Al-Marri v. Wright

• Decision Date: 11 June 2007
• Docket Number: No. 06-7427.,06-7427.
• Citation: 487 F.3d 160
• Parties: Ali Saleh Kahlah AL-MARRI, Petitioner-Appellant, and Mark A. Berman, as next friend, Petitioner, v. Commander S.L. WRIGHT, USN Commander, Consolidated Naval Brig., Respondent-Appellee. Specialists in the Law of War; Professors of Evidence and Procedure; United States Criminal Scholars and Historians; Former Senior Justice Department Officials; Center for National Security Studies; American-Arab Anti-Discrimination Committee; Asian-American Justice Center; National Immigrant Justice Center; Human Rights First; Human Rights Watch; Professors of Constitutional Law and Federal Jurisdiction; Hate Free Zone; Muslim Advocates; World Organization for Human Rights USA, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

487 F.3d 160

Ali Saleh Kahlah AL-MARRI, Petitioner-Appellant, and Mark A. Berman, as next friend, Petitioner, v. Commander S.L. WRIGHT, USN Commander, Consolidated Naval Brig., Respondent-Appellee Specialists in the Law of War; Professors of Evidence and Procedure; United States Criminal Scholars and Historians; Former Senior Justice Department Officials; Center for National Security Studies; American-Arab Anti-Discrimination Committee; Asian-American Justice Center; National Immigrant Justice Center; Human Rights First; Human Rights Watch; Professors of Constitutional Law and Federal Jurisdiction; Hate Free Zone; Muslim Advocates; World Organization for Human Rights USA, Amici Supporting Appellant.

No. 06-7427.

United States Court of Appeals, Fourth Circuit.

Argued: February 1, 2007.

Decided: June 11, 2007.

ARGUED: Jonathan L. Hafetz, Brennan Center for Justice, New York University School of Law, New York, New York, for Appellant. David B. Salmons, Assistant to the Solicitor General, United States Department of Justice, Office of the Solicitor General, Washington, DC, for Appellee. ON BRIEF: Andrew J. Savage, III, Savage & Savage, P.A., Charleston, South Carolina; Lawrence S. Lustberg, Mark A. Berman, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., Newark, New Jersey, for Appellant. Paul D. Clement, Solicitor General, Reginald I. Lloyd, United States Attorney, District of South Carolina, Gregory G. Garre, Deputy Solicitor General, Kevin F. McDonald, Assistant United States Attorney, Claire J. Evans, United States Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Appellee. Jenny S. Martinez, Stanford, California; Allison Marston Danner, Nashville, Tennessee; Valerie M. Wagner, Daniel B. Epstein, Dechert, L.L.P., Palo Alto, California, for Specialists in the Law of War, Amicus Supporting Appellant. Jonathan M. Freiman, National Litigation Project of the Allard K. Lowenstein International Human Rights Clinic, Yale Law School, New Haven, Connecticut, for Professors of Evidence and Procedure, Amicus Supporting Appellant. Hope R. Metcalf, Wiggin and Dana, L.L.P., New Haven, Connecticut, for United States Criminal Scholars and Historians, Amicus Supporting Appellant. James C. Schroeder, Gary A. Isaac, Heather M. Lewis, Mayer, Brown, Rowe & Maw, L.L.P., Chicago, Illinois, for Former Senior Justice Department Officials, Amicus Supporting Appellant. Kate Martin, Joseph Onek, Center for National Security Studies, Washington, DC, Paul Smith, Joshua A. Block, Jenner & Block, L.L.P., New York, New York, for Center for National Security Studies, Amicus Supporting Appellant; Lema Bashir, American-Arab Anti-Discrimination Committee, Washington, DC, for American-Arab Anti-Discrimination Committee, Amicus Supporting Appellant; Aimee J. Baldillo, Asian American

