Civil Liberties

4th Circuit Upholds Due Process Rights of 'Enemy Combatants'

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The U.S. Court of Appeals for the 4th Circuit, widely perceived as the most pro-government federal appeals court, has ruled against the Bush administration's position that the president has the authority to detain indefinitely anyone he unilaterally identifies as an "enemy combatant." Since Congress has not suspended the writ of habeas corpus, a three-judge panel of the 4th Circuit said, the administration has to either charge Ali al-Marri, a legal U.S. resident who has been held at the Navy brig in Charleston, South Carolina, since June 2003, or let him go.

A PDF of the opinion is available here. Harvey Silverglate's January 2005 reason essay on detention of "enemy combatants," both within the U.S. and at Guantanamo Bay, is here. My columns on the subject are here (June 2002), here (September 2002), here (June 2003), here (August 2003), here (July 2004), here (September 2005), here (December 2005), here (April 2006), and here (October 2006).

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  1. If you are a soldier and you are captured in combat and you have abided by all of the laws of war and committed no crime, you can be held indefinitely. Forever. No due process nothing. You are stuck in prison for the duration of the conflict until your home country can get you home. John McCain was in prison for seven years and North Vietnam was perfectly in right to keep him that long. Now, they were not in the right in the condition they kept him but that is a different subject.

    The 4th Circuit is now saying that if you are a terrorist. If you are someone who is not wearing a uniform or abiding by the laws of war and on a battlefield doing mischief, you cannot just be summarily executes, as has been the practice since time in memorial, you cannot even be held indefinitely like a legitimate EPW, but instead you are entitled to the gold plated rights of due process due any person caught sticking up a liquor store and have a right to be freed if the capturing government cannot prove beyond a reasonable doubt using the rules of evidence that you are a terrorists. Basically, terrorism is the only legitimate and certainly most advantageous form of warfare these days. Why be a soldier and risk being a POW when you can be a terrorist and hire Jonny Cochran and get the OJ trial?

  2. Three cheers for habeas corpus and the rule of law!

    …and let’s hope the Bush Administration’s incompetence doesn’t put any dangerous terrorists on the street.

  3. John’s got it exactly right. Why give terrorists more rights than uniformed combatants who try not to attack civilians?

  4. John, Mark–why assume that everyone labeled “terrorist” by the government actually is one?

  5. “Why give terrorists more rights than uniformed combatants who try not to attack civilians?”

    I think that’s a little imprecise. I think what they’re saying is that people being held under the heading “terrorist” have a right to challenge their detention.

    …my understanding is that in this case, for instance, there is substantial evidence suggesting that the guy was a terrorist. This ruling, as I understand it, just says that the government can’t brand him a terrorist arbitrarily.

    It doesn’t look to me like anyone’s giving terrorists any rights–if the guy’s a terrorist, they can lock him up.

  6. “Why give terrorists more rights than uniformed combatants who try not to attack civilians?”

    Because it’s very easy to distinguish a soldier in uniform, whereas if you extend the POW rules to citizens, you can basically just make shit up about people and hold them indefinitely.

  7. If the Bush Admin. has something against this guy, why are they afraid to charge him?

  8. Of course, had either John or Mark bothered to read the opinion, they night have seen what the ruling actually said. Basically, it says that since the burden of proof that an person is an enemy combatant is on the government not on the defendant to rebut.

  9. The 4th Circuit is now saying that if you are a terrorist. If you are someone who is not wearing a uniform or abiding by the laws of war and on a battlefield doing mischief, you cannot just be summarily executes, as has been the practice since time in memorial, you cannot even be held indefinitely like a legitimate EPW, but instead you are entitled to the gold plated rights of due process due any person caught sticking up a liquor store and have a right to be freed if the capturing government cannot prove beyond a reasonable doubt using the rules of evidence that you are a terrorists.

    Bullshit. This decision doesn’t say anything like that.

  10. For fuck’s sake, if you hold someone for crimes against the US, have the decency to charge them and try them. If found guilty, roast his ass, but you can’t just sit there holding people indefinitely. We’re better than North Korea, let’s act like it.

    And if they’re an enemy combatant, there must be a definable end to a war in which you can return them to their country upon cessation of hositilities. You can’t have it both ways and that is what the court appears to be saying.

