From: Gary Britt 


The subject at hand Rich was your erroneous summary of the 4th Circuit Al
Marri case, and now you are wondering off into completely extraneous
arguments.  I don't like a lot of things about Bush and the Bush
administration and that dislike is growing daily.  This case you
incorrectly summarized in your intro sentence just doesn't happen to be one
of those things.  For a rational discussion of what is wrong and
inconsistent with the 4th Circuit decision and an understanding of why the
decision was 2-1 with 1 in favor of the Bush understanding of the law and
constitution and an explanation of why this decision will likely be
reversed follows:

Gary


http://volokh.com/posts/1181615410.shtml

Orin Kerr, June 11, 2007 at 10:30pm] Trackbacks What Should Happen to Al
Qaeda Cell Members Discovered in the United States?: I've been mulling over
the Fourth Circuit's decision in Al-Marri v Wright, and I have two
tentative thoughts about it. First, as a matter of policy, its reasoning
can lead to results that are completely bizarre. Second, those possible
results help explain why I think the U.S. Supreme Court would look at the
case very differently than did the Fourth Circuit.

   To see why I think the results of Al-Marri are so puzzling, consider the
following hypothetical. An Al-Qaeda cell of five individuals, all citizens
of Qatar, enter the United States on student visas. The cell members' plans
are to detonate a "dirty bomb" in New York City, and they rent a
hotel room in Jersey City, New Jersey (just across the river) to build the
dirty bomb. One of the hotel employees thinks the group is suspicious, and
he calls up the local police and tells an officer that there is a group of
Arab men in the hotel staying in one room and acting very secretively.

   The officer visits the hotel when the men are out one day and he requests
that the hotel employee show him the room. The employee agrees; he opens
the door with his key and shows the officer inside. They immediately see
the bomb-making materials along with several photographs of Osama bin Laden
and the 9/11 attacks taped to the walls. The officer contacts the FBI and
the Department of Homeland Security. An hour later, the FBI has obtained a
search warrant for the room and arrest warrants for the five men.

   The men are arrested and charged criminally. A search of the hotel room
discovers all the bomb-making materials. The room search also uncovers
videotapes the men made celebrating their pending attack; the men each
spent a few minutes on tape describing what attacks they will execute and
hoping and praying that the streets of New York will "run red with
Jewish and imperialist blood."

   But there's a major problem with the criminal case: The evidence against
the cell members was obtained in violation of the Fourth Amendment. Under
Stoner v. Califonia, the men have a reasonable expectation of privacy in
the hotel room and the hotel clerk lacks authority to consent to a law
enforcement search. As a result, the evidence against the five men was
obtained in violation of their Fourth Amendment rights. The evidence --
including the videotapes in which they each celebrated the attacks and
confessed to their plans -- must be suppressed.

   So what should the government do? It seems to me that under the Fourth
Circuit's decision in Al-Marri v. Wright, the government has two choices:
it can either deport the men or else must set them free. The military
cannot hold them, Al-Marri teaches; they are not "enemy
combatants" but rather are merely "civilians." Sure, they're
Al Qaeda cell members who entered the United States to execute another
9/11, but hey, they're still civilians with Due Process rights against
detention. It would be different if the men were Taliban soldiers, Al-Marri
tells us; then they would be "enemy combatants." But since
they're just everyday Al Qaeda cell members instead, they can't be held
under that authority. Under Al-Marri, the government has to either deport
the men or set them free. (There could be a possibility of detaining the
men on material witness warrants, but in this hypothetical they are the
only people involved in the plot.)

   From a standpoint of policy, this result seems incredibly bizarre to me.
Could it really be the case that the U.S. should have to deport or set free
an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.? I agree that
there are often legitimate issues of proving that alleged terrorists are
really terrorists; if the President declares that the five men are Al Qaeda
members who want to blow up a dirty bomb, we may want to see some proof.
But in this hypothetical, there is no doubt that the men are terrorists:
just watch the tapes the men made before being caught in which they boast
of their attacks. Could it really be the case that the most the government
can do in light of the Fourth Amendment violation is to deport the men to a
foreign country? I find that possibility just bizarre.

   My reaction is part of the reason why I think the Supreme Court would
have a very different take on Al-Marri than the Fourth Circuit did. Compare
Al-Marri to Hamdi v. Rumsfeld. Hamdi was an American citizen captured and
believed to have been fighting with the Taliban; he was brought to the
United States and detained there. He argued that his detention violated 18
U.S.C. 4001, which prohibits the detention of U.S. citizens "except
pursuant to an Act of Congress." The Court disagreed, holding that
Hamdi could be detained because the AUMF was the required Act of Congress.
Hamdi then argued that his detention violated Due process; a plurality held
that the detention was constitutional so long as Hamdi was given some
process in the determination that he was an enemy combatant. It then
remanded the case for the relevant proceedings.

   I find it pretty unlikely that a majority of the Supreme Court would say
that Hamdi can be detained (if he is given the necessary hearing) but
Al-Marri has to be let go. It seems plausible to me that Hamdi and Al-Marri
have equivalent rights to have their cases heard in court via the writ of
habeas corpus: Hamdi because he is a U.S. citizen, and Al-Marri because he
was detained in the United States. But once you get past jurisdiction,
isn't the case for detaining Al-Marri a lot stronger than the case for
detaining Hamdi? First, Al-Marri is a non-citizen while Hamdi is a citizen.
Second, Al-Marri is at the core of what the AUMF was all about, while Hamdi
was more at the periphery.

