al-Marri with the “Al Qaeda agents who waged the deadly September 11 attacks.” It said that he was “identically situated” to those “Al Qaeda fighters,” and yet the Circuit Court decision “paradoxically” interprets the government’s authority to seize terrorists as applying to any suspected “enemy combatant” except those agents.
Al-Marri was seized in Peoria in December 2001. He was not turned over to the military until June 2003, when President Bush designated him an “enemy combatant.” He has been held since then at the U.S. Navy brig in Charleston, S.C. He has been seeking his release in a habeas challenge since July 2004.
Military detention of Al-Marri was defended by the Justice Department filing on the basis of the 9/11 Resolution that Congress passed after the 2001 terrorist attacks, and on the president’s “inherent authority” under the Constitution’s Article II to “detain enemy combatants in the context of an armed conflict.” It also contended that, because Congress had passed the Resolution supporting a presidential response to the Sept. 11 attacks, “the President was acting at the zenith of his powers” under the Supreme Court’s decision in 1952 in Youngstown Sheet & Tube v. Sawyer..
The petition asserted that the Supreme Court and the Fourth Circuit Court already have upheld presidential authority to seize and detain even U.S. citizens who are suspected of terrorism, and thus the panel decision in Al-Marri’s case directly conflicts with those rulings in barring the military detention of a non-citizen. The Supreme Court decision it cited was Hamdi v. Rumsfeld in 2004, and the Fourth Circuit ruling was Padilla v. Hanft in 2005. “The panel decision in this case cannot be reconciled with Hamdi and Padilla,” the petition said.
