Saved by the Patriot Act?

Here's a link to the recent al-Marri decision (pdf), by Judge Diana Gribbon Motz.

For work a couple weeks ago, I read through the recent court decision on Ali Saleh Kahlah al-Marri. I meant to post about it back then (the decision came down June 11th) but I never got around to it. Better late than never. This is a long post.

The decision is important regarding habeus corpus rights, as well as interpretations of the Military Commissions Act (MCA).

The government had three basic arguments:
1) that the federal courts had no jurisdiction over al-Marri and that al-Marri fell under the MCA;
2) That the Authorization for the Use of Military Force allowed Bush to detain suspects indefinitely; and
3) That the President has, under Article 2 of the Constitution, the power to detain anyone he likes, so long as he relates it to national security.

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The Government's first argument was that the federal courts had no business deciding this case, as al-Marri's case should go through the special "courts" set up by the MCA. Here's the basic dispute over the MCA:

The Government asserts that the MCA divests federal courts of all subject matter jurisdiction over al-Marri’s petition. Al-Marri maintains that the MCA, by its plain terms, does not apply to him and that if we were to hold it does, the MCA would be unconstitutional. (13)

There are two kinds of habeus rights in the U.S. - constitutional and statutory. Statutory rights are rights that the Congress extends out of the good of its heart to non-residents, non-citizens, or people outside the country. Since al-Marri was legally living in the U.S., he has constitutional habeus rights, not statutory - meaning that the arguments Bush was applying to al-Marri could just as easily apply to any United States citizen. Judge Motz then determined that the MCA was intended to apply to detainees with statutory habeus rights, not constitutional (i.e., the MCA can never be applied to a United States citizen).

The court decided it had jurisdiction for two reasons. First of all, prior to al-Marri's suit, no effort had been made to give al-Marri a Combat Status Review Tribunal, and had made no effort to process al-Marri under the MCA. The second reasons was because the MCA was intended to apply only to those detainees who had statutory habeus rights, and al-Marri, being a legal resident of the U.S., has constitutional habeus rights just like any U.S. citizen. Therefore the federal courts had jurisdiction.

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The next part of the Government's argument was that the President was granted under the Authorization for the Use of Military Force (AUMF), the President was given the authority to declare al-Marri as an enemy combatant, and use the military to indefinitely detain him. "Alternatively, the Government contends that even if the AUMF does not authorize the President to order al-Marri’s military detention, the President has “inherent constitutional power” to do so." (29) It's important to note that this "inherent constitutional power" argument applies to "persons seized and detained within the United States who have constitutional rights under the Due Process Clause" (30 n4), which would include any American citizen sitting in her living room.

Judge Motz sums up the arguments over habeus on page 35:

The Government principally contends that its evidence establishes this and therefore the AUMF grants the President statutory authority to detain al-Marri as an enemy combatant. Alternatively, the Government asserts that the President has inherent constitutional authority to order al-Marri’s indefinite military detention. Al-Marri maintains that the proffered evidence does not establish that he fits within the “legal category” of enemy combatant and so the AUMF does not authorize the President to order the military to seize and detain him, and that the President has no inherent constitutional authority to order this detention.

Ironically, al-Marri is saved from indefinite military detention by that law civil libertarians hate - the USA PATRIOT Act. Basically, al-Marri's classification under the Patriot Act shows that he falls under some kind of law (the Patriot Act allows detention up to six months, but not indefinitely), which is better than being subject to no laws, as the Government was arguing:

The explicit authorization for limited detention and criminal process in civilian courts in the Patriot Act provides still another reason why we cannot assume that Congress silently empowered the President in the AUMF to order the indefinite military detention without any criminal process of civilian “terrorist aliens” as “enemy combatants.” (61-62)

So, the courts shot down Bush's argument that the AUMF allows him to use the military domestically to detain people.

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Bush's final argument is that Article 2 of the Constitution gives him the authority to subject anyone - including United States citizens - involved in hostilities against the United States to military detention. This argument, again ironically, is shot down by the Patriot Act.

The "Youngstown test" basically states that the President has the most power when Congress is behind him. In this case, because Congress stated how they wanted people like al-Marri to be treated in the Patriot Act, the President was acting against the wishes of Congress, therefore his power is at its weakest.

What's surprising is that the Patriot Act was written by the Administration. Congress voted in favor of it largely without reading it - the President could (and did, even at the reauthorization) slip anything he want into the bill. Thus the Court is pointing out that the Administration has been inconsistent in how it has tried to treat various classes of detainees, and basically has no coherent legal theory of what it is trying to do.

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The remainder of the decision is Judge Motz trying to underscore how radical the Government's arguments were. She reminds us that the rights Bush fights to deprive American citizens of are the same rights we fought our War of Independence to restore:

In the Declaration of Independence our forefathers lodged the complaint that the King of Great Britain had “affected to render the Military independent of and superior to the Civil power” and objected that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.” (72)

She ends the decision by warning that, given Bush's disrespect for the law, our constitutional form of government could end (76-77).

For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may exercise as they please. 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.