  11. No, John. No, Mark. The Bush administration may still hold people as POWs under this ruling, and treat them as POWs. They can even put them in front of a regularly constituted tribunal and charge them with violating the rules of warfare. If found guilty, they can be sentenced.

    The only thing this ruling says is that they can’t jump over those steps, and hold people indefinitely without trial on the government’s say-so.

  12. “For unlike Hamdi and Padilla, al-Marri is not allegedto 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.”

    From the opinion. The court distinguishes this guy from Hamden and Padia because those two were associated with a government “the Taliban” at war with the U.S., whereas this guy is simply a terrorist and not associated with the military arm of a government. Again, I am left with the impression that you are better off being a terrorist than a soldier.

    What the court held is that since this guy is an agent of Al-Quada and not a government, he is not an “enemy combatant” within the meaning of the Geneva Conventions. Instead, the court found that the U.S. war against Al-Qauda is covered under common article 3, which basically leaves the treatment of those captured to the domestic law of the capturing party. Since this clown is an alien caught on U.S. soil with significant contacts to the US, he is therefore entitled to due process under U.S. law.

    If you read the opinion and think it through, it means that if you are a terrorist and are caught overseas, you are probably screwed because you don’t have no contacts with the US and are not entitled to due process. But, if you can get within the US borders like this guy did, then you are golden and entitled to due process like any other criminal. Not a tribunal but due process gold plated OJ trial kind of thing. That seems nuts.

  13. “If you read the opinion and think it through, it means that if you are a terrorist and are caught overseas, you are probably screwed because you don’t have no contacts with the US and are not entitled to due process.”

    Me no have contacts? That’s unpossible!

  14. This is beautiful reading…

    “This memorandum is too little too late.”

    “We are not at liberty to interpret statutes so as to make them meaningless.”

    Priceless. The government got a right royal spanking, here.

  15. Again, I am left with the impression that you are better off being a terrorist than a soldier.

    You are better off being an accused terrorist than a confirmed soldier. If you cannot fathom the definition of the word “accused,” then kindly stop pretending to know what the hell you’re talking about.

  16. “You are better off being an accused terrorist than a confirmed soldier.”

    God knows I wouldn’t want to be tortured, but if you asked me if I’d rather be in John McCain’s shoes or Charlie Manson’s, I don’t think I’d want to be the guy that’s still in the slammer.

    So what is the penalty for conspiring to murder American civilians with Hydrogen Cyanide anyway?

  17. John,

    If you plead guilty to stealing a guy’s wallet in court, you go right to the sentencing phase in front of a judge. If you hide an cover up your guilt, you get a trial by jury, pre-trial hearings, appeals of your conviction, and all sorts of things. Would you have it any other way?

    Same thing here – the government has to jump through hoops to prove the guilt of people who do not openly admit to being the enemy, while the process is much simpler for those who openly proclaim themselves to be our enemies by fighting openly for a foreign military.

    The superficial injustice of this situation gets worked on the back end. The guy who pleads guilty to stealing the wallet gets probation, while the guy who gets convicted is given a longer sentence.

    The POW gets held until the end of the conflict, while the p.o.s. (heh) gets sentences to life, or death, or some number of decades, in military confinement. That doesn’t sound “better off” to me.

  18. “You are better off being an accused terrorist than a confirmed soldier. If you cannot fathom the definition of the word “accused,” then kindly stop pretending to know what the hell you’re talking about.”

    It is very easy to confirm someone as a soldier. They are wearing a uniform and on a battlefield. Confirming someone as a terrorist is a different story. They do not wear uniforms and they blend into society. Under this decision, a known terrorist, can be caught in Franfurt and turned over to the U.S. and basically held indefinitely without due process. If the terrorist is smart and can get to the US, he can only be held if the government can prove him guilty of something. It is not even clear from the opinion if being associated with a terror group is good enough in that case. The court awefully close to the idea of every terrorist, on US soil at least getting a free bombing before the government can detain him or at least a free conspiracy to do so. That is a serious problem with the opinion. If you are not smart enough to understand that, please stop pretending to be anything but a troll. Smugness doesn’t make up for ignorance.

  19. “They do not wear uniforms and they blend into society.”

    Hey, me too! And my Mom!

    Hence, the restrictions on the government’s power.

  20. “The POW gets held until the end of the conflict, while the p.o.s. (heh) gets sentences to life, or death, or some number of decades, in military confinement. That doesn’t sound “better off” to me.”