   For this latter point, recall what the AUMF actually says:

     The President is authorized to use all necessary and appropriate force
against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the United
States by such nations, organizations or persons.

Isn't that pretty clearly directed at a member of an Al-Qaeda cell who
entered the U.S. on September 10, 2001 to commit attacks -- much more
directly than a United States citizen who was fighting against the Northern
Alliance? That's part of the reason why i think the Supreme Court would
look at this case differently than the Fourth Circuit; I suspect they would
see a case like Al-Marri as being a core AUMF case, much more so than
Hamdi. An alien Al Qaeda cell member who entered the U.S. to execute
attacks is exactly the kind of person that Congress was trying stop with
the AUMF; the case that he's an "enemy combatant" is stronger
than the case for Hamdi. If anyone is an "enemy combatant," it's
Al-Marri (assuming the allegations against him are true).

   That's why I think Al-Marri would be a repeat of Hamdi if it got to the
Supreme Court. I imagine the Court holding that the AUMF is sufficient to
detain non-citizen Al Qaeda members who entered the U.S. to execute
attacks, and then moving on to what kind of Due Process hearing Al-Marri is
entitled to receive to test whether he is in fact such a person. The Court
would then remand for further proceedings based on whatever the Due Process
standard turns out to be.

   Anyway, that's my initial take; obviously it's open to revision if
there's something I'm missing, which is always a possibility. Finally, I
should add that there is a possible way out of the Fourth Amendment holding
described above: A court could hold that members of an Al Qaeda cell who
enter the U.S. to commit attacks have no Fourth Amendment rights under
United States v. Verdugo-Urquidez because they lack sufficient legitimate
connections with the U.S. If so, then the cell members would not be able to
invoke the Fourth Amendment to challenge the illegal hotel search, and the
evidence could be admitted against them.

Rich Gauszka wrote:
> You may want to consider moving to Chile as the idea of military
> tribunals obviously appeals to you.
>
>
> The United States has used the term Enemy Prisoners of War EPW for a
> long time but of course that was subject to the Geneva Conventions for
> treatment of those prisoners - something about humane treatment that
> absolutely confounds the Bushies
>
>
> http://www.icrc.org/ihl-nat.nsf/0/94B18B8D276D22C0C1256BC80044C23D
>
> Law or Regulations: Army Regulation 190-8 on Enemy Prisoners of War,
> Retained Personnel, Civilian Internees and Other Detainees, 1997
>
> Gary Britt wrote:
>> Yes it was.  It was an inaccurate highly biased and somewhat
>> uninformed summary.
>>
>> We have a criminal system for criminals.
>>
>> We have a *separate* system for war prisoners, enemy combatants, and
>> illegal enemy combatants.  These separate systems have always
>> existed.  They are nothing new.  The congress has declared war and
>> made specific authorizations for handling these people who are at war
>> with us.  If you don't think we are war, then take it up with your
>> congressman, but until the democrats actually vote to declare defeat
>> and surrender, the AUMF and Military Comissions Act, etc remain in
>> full force and effect.
>>
>> Gary
>>
>> Rich Gauszka wrote:
>>> No my statement was not overbroad.
>>>
>>> Second we have a system of law. If someone is believed guilty then
>>> bring them up before the system for a trial. - period.
>>>
>>>
>>> "Gary Britt"  wrote in message
>>> news:466dde40$1{at}w3.nls.net...
>>>>
>>>> Rich Gauszka wrote:
>>>>> How did I state this incorrectly? To quote the court
>>>>>
>>>> You Stated:
>>>> So much for the Bushies valued belief that the military can seize
>>>> civilians and imprison them indefinitely ignoring their constitution
>>>> rights
>>>>
>>>> That statement is overbroad and incorrect as a result.  Bush can
>>>> still pickup and imprison people like Hamdan and Hamadi and Padilla
>>>> and Masri. This case doesn't affect those situations that have been
>>>> resolved by the Supreme Court and the Military Commissions Act.
>>>>
>>>> After further reading, it appears that this matter is well
>>>> overstated. This guy entered the USA after training in terrorist
>>>> camps on SEPTEMBER 10, 2001. He is alleged to be part of the second
>>>> wave of Al Qaeda attacks that Bush has so far thwarted.  Under Bush
>>>> he was and is entitled to a trial before a military tribunal where
>>>> he can contest his status and have an appeal.
>>>>
>>>> Some law professors, who otherwise do not support the President on
>>>> his terrorist surveillance programs and strong article II
>>>> constitutional powers are predicted that this case will be
>>>> overturned either by an en banc review of the full 4th circuit or by
>>>> the Supreme Court.  It appears that Bush's position is much stronger
>>>> than the slanted media writings you focus on.
>>>>
>>>> Whether this case is upheld or reversed doesn't really matter to me,
>>>> but the facts as they are coming out seem to strongly support the
>>>> reasonableness of Bush's approach to this guy.  He is alleged to be
>>>> not just an enemy combatant but an illegal enemy combatant (one who
>>>> seeks to violate the rules of war by attacking purely civilian
>>>> targets, etc.) and if Military Tribunals are good enough to try our
>>>> own soldiers who commit wrongful acts they are plenty good enough to
>>>> try such alleged illegal enemy combatants.
>>>>
>>>> Gary Britt
>>>
>>>

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