HUDSON, District Judge, dissenting:
I regret that I am unable to concur in the majority opinion,
except to the extent that I agree that this Court has jurisdiction
over this appeal. Although I do not embrace all aspects of the
majority’s jurisdictional reasoning, I agree that Section 7 of the
Military Commission Act of 2006 (MCA) does not divest this Court of
its constitutional jurisdiction, under Article I, Section 9,to
review habeas corpus decisions involving individual detainees
within the United States. See Hamdi v. Rumsfeld,542 U.S. 507, 525,
124 S. Ct. 2633, 2644 (2004). The MCA may, however, foreclose a
right of statutory review. Beyond the jurisdictional question, the
majority and I part company.
While I commend the majority on a thoroughly researched and
impressively written opinion, I must conclude that their analysis
flows from a faulty predicate. In my view, the appellant was
properly designated as an enemy combatant by the President of the
United States pursuant to the war powers vested in him by Articles
I and II of the United States Constitution and by Congress under
the Authorization to Use Military Force (AUMF). See Hamdi v.
Rumsfeld, 296 F.3d 278, 281–82 (4th Cir. 2002).1 I am also of the
the United States.” Hamdi, 542 U.S. at 526, 124 S. Ct. at 2645
(internal quotation marks omitted).
The boundaries of activity qualifying for “enemy combatant”
status staked out in Hamdi were not meant to be immutable. The
obvious impact of the limiting language was to confine the court’s
holding to the immediate facts before them.
While al-Marri was not captured while armed in a formal
theater of war, the evidence would certainly support the conclusion
that he was actively supporting forces hostile to the United States
— and that the forces he was supporting were actively engaged in
armed conflict against the United States.
Given the unconventional nature of the conflict that the
United States is engaged in with al Qaeda, the exact definitions of
“enemy combatants” and “enemy belligerents” are difficult to
conceptualize and apply with precision.
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opinion that al-Marri has received all due process entitlements
prescribed by existing United States Supreme Court precedent. I
would therefore vote to affirm the district court’s dismissal of
al-Marri’s Petition for Writ of Habeas Corpus.
The wellspring of the majority’s reasoning is the notion that
a non-military person arrested on U.S. soil, outside the zone of
battle, for providing active aid to the enemy at time of war,
cannot be declared an enemy combatant and detained for the duration
of the hostilities, but must be prosecuted in the civilian courts
of the United States. In fact, the majority would even go further
and find that the language of the AUMF does not include
organizations, such as al Qaeda, that are not affiliated with
recognized nation states. The clear congressional intent
underlying the AUMF was to afford the President of the United
States all the powers necessary to suppress those individuals or
organizations responsible for the terrorist attack on September 11,
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2001. This broad language would certainly seem to embrace
surreptitious al Qaeda agents operating within the continental
United States. The AUMF provided as follows:
[T]he 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.
Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001) (emphasis
added). History has proven that al Qaeda, an international
terrorist organization with which the United States is at war,
falls squarely within that definition. See Hamdi v. Rumsfeld, 316
F.3d 450, 459 (4th Cir. 2003), vacated and remanded on other
grounds, Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633 (2004).
Central to the majority’s analysis is the locus of his arrest.
Unlike the petitioners in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.
Ct. 2633 (2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006),
al-Marri is a lawful resident alien who was not taken into custody
in a battle zone. He was arrested in Peoria, Illinois, where he
was residing on a student visa. Despite powerful evidence of his
connection to al Qaeda, the majority believe the President is
without power to declare him an enemy combatant. They believe he
must be indicted and tried for crimes against the United States.
Although definitive precedent is admittedly sparse, in my opinion,
this position is unsupported by the weight of persuasive authority.