    Only if they can prove it. This guy at least gets a shot in court at walking away. This case goes to the heart of the problem with dealing with terrorism. Common article 3 was meant to deal with insugent fighters in wars of liberation. It was never intended to cover international terrorist groups. Since he is not a citizen, I don’t think this guy should be entitled to anything beyond a showing that he is a member of a terrorist group before a competent tribunal.

  21. “Hey, me too! And my Mom!

    Hence, the restrictions on the government’s power.”

    You are a citizen Joe. Even I would not argue that a citizen detained on US soil is not entitled to full due process.

  22. Yo mamma’s so inconspicuous, she looks just like a terrorist!

  23. “If the terrorist is smart and can get to the US, he can only be held if the government can prove him guilty of something.”

    I just can’t get past this idea that even if the government doesn’t have any evidence that a man is a terrorist, the government should be able to hold him indefinitely because he’s a terrorist.

  24. John:

    So your point is that we need a system for the government to hold and punish people who they can’t prove are actually terrorists?

    Last I read it, the Constitution still thought “only if the can prove it” was a good standard.

  25. “They do not wear uniforms and they blend into society.”

    It’s easy to tell if a man is a terrorist…

    1) Is he a Muslim?
    2) Is he a foreigner?
    3) Does the government say so?

    …then he’s a terrorist!

    You guys are getttin’ all silly with this “evidence” thingy. That may have worked all fine and dandy back in the 1700’s, but we’re in the 21st century now. …this is asymmetrical warfare!

    *puking*

  26. “Habeas Corpus” has been detained in our facilities for several years now. Calling on him will not help you.

    Oh, and you’re all on our list. Some of you have been on our list for quite some time.

  27. Long-time lurker coming out of the ether for the first time to say, wow, what a loaded title for this posting. How about something that actually tracks the 4th Circuit decision, like “4th Circuit Upholds Due Process Rights of Civilians – Even Those With Alleged Evil Intent”? Not racy enough?

    The court did NOT address the due process rights of enemy combatants. Because, as it found, it wasn’t faced with one. This was a guy legally in the US who was arrested in Peoria and has been held in military jail in South Carolina since 2002 without being charged. He is alleged to have significant connections to al Qaeda, but the government made no allegation of (1) citizenship or other affiliation with a country at war with the US; (2) seizure on or near a battlefield in which US forces or its allies were engaged in combat; (3) presence in Afghanistan during the conflict there between US forces or its allies and the Taliban; or (4) direct participation in hostilities against the US or its allies.

    Given all that, what the court said is, this guy might be guilty of the worst of what the government alleges, but he’s a civilian, so the military has to keep its hands off and the government must bring its charges against him in the civilian courts.

    “For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely.” However unappealing the individual in this case might be, how can anyone who respects the constitution disagree with that?

  28. Im in yr contry, enjoin’ yer civil librtees!

  29. “Only if they can prove it.”

    John, do you want the government to have the power to throw people into black holes forever without the possibility of appeal when they CAN’T prove that they’ve done anything wrong?

  30. Hooray, Constitution! Hooray, beer!

  31. “You are better off being an accused terrorist than a confirmed soldier.”

    You are also better off being an accused serial killer, baby rapist, deer fucker and canibal than you are being a confirmed soldier. What’s the point?

  32. My point being that the term “terrorist” doesn’t scare me like it apparently scares everybody else. They need to be dealt with severely, but no more severely than my worst-nightmare person above.

  33. John, so based on what you’re saying, you think it was wrong for the US govern. to hold Padilla, but correct to hold Ali al-Marri? If that’s the crux of your argument, why are you talking about terrorists and POWs?

  34. John’s argument here is pretty simple and entirely fallacious. Of course the government should be able to hold terrorists, nobody’s arguing that they shouldn’t. Problem is, accusing someone of being a terrorist DOES NOT make them a terrorist.
    Our government has a terrible track record when it comes to figuring out who the bad guys are.
    Remember arar? http://www.cbc.ca/news/background/arar/

    and since the current administration has very clear motive to lie about who’s a terrorist (because they can’t find any real ones but they need to show that the threat is credible in order to justify their ‘global war on terror’

    see also:
    http://thephoenix.com/article_ektid17389.aspx

    John, do you really think that the people should be held indefinitely on the mere suggestion that they might be associated with terrorist organizations? Are you seriously arguing against due process or are you just trolling? If you have reason to believe somebody is a terrorist, reason enough to need to incarcerate them, then that reason can be presented in the form of evidence.

