On June 11, 2007, the Fourth Circuit Court of Appeals decided the case of al-Marri v. Wright. In this case the Fourth Circuit held that a suspected al Qaeda terrorist who was seized in the United States could not be held in military detention. A roundtable of experts has examined the opinion and has agreed to comment on the importance of the decision, and what it might portend for the future. Bios for the experts that have commented on the case can be found below. Participants in the debate include George Washington Law School Professor Orin Kerr, University of Chicago Law Professor Richard Epstein, former federal prosecutor Andrew C. McCarthy, former Deputy Attorney General of the United States George Terwilliger, Duke Law School Professor Erwin Chemerinsky, and President and Dean of Franklin Pierce Law Center, John Hutson.

Questions and Answers:

Orin Kerr: I’m happy to kick off this online debate about the Fourth Circuit’s recent decision in al-Marri v. Wright. In this case, the Fourth Circuit held that a suspected al Qaeda terrorist who was seized in the United States could not be held in military detention. The government now has to charge al-Marri with a crime, deport him, or let him go. In this introduction, I want to explore what I see as the oddest part of the opinion as well as the major statutory puzzle raised by the case.

 To my mind, the oddest part of the al-Marri opinion is its conclusion that the government has no special authority to detain alien al Qaeda terrorists who enter the United States to launch terror attacks against us. According to the opinion, alien terrorists get the same rights as you and me: the government can only detain them if it charges them with a crime.  

I think the U.S. Supreme Court pointed to a different result in its 2004 decision in Hamdi v. Rumsfeld, which involved a United States citizen captured and believed to have been fighting with the Taliban. The Supreme Court concluded that Hamdi could be detained as an enemy combatant so long as he was given the appropriate process needed to determine his status.  

I would think al-Marri should be treated the same way as Hamdi. According to the Fourth Circuit, however, al-Marri cannot be detained like Hamdi because members of al Qaeda cells are not military fighters for an “enemy nation.”  I don’t find this persuasive: the AUMF broadly authorizes force against “nations, organizations, or persons” behind the 9/11 attacks. I think it’s too narrow to limit the authority to detain under the AUMF to agents of enemy nations. al-Marri’s strongest argument that he should be treated differently from Hamdi comes from Section 412 of the USA Patriot Act. The statute was passed shortly after the AUMF, and it seems to contemplate a fairly limited set of government powers to detain alien terrorists in the United States.

At the same time, it’s not clear how the Patriot Act authorities interact with other government powers. The Patriot Act gives the Attorney General the power to detain terrorist suspects, but it doesn’t explicitly mention powers of other parts of the Executive Branch. Should this be read to implicitly deny the military rights to detain terrorist suspects under the AUMF? The Fourth Circuit thought so, but I’m not so sure. I would guess that future litigation in al-Marri will focus heavily on this question.

Richard Epstein: I think that Orin is right on the money in insisting on the possibility of a military detention for al-Marri. Orin takes the view that he should be treated as a “person” who could be detained under the AUMF so long as he receives some (unspecified) process that determines that he rightly falls into the class of individuals who have terrorist connections with al Qaeda connections. Left open on this view is exactly what sort of process is required and in what forum, military or civilian. My own sense is that we should probably be content with a standard that looks to substantial grounds or reasonable suspicion of this connection, where the initial burden of production lies on the government, with some opportunity to rebut the evidence.

What is so troubling about the Military Commission Act is that the only process given in the case was the declaration by the President that al-Marri was an enemy combatant associated with al Qaeda, with no independent oversight and no chance to respond. I was one of the many academics who signed a brief on behalf of al-Marri (Margaret L. Sanner, Counsel of Record), because of the shabby processes that have been accorded to him do not meet any conceivable constitutional standard for indefinite detention. That brief made both a statutory and a constitutional argument. The constitutional argument was that the procedures offered were hollow. The statutory argument was ingenious, because it took the words “has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Our brief adopted, self-consciously, that canon of construction that “narrowly construes statutes to avoid” constitutional difficulties, in this instance the Suspension Clause problem. The gist of the statutory argument was to bifurcate the determination into two halves, so that there is first some determination to detain followed by a second and “proper” hearing to see that the first one was correctly made. 