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In Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), a panel of
this Court unanimously rejected the argument that the locus of
capture was relevant to the President’s authority to detain an
enemy combatant. See id. at 394. Padilla, a U.S. citizen, was
arrested by FBI agents upon his arrival at O’Hare International
Airport in Chicago, Illinois. Id. at 388. A close associate of al
Qaeda, Padilla had been “armed and present in a combat zone during
armed conflict between al Qaeda/Taliban forces and the armed forces
of the United States.” Id. at 390 (internal quotation marks
omitted). Moreover, “Padilla met with Khalid Sheikh Mohammad, a
senior al Qaeda operations planner, who directed Padilla to travel
to the United States for the purpose of blowing up apartment
buildings, in continued prosecution of al Qaeda’s war of terror
against the United States.” Id.
This Court in Padilla reversed the holding of the district
court that the President lacked authority under the AUMF to detain
Padilla, and that Padilla must be either criminally prosecuted or
released. Id. With respect to Padilla’s argument that the
circumstances of his detention mandated only the option of criminal
prosecution, this Court noted:
. . . We are convinced, in any event, that the
availability of criminal process cannot be determinative
of the power to detain, if for no other reason than that
criminal prosecution may well not achieve the very
purpose for which detention is authorized in the first
place—the prevention of return to the field of battle.
Equally important, in many instances criminal prosecution
would impede the Executive in its efforts to gather
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intelligence from the detainee and to restrict the
detainee’s communication with confederates so as to
ensure that the detainee does not pose a continuing
threat to national security even as he is
confined—impediments that would render military detention
not only an appropriate, but also the necessary, course
of action to be taken in the interest of national
security.
Id. at 394–95.
Military detention during time of war and criminal prosecution
serve discrete functions. The object of criminal prosecution is to
punish for legal transgression. The purpose of military detention
is to immobilize the enemy during hostilities. Hamdi, 542 U.S. at
518, 124 S. Ct. at 2640. Such detention is also intended “to
prevent the captured individual from serving the enemy.” In re
Territo, 156 F.2d 142, 145 (9th Cir. 1946).
The only significant fact that distinguishes the justification
for Padilla’s detention from that of al-Marri is that Padilla at
some previous point in time had been armed and present in a combat
zone. There was no indication, however, that Padilla was ever a
soldier in a formal sense, particularly while acting on U.S. soil.
Like Padilla, al-Marri, an identified al Qaeda associate, was
dispatched to the United States by the September mastermind as a
“sleeper agent” and to explore computer hacking methods to disrupt
the United States’ financial system. Moreover, al-Marri volunteered
for a martyr mission on behalf of al Qaeda, received funding from
a known terrorist financier, and communicated with known terrorists
by phone and e-mail. Decl. of Jeffrey N. Rapp, Director, Joint
2Al-Marri not only failed to offer any evidence on his behalf,
he refused to even participate in the initial evidentiary process.
Al-Marri, 443 F. Supp. 2d at 785.
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Intelligence Task Force for Combating Terrorism, ¶ 7, Sept. 9, 2004.
It is also interesting to note that al-Marri arrived in the United
States on September 10, 2001. Id.
The district court in this case credited the Declaration of
Rapp, which was unrebutted, and found by a preponderance of the
evidence, that al-Marri had been properly classified and detained
as an enemy combatant. See Al-Marri v. Wright, 443 F. Supp. 2d 774,
784 (D.S.C. 2006).2
The standard employed by the district court to determine al-
Marri’s qualifications for enemy combatant status was analogous to
that invoked by the United States Supreme Court in Ex Parte Quirin,
317 U.S. 1, 63 S. Ct. 2 (1942). In Quirin, the Court explained,
[E]ntry upon our territory in time of war by enemy
belligerents, including those acting under the direction
of the armed forces of the enemy for the purpose of
destroying property used or useful in prosecuting the
war, is a hostile and war-like act. . . .
. . . .
. . . Citizens who associate themselves with the
military arm of the enemy government, and with its aid,
guidance and direction enter this country bent on hostile
acts are enemy belligerents within the meaning of . . .
the law of war. . . .