  35. The opinion, including dissent, is 89 pp. and very complex. Having given it a quick read and looked at some of the other “quick read” commentary, my first reaction is that Orin Kerr at Volokh is right that the opinion will be reversed either by the 4th Circuit en banc or by the Supreme Court.

  36. To echo what everybody else said, this is about the burden of proof. I have no problem locking up terrorists for a long, long time. But if somebody says “Hey, I’m not a terrorist! I’m just some Afghan farmer who got handed over by a warlord looking for a bounty!” then I want some sort of process to examine the evidence.

    It has been observed by many people that some of the guys released from Gitmo later showed up on a battlefield. You know, that doesn’t surprise me at all. The executive branch is most likely to screw up when its decisions aren’t subject to review by independent authorities. Granted, the judicial branch can screw up too, but that’s why there are two opposing parties with representatives arguing before the judge, and that’s why the judge is supervised by an appellate court.

    I’m completely unsurprised when I learn that some of the guys held at a lawless prison are innocent, some of the guys released were in fact guilty. That’s what happens when the executive branch operates without supervision.

  37. The decision seemed close to saying
    that there is no ‘war’ on terror
    since there is NO country to fight.

    Could terrorists flood our courts?
    Extremist civil disobedience as a weapon!
    The terrorists turn one of our strengths,
    our judical system, into our own noose.

  38. Is DJ of Raleigh
    actually trying to say
    that we can’t let terrorists
    have their day
    in court because
    they’ll clog the works?
    You could say that
    about any jerks.

  39. Well, marijuana offenders are already fighting to bring down our system with all of their “due process” nonsense.

    Ah,now I see the connection between marijuana and terrorism!

  40. It’s nice to know we still have an American court in America; one that can write this and doesnt turn into pissy pussy fascists at the drop of the word “terrorist”:

    “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.”

  41. At the risk of gilding the lily here, the purpose of the constitutional protections (such things as habeus corpus, etc.) are to protect me, and you.
    Not ‘terrorists’.
    We have laws against terrorism that protect us against terrorists, and we should use them. Murder, and bombing and poison gas and stuff are bad, but they are already against the law, and conspiring to use them is also against the law. All the government needs to do is show probable cause that this guy was doing any of these things.
    If they don’t have it they have to let him go. That’s (thank goodness) what the court says.
    To give Bush the ability to label someone an ‘enemy combatant’ without probable cause is to endanger me. And you. And everyone on this list. It doesn’t protect us. It endangers us.

    Bush’s view of warfare is dangerous to you and me. Maybe he won’t use it against his (political) enemies. This time. Or this president. But in our lifetimes we’ve had presidents (or their wives–look what happened to the White House travel agents, if anybody remembers that episode) use the government’s resources to go after their political enemies numerous times, so no, we can’t trust them.
    The Barons recognized that when they forced King John to adopt the Magna Carta at Runnymede, and they weren’t wrong then and the 4th Circuit Court is still right. Grumble…

  42. POWs as a rule aren’t going to be tried in a court during or following the end of conflicts. Someone labelled an “unlawful enemy combatant” or a “terrorist” or some such is apparently labelled such as a means to facilitate the process of eventually trying them. That’s in part why the latter want to secure whatever due process, etc. rights that they can.

  43. God knows I wouldn’t want to be tortured, but if you asked me if I’d rather be in John McCain’s shoes or Charlie Manson’s, I don’t think I’d want to be the guy that’s still in the slammer.

    I don’t think that would be an easy decision to make, the brutality of the NV prison camps is pretty well documented. If you happened to be one of the prisoners that was released, well okay. But there’s a whole bunch of them that never came back. And some of the one’s who did come back have body parts that don’t work quite right.

    On the question de jour, I would think that even if one was to fully agree with John one would have to at least be willing to concede that this guy has the rights of an American since he is one.

    Yes, I know you can get semantic and say he’s not really an American, only a legal resident. But, if he were on trial for burglary, he would be entitled to…….

  44. It sounds to me like the court made the right decision. Terrorists arrested on US soil have always been dealt with within the normal civilian criminal justice system.