Justice Center, Washington, DC, for Asian-American Justice Center, Amicus Supporting Appellant; Mary Meg McCarthy, Tara Magner, National Immigrant Justice Center, Chicago, Illinois, for National Immigrant Justice Center, Amicus Supporting Appellant. Gabor Rona, Hina Shamsi, Human Rights First, New York, New York; Jennifer Daskal, Human Rights Watch, Washington, DC; Donald Francis Donovan, Catherine M. Amirfar, Tali Farimah Farhadian, Debevoise & Plimpton, L.L.P., New York, New York, for Human Rights First and Human Rights Watch, Amici Supporting Appellant. Gerald L. Neuman, Cambridge, Massachusetts; Harold Hongju Koh, New Haven, Connecticut; Sarah H. Cleveland, Cambridge, Massachusetts; Margaret L. Sanner, Reed Smith, L.L.P., Richmond, Virginia, for Professors of Constitutional Law and Federal Jurisdiction, Amicus Supporting Appellant. Timothy J. Finn, Julia E. McEvoy, Katherine E. Stern, Jones Day, Washington, DC, for National Association of Criminal Defense Lawyers, Amicus Supporting Appellant. Shankar Narayan, Hate Free Zone, Seattle, Washington, for Hate Free Zone, Amicus Supporting Appellant; Farhana Khera, Muslim Advocates, Kensington, Maryland, for Muslim Advocates, Amicus Supporting Appellant. Morton Sklar, Executive Director, Joseph Husty, Legal Intern, World Organization for Human Rights USA, Washington, DC, with the assistance of Law Student Contributors: Melissa Keyes (U. of CA at Hastings Law School), Charles Wait, Aaron Clark-Rizzio, Kennon Scott, Binish Hasan, Maria Tennyson, Olivia Maginley and Meredith Angelson (New York Univ. Law Sch.), Simon Moshenberg, Jesse Townsend, Stephanie Hays, Sameer Ahmed and Nicholas Pederson (Yale Law School), Matt Sadler (B.C. Law School), for World Organization for Human Rights USA, Amicus Supporting Appellant. David H. Remes, Enrique Armijo, John F. Coyle, Covington & Burling, L.L.P., Washington, DC, for David M. Brahms, Brigadier General, Donald J. Guter, Rear Admiral, Merrill A. McPeak, Retired General, Amici Supporting Appellant.

Before MOTZ and GREGORY, Circuit Judges, and HENRY E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY joined. Judge HUDSON wrote a dissenting opinion.

DIANA GRIBBON MOTZ, Circuit Judge.

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since—without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation's military, has fought alongside any nation's armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting that al-Marri associated with al Qaeda and "prepar[ed] for acts of international terrorism." It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute—enacted years after al-Marri's seizure—strips federal courts of jurisdiction even to consider this habeas petition.

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government's allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri's conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians—let alone imprison them indefinitely.

I.

Al-Marri, a citizen of Qatar, lawfully entered the United States with his wife and children on September 10, 2001, to pursue a master's degree at Bradley University in Peoria, Illinois, where he had obtained a bachelor's degree in 1991. The following day, terrorists hijacked four commercial airliners and used them to kill and inflict grievous injury on thousands of Americans. Three months later, on December 12, 2001, FBI agents arrested al-Marri at his home in Peoria as a material witness in the Government's investigation of the September 11th attacks. Al-Marri was imprisoned in civilian jails in Peoria and then New York City.

In February 2002, al-Marri was charged in the Southern District of New York with the possession of unauthorized or counterfeit credit-card numbers with the intent to defraud. A year later, in January 2003, he was charged in a second, six-count indictment, with two counts of making a false statement to the FBI, three counts of making a false statement on a bank application, and one count of using another person's identification for the purpose of influencing the action of a federally insured financial institution. Al-Marri pleaded not guilty to all of these charges. In May 2003, a federal district court in New York dismissed the charges against al-Marri for lack of venue.

The Government then returned al-Marri to Peoria and he was re-indicted in the Central District of Illinois on the same seven counts, to which he again pleaded not guilty. The district court set a July 21, 2003 trial date. On Friday, June 20, 2003, the court scheduled a hearing on pretrial motions, including a motion to suppress evidence against al-Marri assertedly obtained by torture. On the following Monday, June 23, before that hearing could be held, the Government moved ex parte to dismiss the indictment based on an order signed that morning by the President.

In the order,...