Al-Marri v. Pucciarelli

• Decision Date: 15 July 2008
• Docket Number: No. 06-7427.,06-7427.
• Citation: 534 F.3d 213
• Parties: Ali Saleh Kahlah AL-MARRI, Petitioner-Appellant, and Mark A. Berman, as next friend, Petitioner, v. Commander John PUCCIARELLI, U.S.N., 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; National Association of Criminal Defense Lawyers; Hate Free Zone; Muslim Advocates; World Organization for Human Rights USA; David M. Brahms, Brigadier General; Donald J. Guter, Rear Admiral; Merrill A. McPeak, Retired General, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

534 F.3d 213

Ali Saleh Kahlah AL-MARRI, Petitioner-Appellant, and Mark A. Berman, as next friend, Petitioner, v.Commander John PUCCIARELLI, U.S.N., 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; National Association of Criminal Defense Lawyers; Hate Free Zone; Muslim Advocates; World Organization for Human Rights USA; David M. Brahms, Brigadier General; Donald J. Guter, Rear Admiral; Merrill A. McPeak, Retired General, Amici Supporting Appellant.

No. 06-7427.

United States Court of Appeals, Fourth Circuit.

Argued: October 31, 2007.

Decided: July 15, 2008.

ARGUED:

Jonathan L. Hafetz, Brennan Center for Justice, New York University School of Law, New York, New York, for Appellant. Gregory George Garre, Deputy Solicitor General, Office of the Solicitor General, United States Department of Justice, 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, Eric D. Miller, Assistant to the 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 WILLIAMS, Chief Judge, and WILKINSON, NIEMEYER, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, and DUNCAN, Circuit Judges.

Reversed and remanded by published PER CURIAM opinion.Judge MOTZ wrote an opinion concurring in the judgment, in which Judges MICHAEL, KING, and GREGORY joined.Judge TRAXLER wrote an opinion concurring in the judgment, in Part II of which Judge NIEMEYER joined.Judge GREGORY wrote an opinion concurring in the judgment.Chief Judge WILLIAMS wrote an opinion concurring in part and dissenting in part, in which Judge DUNCAN joined.Judge WILKINSON wrote an opinion concurring in part and dissenting in part.Judge NIEMEYER wrote an opinion concurring in the judgment in part and dissenting in part.Judge DUNCAN wrote an opinion concurring in part and dissenting in part.Judge SHEDD did not participate in this case.

OPINION

PER CURIAM:

Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant.After the district court denied all relief, al-Marri noted this appeal.A divided panel of this court reversed the judgment of the district court and ordered that al-Marri's military detention cease.SeeAl-Marri v. Wright,487 F.3d 160(4th Cir.2007).

Subsequently, this court vacated that judgment and considered the caseen banc.The parties present two principal issues for our consideration: (1) assuming the Government's allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.^*

Having considered the briefs and arguments of the parties, the en banccourt now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.

Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.

REVERSED AND REMANDED.

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judgment:

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 five years ago, military authorities seized Ali Saleh Kahlah al-Marri, 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 imprisoned awaiting trial 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 indefinite military detention — or even the indefinite military detention of a similarly situated American citizen — is proper.

While criminal proceedings were underway against 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 to indefinite military detention al-Marri or anyone else who associates with al Qaeda and "prepare[s]" for such acts.If the Government accurately describes al-Marri's conduct, he has committed grave crimes, but a majority of the en banccourt holds, as the panel did, that the judgment of the district court must be reversed.¹

We would also grant al-Marri habeas relief.Even...