Judge Motz accepted this argument, but did so on the ground that the plain meaning of the statute required this interpretation, which seems fanciful at best. I think that the best approach is to give the statute its ordinary meaning, which (I fear) allows a single stroke of the pen to incarcerate someone indefinitely. The use of the words “such determination” suggests the unitary procedure. Once that is done, then I think that the constitutional infirmities of this scheme under the Due Process Clause are so manifest that the statute becomes a nullity on this point for citizens and aliens alike.  

The sad point about constitutional interpretation is that so much of it has been reduced to code. Using the avoidance canon is respectable under current law, as in our brief. But finding plain meaning in statutes that are anything but plain is the wrong way to avoid constitutional decisions. At least the Ashwander rule of interpretation is candid in its use of clever devices to sidestep constitutional decisions. The al–Marri decision is not. I rather wish we had won on the larger issue, so that the matter does not go back yet again for some more Congressional clarification.

Andrew C. McCarthy: I start from the premise that in a time of a war launched by a massive attack on U.S. territory by an enemy which has, repeatedly, threatened a reprise (threats our intelligence community indicates al Qaeda is working energetically to make good on), and under circumstances where the Commander-in-Chief is acting with the support of a sweeping use-of-force authorization from Congress, there is no question that the President is authorized to detain unlawful combatants, whether or not they are American citizens. I also agree with Orin that al-Marri can't be squared with Hamdi.  

What I find disturbing (among other things) is the short-shrift by which it was assumed that simply because al-Marri was in the United States lawfully, he necessarily had the same rights as a U.S. person. I do not believe al-Marri had the same entitlements as Hamdi, who was an American citizen. While the Hamdi opinion did not provide much guidance about the quantum of due process to which an alleged American citizen combatant would be entitled in a habeas proceeding, it intimated that such a process would be very deferential to the Executive Branch--as it should be while the war runs hot.  

Consequently, with due respect to Professor Epstein, I don't see why the process al-Marri received was inadequate. al-Marri was in the United States on a student visa--a temporary authorization which evinces neither an intention on the part of the alien nor a commitment by the United States that the alien has become a full-fledged member of our body politic. Judge Motz's opinion assumed that any lawful alien who is present inside the United States is just as fully vested with constitutional rights, including habeas corpus protections, as an American citizen. I don't believe that is the case. In Verdugo-Urqidez (1990), the Supreme Court reiterated the instruction of Eisentrager (1950) that "[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society." That does not suggest to me that the entitlements of a visa holder (who plainly has not yet identified himself with our society) are the same as those of a permanent resident, much less a citizen.  

To be sure, there are circumstances when even illegal aliens present in our territory are accorded some constitutional rights -- although the Supreme Court indicated in Zadvydas (2001) that such rights might be qualified or negated in cases of "terrorism or other special circumstances." And lawful permanent resident aliens are deemed to be "U.S. persons"--those who, like citizens, are sufficiently woven into our national fabric to be considered fully vested. But in between are shades of gray. Resolving them depends on a variety of factors, including the right being claimed, the immigration status of the alien, and the factual context. It is not clear to me, and nothing in the panel majority convinces me, that an alien with temporary lawful status has constitutional habeas protection equal to that of an American citizen, in wartime, and under circumstances where the nation has been attacked and the enemy's modus operandi is to embed terror cells in our territory. (And while Prof. Epstein hopes this case does not end up sending combatant issues back to Congress, I must say I prefer that Congress, rather than the courts, make these judgment calls since it is accountable to the citizens whose lives are at stake.) I do not mean to suggest that such an alien has no protection. But I don't think the matter is settled, and I believe that any constitutional habeas protection al-Marri has, if any, is inferior to the entitlement of Hamdi, the American citizen.  

This is important because, again, the Hamdi Court indicated an American citizen combatant's rights would be satisfied by a process, including perhaps a combatant status review tribunal that was deferential to the Commander-in-Chief. Concededly, al-Marri did not get a CSRT; but it is incorrect to say, as Professor Epstein maintains that "the only process given in the case was the declaration by the President that al-Marri was an enemy combatant associated with al Qaeda, with no independent oversight and no chance to respond." To the contrary, the panel majority notes that, in 2004, the government filed an answer to al-Marri's petition in the district court, laying out in some detail that al-Marri had been trained in Qaeda camps, answered directly to Khalid Sheikh Mohammed, and met personally with bin Laden himself, volunteered for a martyr mission, was sent to the U.S. by the terror network as a sleeper, met with a financier while here to receive funding for a computer which he was to use to disrupt the U.S. financial system, and gathered both information on poison chemicals (under circumstances where we are aware that al Qaeda seeks to carry out WMD attacks) and false identification to facilitate his activities. Al-Marri, after being given access to counsel, was expressly invited by the district court to file a rebuttal to the government's presentation. He declined to do so, simply submitting a conclusory assertion that he was not an enemy combatant. I think that was more than adequate due process under the circumstances. 

