Al-Marri and the power to imprison U.S. citizens without charges

By Glenn Greenwald

17/07/08 "Salon" -- - Of all the constitutionally threatening and extremist powers the Bush administration has asserted over the last seven years, the most radical -- and the most dangerous -- has been its claim that the President has the power to arrest U.S. citizens and legal residents inside the U.S., and imprison them indefinitely in a military prison, without charging them with any crime, based on his assertion that the imprisoned individual is an "enemy combatant." Beginning with U.S. citizen Yasser Esam Hamdi (detained in Afghanistan), followed by U.S. citizen Jose Padilla (detained at Chicago's O'Hare International Airport), followed by Ali Saleh Kahlah al-Marri (in the U.S. on a student visa and detained at his home in Peoria, Illinois), the Bush administration has not only claimed that power in theory but has aggressively exercised and defended it in practice.

The Bush administration's strategy of imprisoning these "enemy combatants" in a South Carolina military brig has (by design) ensured that subsequent legal challenges are heard by the Fourth Circuit Court of Appeals, the most right-wing judicial circuit in the country. In September, 2005, a three-judge panel from that circuit issued a ruling in the Jose Padilla case (.pdf) that actually upheld the President's power to arrest and indefinitely detain even U.S. citizens arrested on U.S. soil without charging them with any crime -- a decision which the U.S. Supreme Court refused to review (because the Bush administration, after 3 1/2 years of lawless imprisonment, avoided that review by finally charging Padilla with a crime), thus leaving that Padilla decision as still-valid law in this country.

Citing the allegation that Jose Padilla had "served as an armed guard at what he understood to be a Taliban outpost" in Afghanistan (Dec. at 7), the 2005 Padilla decision held that "the President is authorized by the AUMF to detain Padilla as a fundamental incident to the conduct of war." The court rejected Padilla's claim that -- as a U.S. citizen who was "captured" on U.S. soil -- he was entitled under the Constitution to be charged with a crime and tried in a civilian court. Under Padilla, the President thus has the power to imprison even U.S. citizens in a military brig indefinitely, merely be alleging that they are "enemy combatants" who have "taken up arms against the U.S."

Yesterday, the full Fourth Circuit appellate court, in a 5-4 ruling (.pdf), expanded that Draconian power even further. This ruling was issued in al-Marri's case, whose extraordinary plight I've previously written about in detail. Al-Marri is a citizen of Qatar who, in 2001, was in the United States legally, on a student visa. He was a computer science graduate student at Bradley University in Peoria, Illinois, where he had earned an undergraduate degree a decade earlier. In Peoria, he lived with his wife and five children. Shortly after the 9/11 attack, al-Marri was detained as a material witness and subsequently charged in a civilian court with a variety of crimes relating to credit card fraud and making false statements as part of the 9/11 investigation. He vehemently denied those accusations, and -- in June, 2003 -- he was preparing for his criminal trial, scheduled to begin the following month.

Suddenly -- a month before his trial was to begin -- George Bush declared him to be an "enemy combatant" and ordered the U.S. military to seize him from civilian officials and transfer him to military custody. There -- in a South Carolina military brig -- al-Marri has remained for the last five years, with no criminal charges having been brought against him and no meaningful opportunity to contest his guilt in a court of law. He has been kept in solitary confinement and denied any contact with the outside world other than his lawyers.

The Fourth Circuit's 5-4 ruling yesterday upheld the President's authority to detain al-Marri in a military prison as an "enemy combatant." What makes the ruling so striking is that -- unlike Hamdi and Padilla -- not even the Bush administration claims that al-Marri fought alongside the Taliban, fought against U.S. forces, or had even been to Afghanistan. He's simply a civilian accused by the President of being involved in a terrorist plot. As one of the seven separate opinions issued as part of the court's ruling yesterday noted [p. 28]:


The Judge who was the swing vote in this ruling (Judge Traxler) -- whose opinion became the court's binding decision -- described, with remarkable casualness, the power that the al-Marri court was therefore vesting in the President [Dec. at 70]:


Thus, the President can order anyone in the U.S. imprisoned in a military brig as an "enemy combatant" -- even if they have never fought on a battlefield or with a foreign power against the U.S. Rather, mere accusations by the President of "terrorism" are sufficient to justify the indefinite incarceration of such an individual as an "enemy combatant," who is then denied basic Constitutional guarantees.

To say that such individuals can be held "for the duration of relevant hostilities" means, of course, that such individuals can be imprisoned by the President in a military brig not just for years but for decades [Dec. at 62]:


Most critically of all -- as two of the opinions separately recognized, including the one from the swing Judge (Traxler) whose opinion was the only one to attract five votes and is therefore the court's opinion -- this decision applies every bit as much, and to exactly the same extent, to U.S. citizens on U.S. soil as it does to non-citizens (such as al-Marri) who are in the U.S. legally. From Judge Traxler's opinion [Dec. at 98]:


And from Judge Gregory's [Dec. at 100]:


So, then, the President has the power to imprison in a military prison even U.S. citizens inside the U.S. -- who are pure civilians, having not been anywhere near a battlefield -- indefinitely and without having to charge them with any crime.

The same court yesterday, also by a 5-4 decision (with Judge Traxler switching sides), went on to rule that, following the Supreme Court's Hamdi decision, even so-called "enemy combatants" are entitled to some minimal, indeterminate amount of "due process" to contest their "enemy combatant" designation (the Bush administration had contended in Hamdi that U.S. citizens designated as "enemy combatants" were entitled to no process at all). The court ruled yesterday that al-Marri -- despite being imprisoned for almost seven years -- has thus far been denied even the minimal process he was due under Hamdi.

Under this ruling, the minimal process due to al-Marri (and, by extension, to any U.S. citizen arrested as an "enemy combatant") is effectively the same as what the Hamdi court accorded to actual combatants captured on a foreign battlefield, and what the Supreme Court in Boumediene recently accorded to non-citizens held at Guantanamo. Thus, while ruling that individuals in al-Marri's position are entitled to some basic procedures to view the evidence against them and offer counter-evidence, the court ruled that those rights are far, far less than the Constitution guarantees generally before the Government can imprison people inside the U.S. The basic Constitutional rights of a citizen against executive imprisonment can therefore effectively be circumvented simply by having the President declare someone an "enemy combatant."

At least with regard to individuals detained on U.S. soil, the Bush administration has exercised these definitively tyrannical powers in only a handful of cases -- two U.S. citizens (Hamdi and Padilla) and one non-citizen in the U.S. legally (al-Marri). But what the administration has done is asserted those powers generally, and embarked upon a strategy to ensure that they are institutionalized. Yesterday's ruling -- likely (though not certain) to be reviewed by the U.S. Supreme Court -- is but another step down the path of un-American radicalism we've been traversing.

The dangers of empowering the President to order the U.S. military to arrest U.S. citizens inside the U.S. and indefinitely imprison them as "enemy combatants" -- and thereby deny them core Constitutional protections -- is manifest. It's literally hard to imagine a more un-American power than that. Even Justice Scalia, dissenting in Hamdi, warned that allowing the President to hold U.S. citizens as "enemy combatants" is to vest the President with the ultimate power of tyranny, exactly what the Founders most wanted to prevent:

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.

George Bush will likely leave office with this particular tyrannical power infrequently exercised but nonetheless vigorously asserted, defended, and close to established. This is yet another step in the creeping extremism of the last seven years -- like torture and warrantless eavesdropping, this power (allowing the President to imprison U.S. citizens in military brigs with no charges) is one that was until quite recently inconceivable, but is now a defining part of how our Government operates.