    If the government had arrested Timothy McVeigh, and decided to hold him indefinitely without a trial or only given him a military tribunal, that would have been clearly unconstitutional. The fact that jihadist terrorists have a different nutjob ideology doesn’t necessarily out them in a different legal category.

    As for the argument that al-Marri et. al. are not US citizens and therefore can be held without a trial if accused of terrorism; I ask: For what other crime is this the case? If a foreign citizen is accused of murder, rape, organized crime involvement, theft, assult, or any other crime; that person would have the right to a trail.

  45. Lard ’em with bacon, sew ’em into fresh pigskins and then bury ’em alive in dog $hit.

    That’ll be a REAL message.

  46. “Lard ’em with bacon, sew ’em into fresh pigskins and then bury ’em alive in dog $hit.”

    so the REAL message is that we don’t know how to bury people without covering them in meat, offal and pet waste?

    what kind of fucking message is that? it makes us sound like retards!

  47. Apparently, the REAL message is, “We hate you for being Muslim.”

  48. John
    . . . Even I would not argue that a citizen detained on US soil is not entitled to full due process.

    Hasn’t the Bush admin argued just that? (And had it denied, fortunately.)

  49. Man, I miss the good old days of WWII:

    Caught fighting on the battlefield? Yes
    Wearing uniform? No

    Therefore SPY

    Therefore BULLET TO BRAIN

    End of story, end of problem. As sad as that is, this would still be far better than the treatment our enemies give our soldiers, implying that we would still hold the moral high ground in such a case. Yikes!

  50. you are entitled to the gold plated rights of due process due any person caught sticking up a liquor store and have a right to be freed if the capturing government cannot prove beyond a reasonable doubt using the rules of evidence that you are a terrorists.

    Oui, Oui!

  51. Bob, whatever the merits of that approach in WWII, the War on Terror is very different from WWII. We’ve been told that it could go on forever, and that the entire earth (including all of the US) is the battlefield. Any person (including a citizen) caught in any place (including US soil) at any time could be declared an “enemy combatant out of uniform” and then be denied the right to challenge that accusation.

    That’s far too much power to grant to ANY politician.

  52. “…and let’s hope the Bush Administration’s incompetence doesn’t put any dangerous terrorists on the street.”

    as opposed to safe terrorists?

  53. http://www.freerepublic.com/focus/news/934434/posts?page=5

    Interesting timeline on Ali before and after arrest

  54. “My point being that the term “terrorist” doesn’t scare me like it apparently scares everybody else. They need to be dealt with severely, but no more severely than my
    worst-nightmare person above.”

    Lamar, it’s far too late in the game for you to start getting all sane & reasonable on us.

  55. “Man, I miss the good old days of WWII:

    Caught fighting on the battlefield? Yes
    Wearing uniform? No

    Therefore SPY

    Therefore BULLET TO BRAIN”

    Bob, can you document examples of spies who were summarily executed by American authorities in WWII?

    The Geneva Conventions exist to define the rights of POW’s. Everyone who doesn’t fall into that definition is subject to the criminal law effective in the zone where they are captured, whether civilian or military. The historical examples of summary exeucutions for spies come from polities with extremely weak traditions of the rule of law.

    People seem to have developed this idea that the Geneva Conventions divide persons into three categories – POW’s (A), common criminals (B), and persons for whom there is no law and to whom we can do whatever we want (C). There’s no basis for the belief in (C). The closest you can get is persons caught out of uniform in a war zone, but that’s actually (B) – with the only difference being that getting caught in a war zone or in a zone under martial law potentially subjects you to military justice.

  56. Actually, Bob, the German sabateurs who were dropped off by submarine in the United States received military trials.

  57. “Caught fighting on the battlefield?”

    Unfortunately, since there is no battlefield or uniforms, the modern equivalent of “caught on the battlefield” ranges from “caught planting a bomb” to “having breakfast with the kids.”

  58. the usa never signed the Geneva Convention in regard to Mercenaries.

  59. In the heat of battle, be it an offensive or retreat, all armies have been forced to “take no prisoners” and many have killed the wounded who might still a threat. War is not pretty. ~ Why can’t all wars be peaceful? ~

  60. “””the usa never signed the Geneva Convention in regard to Mercenaries.””””

    What would Blackwater USA say?

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