Id. at 36–38. The Quirin Court further provided that “t is
without significance that petitioners were not alleged to have
borne conventional weapons or that their proposed hostile acts did
3Just as mere presence is not sufficient to make one a part of
a criminal conspiracy or an accomplice to a crime, I agree with the
majority that mere association with al Qaeda or an organization
that supports al Qaeda does not necessarily make one an enemy
combatant. See Milligan, 71 U.S. at 131 (stating that “f in
Indiana [Milligan] conspired with bad men to assist the enemy, he
is punishable for it in the courts of Indiana”). This is not a
case, however, of mere association. Al-Marri trained with and
became an agent of al Qaeda and, operating under its guidance and
direction, entered the United States on September 10, 2001, “for
the purpose of engaging in and facilitating terrorist activities
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not necessarily contemplate collision with the Armed Forces of the
United States.” Id. at 37. “Nor are petitioners any the less
belligerents if, as they argue, they have not actually committed or
attempted to commit any act of depredation or entered the theatre
or zone of active military operations.” Id. at 38.
Ex Parte Milligan, 71 U.S. 2 (1866), does not undermine the
district court’s decision. Milligan did not associate himself with
a rebellious State with which the United States was at war. See
Milligan, 71 U.S. at 131; Quirin, 317 U.S. at 45, 63 S. Ct. at 19
(noting that the Court in Milligan “concluded that Milligan [was]
not . . . a part of or associated with the armed forces of the
enemy”). In this case, the unrebutted evidence shows that al-Marri
associated himself with and became an agent of al Qaeda, the
organization targeted by the AUMF and the enemy with which the
United States is at war. See Rapp Decl. ¶ 7 (“Al-Marri is an al
Qaeda ‘sleeper agent’ . . . was trained at an al Qaeda terror camp
. . . met personally with Usama Bin Laden . . . and volunteered for
a martyr mission.”).3 As noted above, it is without significance
subsequent to September 11,” the very activities that the AUMF was
intended to prevent. Rapp Decl. ¶ 7; see AUMF § 2(a).
85
that al Marri did not himself carry a conventional weapon in a zone
of active military operations. See Quirin, 317 U.S. at 37–38.
In Hamdi, the Supreme Court considered the due process
requirements for a citizen being held in the United States as an
enemy combatant. See Hamdi, 542 U.S. at 509, 124 S. Ct. at 2635.
Hamdi was an American citizen captured in Afghanistan for allegedly
taking up arms with the Taliban in a combat zone. Id. at 510, 124
S. Ct. at 2635. Like al-Marri, Hamdi was being detained at the
Naval Brig in Charleston, South Carolina. Id. at 510, 124 S. Ct.
2636. After applying a balancing of interest calculus, the Court
observed, “a citizen-detainee seeking to challenge his
classification as an enemy combatant must receive notice of the
factual basis for his classification, and a fair opportunity to
rebut the Government’s factual assertions before a neutral
decisionmaker.” Hamdi, 542 U.S. at 533, 124 S. Ct. at 2648. “It
is equally fundamental that the right to notice and an opportunity
to be heard must be granted at a meaningful time and in a
meaningful manner.” Id. at 533, 124 S. Ct. at 2649 (internal
quotation marks omitted).
After upholding the power of the President to detain al-Marri
under the AUMF, the district court, after providing him with all
due process entitlements articulated in Hamdi, found that his
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continued detention as an enemy combatant was proper and dismissed
his petition. See Al-Marri, 443 F. Supp. 2d at 785. In addition,
al-Marri was represented by counsel at all stages of the
proceedings below.
I believe the district court correctly concluded that the
President had the authority to detain al-Marri as an enemy
combatant or belligerent. Although al-Marri was not personally
engaged in armed conflict with U.S. forces, he is the type of
stealth warrior used by al Qaeda to perpetrate terrorist acts
against the United States. Al-Marri’s detention is authorized
under the AUMF “to prevent any future acts of international
terrorism against the United States.” AUMF § 2(a). Furthermore,
setting aside the amorphous distinction between an “enemy
combatant” and an “enemy belligerent,” there is little doubt from
the evidence that al-Marri was present in the United States to aid
and further the hostile and subversive activities of the
organization responsible for the terrorist attacks that occurred on
September 11, 2001.
I therefore vote to affirm the district court.
lol