John Hutson: I'd like to approach the issue from a somewhat different viewpoint. I don't think al-Marri is a particularly important case. It has some provocative dicta that people have understandably latched on to, but I don't think the legal landscape will be affected much whether it stands or is overruled. Its only real importance is that it is symptomatic of more important issues.  

My concern in all of this is that we (i.e., the United States) have evolved into a posture where we have blurred our Article I and Article III responsibilities. Like most people, I was an early and vocal advocate of dealing with 9/11 as an act of war rather than a crime. That led into the AUMF and all the rest. I believe now, however, that the metaphor of GWOT has taken us down some ill-advised paths. Al-Marri is but one example.  Prosecuting the war should be different from prosecuting the criminal, whether he is considered to be a war criminal or a common criminal. The Commander-in-Chief can do lots of things, or not do lots of things, in his capacity as Commander-in-Chief that he can't do, or shouldn't do, as the leader of the free world. As Commander-in-Chief, he prosecutes the war. As President, he ensures that everyone in U.S. custody is treated humanely and justly and the international and domestic reputation of the United States is preserved.  

I agree that al-Marri's rights, whatever they are, are less than those of a citizen and probably less than those of a resident. For the sake of this discussion, I will concede we can detain an enemy combatant (a phrase that I never heard used in the course of my twenty-eight years in the Navy) until the cessation of the hostilities. Detention potentially for life would create its own problems in a conflict that some now refer to as "the new One-hundred Years War" but those issues would be more immediately diplomatic and political than legal. (I do believe that eventually with the passage of great time, they would become legal issues.)  

The problem is of wanting one's cake and eating it, too. Al-Marri is just one case, and a relatively unique one. There are 385 more cases in Gitmo and countless others in prisons around the world. In five years military commissions have successfully prosecuted exactly one case and that guilty plea is now suspect in light of more recent decisions. In my opinion, this is because we have confused the military function and the judicial function. Until we draw a bright line between those two very important responsibilities the al-Marris’, Khadrs’, Hamdans’, Hamdis’, and Rasuls’ will just keep coming.  

This is going to sound awfully political, and I don't mean it to be, but when Congress passed the AUMF in the immediate aftermath of 9/11, it had no idea what its authority would be used to justify in 2007 six years later. But I fault Congress now, not then. Congress now needs to step back into the fray (campaign year--fat chance) and redefine precisely what powers it wants to give to the Commander in Chief in light of our experience since 9/11 and the present reality. Some may believe that the President has pushed the envelope too far, but Congress never sealed the envelope.  

Erwin Chemerinsky: The President has no authority under the Constitution to hold a person apprehended in the United States without complying with the Constitution. The Fourth Circuit was exactly right that the government now has to charge al-Marri with a crime, deport him, or let him go. Indeed, authority for this view comes, in part, from the great liberal Justice Antonin Scalia in his opinion in Hamdi. 

There is nothing in Article II of the Constitution that allows the President to suspend the Fourth, Fifth, and Sixth Amendments. Yet, that is exactly what Andrew McCarthy would allow when he says there is "no question that the President is authorized to detain unlawful combatants, whether or not they are American citizens." By that view, could McVeigh and Nichol be held forever without trial as unlawful combatants? Indeed, what is to stop the President from holding any person forever as an enemy combatant? 

Moreover, where is the stopping point to the President's power as Commander-in-Chief? If he can suspend the Fourth, Fifth, and Sixth Amendments, does the President have the authority to punish speech that from his view endangers national security? Can he suspend elections that are mandated by the Constitution? 

Hamdi v. Rumsfeld is not on point. Hamdi deals with a person captured on a foreign battlefield. Those individuals always have been treated differently. But al-Marri is accused of a crime in this country and was arrested here. Quirin arguably authorizes military tribunals in such circumstances, though it is a very troubling precedent (as Justice Stevens recognized in Hamdan). More importantly, the Military Commission Act of 2006 does not require that the government ever convene military proceedings. A detainee, including al-Marri, literally could be held forever. 

I fail to understand why al-Marri should not be charged in court if he committed a crime. Is it that the standards of proof in a criminal case are too high? That would be a terrible reason for allowing detentions without trials. Is it the desire for secrecy? There are procedures, including under the federal CIPA law, to ensure secrecy. 

The Fourth Circuit got it exactly right and hopefully will be affirmed.

Richard Epstein: Erwin Chemerinsky and I agree on few things, but I am happy to second his general conclusions in this case insofar as they make it plain that the President as Commander-in-Chief cannot simply disregard the various provisions of the Bill of Rights as he goes about his business. There are of course all sorts of good reasons to think that the level of process, for example, that is "due" in domestic settings is different, that is more stringent, than those needed on a battlefield. But those distinctions are part of the original constitutional plan, not some ad hoc exception to it.

Lest there be any misunderstanding, surely the Bill of Rights protections apply to the actions of the President pursuant to an act of Congress, so that the separation of powers is not the only relevant matter of concern. On this score it seems evident that the stake of the government interest has to be a lot higher to deal with incarceration of persons than it does with surveillance or other less intrusive forms of behaviors, which necessarily call for a different evaluation under the Fourth Amendment's prohibition of unreasonable searches and seizures.  

But the stakes of the private interests in al-Marri are too high to be ignored. And even if Chemerinsky is not correct on the necessity for a civil trial in this case, on the ground that al-Marri could be shown to be an enemy combatant after all, the strength of his liberty interest requires that he get far better treatment on the question of enemy combatant status than is afforded him under the Military Commission Act, which places far too much concentrated power in Executive hands.

Orin Kerr: Erwin, can you explain a bit more why you think al-Marri is distinguishable from Hamdi? You write that "Hamdi deals with a person captured on a foreign battlefield . . . [b]ut al-Marri is accused of a crime in this country and was arrested here." Why is this distinction relevant? Is your view that it's relevant to whether the AUMF authorizes al-Marri to be detained? Or is your view that al-Marri has full due process rights upon entering the U.S. whereas Hamdi had only "partial" due process rights under the Matthews v. Eldridge balancing scheme? If the latter, what cases would you cite in favor of that view? You mention Justice Scalia's dissent in Hamdi, although of course that was just a dissent.

Erwin Chemerinsky: I think that there is a clear difference between a person apprehended in a battlefield during an armed conflict and a person residing in the United States, citizen or non-citizen, apprehended within the United States for allegedly illegal conduct while in this country. The former is covered by international law and the law of war. The latter is a matter of criminal law. What is the authority for this distinction? First, I think Milligan supports it. Milligan clearly says that for a person arrested in the United States, there must be a trial in court so long as the court is open. Second, cases generally have refused to extend the reach of the Constitution to actions of the American government outside the United States, even in non-war contexts. But there is no authority which says that the Constitution does not extend to someone lawfully in the United States for actions taken here. Third, as I expressed earlier, I see no stopping point to the government's position. If it can detain al-Marri without complying with the Constitution because his crime allegedly involved terrorism, can the government hold anyone who allegedly engaged in terrorism? Could McVeigh and Nichol have been held in this way? Could the President designate anyone and hold them with only the procedures al-Marri is receiving? This is nothing less than a claim that the President can suspend the Fourth, Fifth, and Sixth Amendments and there is no basis for that in Article II of the Constitution.

Richard Epstein: On this issue, I am not sure that Erwin is right. Let it be assumed that al-Marri entered under a visa that allowed him to do his studies in the United States and was thereafter recruited by al Qaeda to be part of a sleeper cell. Once he is detained, he is clearly entitled to a trial before some independent body to show that he has that military status. But I am hard pressed to think that Milligan or any other case would make it impossible for the United States to hold him as an enemy combatant subject to military justice if the right steps were taken. I also think that the case law which holds, as Erwin says, that U.S. constitutional guarantees do not extend overseas has to be rethought.  Americans overseas get its protections, so why not other persons when we have effective control over them? I don't see why our government should be free of restraint there. Accordingly, I would not give a huge bonus to anyone caught in this country who was an operative of a foreign nation. But we shall have to wait and see, perhaps as soon as next term, as to which way the Court will lean. I think that at least some members of the Court have become impatient with the strong assertions of Presidential power, but the outcome is, as they say in sports, too close to call.

Andrew C. McCarthy: Thanks for inviting me to participate in a discussion with such august company. 

I won't further belabor the assumption, which I think is shaky, that mere visa-holders have the same rights as American citizens or lawful permanent resident aliens simply because they are here legally. I also think it would be a mistake to extend the protections of the Constitution overseas to aliens over whom the U.S. has effective control. Custody of the person is not the issue. The protections of the Constitution are intended for a particular body politic and system of government; the happenstance that the U.S. exercises de facto control over individuals does not replicate those conditions and neither therefore should it replicate the burdens the Constitution places on government when it acts outside our borders on behalf of our citizens. 

Finally, I think it's an error to look at these wartime detention issues involving non-Americans as essentially legal. They are political issues of the highest order in a democracy. When the President apprehends alien enemy combatants in wartime, he is not acting extra-constitutionally. He is acting consistently with Article II powers the Framers quite consciously gave the Chief Executive to repel enemy attacks. If, as is conceivable, we are at some point attacked domestically more massively than we were on 9/11, this will be painfully obvious. The American people will demand preventive action against potential enemy operatives in our midst, and it will not be acceptable to tell them we can't detain this or that person because our evidence is based on foreign intelligence information that cannot responsibly be disclosed in court. The check on this foreign affairs power, as the Supreme Court observed in Chicago & Southern (1948), is designed to be the ballot box--reflecting the judgment of the people whose lives are at stake, not that of unaccountable judges. It is quite a powerful check given that we are talking about only the second enemy combatant to be detained domestically in six years of a war triggered by a domestic attack carried out by an enemy who’s MO is to embed cells in our homeland.

George Terwilliger: At the risk of sliding in under the wire, I am grateful for the opportunity to make just a few comments on the issues generally and the latest work of the Fourth Circuit: 

I largely agree with Andy McCarthy's characteristically cogent analysis. 

The Judiciary is at its worst when, as I believe the 4th Circuit panel decision reflects, it acts out of a perceived need to right a wrong and stretches the law and the scope of judicial review to make it happen. The process of effectuating a political check may take longer than some judges would prefer, but the judiciary should stay its hand and let the political process work its will.In these types of combatant detention cases, the role of the Judiciary is totally circumscribed by the Constitution and the courts need to stay in those boundaries. Doing otherwise is not only an attack on the carefully-crafted separation of powers; it puts the security of the nation at risk. The responsibility--and the necessary power to execute on the responsibility--to protect the nation from hostile forces belong to the Executive. The concept that courts could second-guess the exercise of that responsibility is nonsense.  

This may be a very interesting academic legal debate when we are looking at a relatively few cases and the combatants are neutralized already by incarceration. The need to address circumstances attendant to a relatively large, well-organized unit or units of irregular or unlawful combatants, here or abroad, is not so academic and does not lend itself to adjudication of status in the civil justice system. I am in full agreement, of course, that due process is due detainees, and I would favor exercising it in non-military proceedings under Article II authority. The Congress could appropriate funds for this purpose. 

One factor that seems lost in this debate is that many of those detained after entering the United States procured their presence here by fraud. Constitutional rights for non-citizens, to the extent they are applied, are given to those who have signed on to the social compact. Those that have lied to get here, especially those who lied to hide a violent purpose in coming, have done anything but. They should be deemed to have forfeited whatever rights they might otherwise obtain.

Richard Epstein: Let me just make a brief response because I think that Andy is off base on both these points.

First, the question on the extraterritorial reach of the Constitution to aliens who are in US custody overseas. It does no good to talk in the most general terms about the protections of the Constitution, without talking about which protections are at stake. There is no issue here of political participation in American life. There is only the question of whether any tactics can be used for any reason to track down and detain an alien. The way in which government officials behave overseas will surely influence the way in which they behave at home. If we treat the use of our powers overseas as beyond restraint, then we shall lose all ability to keep important restraints in place at home, for citizens and legal aliens. The issue here is not whether identical protections have to be applied; circumstances of danger could reduce the level of protection afforded in hostile venues. But even though the nature of the process due overseas may change, I see no reason to read in implied limitations on the general guarantees of the Bill of Rights to achieve short-term objectives that will surely undermine long term civil liberties at home.

Likewise, I think that it is exceedingly dangerous to say that the President’s authority to deal with terrorism at home or abroad is not subject to legal constraints because it is in some sense political. If we knew who enemy combatants were, then detention is easy. But if we don’t know then the risks of false incarcerations for indefinite periods of time is too great to run. The situation with al-Marri is not that of an immediate attack that justifies force in self-defense. If there is time enough to wrangle over the legality of his detention, then there is time enough to give him some status hearing before a neutral party.