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Comments on Criminal Issues
May 1, 2007
Government Continues Assault on Writ of Habeas Corpus
Ali Saleh Kahlah Al-Marri is a resident alien in the United States. He was arrested in this country and labeled an “unlawful enemy combatant.” He has an appeal pending before the Fourth Circuit Court of Appeals. This appeal raises several significant issues:
Can the provisions of the Military Commissions Act which foreclose habeas corpus relief to an “enemy combatant” be applied to an individual who has not been “properly determined” to be an enemy combatant?
Can a United States citizen or resident arrested far removed from any field of battle and not associated with any “armed conflict” against the United States be designated as an enemy combatant?
The Military Commissions Act [Public Law No. 109-366] took effect on October 17, 2006. The primary Congressional intent for the piece of legislation was to remove “federal court jurisdiction over pending or future habeas corpus” and to deny other form of judicial relief to that class of people who have been designated by the President, or members of his Executive Branch, as “enemy combatants” [also called “detained aliens” or “detainees”].
The Government is arguing before the Fourth Circuit that these restrictive provisions apply in the Al-Marri case. The World Organization of Human Rights-USA is arguing before the appeals court that the MCA does not apply to Al-Marri because he does not “fit within the specific category of individuals stipulated for coverage under the Act.” Specifically, Al-Marri had not been “properly determined” to be an unlawful enemy combatant.
The MCA cannot be applied to a United States citizen or resident because these individuals are protected by the United States Constitution. Human Rights-USA said that Al-Marri was arrested in this country “for what may be criminal activities” but that he has never taken part on a field of battle “in the type of international or internal armed conflict that would provide a legitimate and recognized basis for an unlawful enemy combatant designation.”
If the Government is successful in its effort to apply the MCA to Al-Marri, it would raise serious constitutional issues for all U.S. resident aliens who enjoy the same rights and constitutional protections as U.S. citizens.
Section 7(a) of the Military Commissions Act (MCA) specifically states that federal courts do not have habeas corpus jurisdiction in those cases of “an alien detained by the United States who has been determined by the United States to have been properly detained as an unlawful enemy combatant or is awaiting such designation.”
By its own terms, the MCA does not apply to people like Al-Marri who have not been “properly determined to be an unlawful enemy combatant.” United States residents, who may be arrested in this country for suspected criminal activity (even if those activities are not in the interests of the United States) and who have never been on a battle field linked to an internationally recognized armed conflict cannot be properly designated as an unlawful enemy combatant.
In Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 78 L.Ed. 413 (1934) held that the war power “is a power to wage war successfully, and thus it permits the harnessing the entire energies of the people in a supreme cooperative effort to save the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties.” See also: Hamdi v. Rumsfeld, 542 U.S. 507, 536, 124 S.Ct. 2633, 2650 (2004).
The Hamdi court said that “while we do not question that our due process assessment must pay keen attentions to the burdens faced by the Executive in the contest of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ [of habeas corpus] by Congress, a citizen detained as an enemy combatant is entitled to this process.” Id., 542 U.S. at 536-37.
Human Rights-USA pointed out that the only times U.S. citizens have been designated as enemy combatants was during the Civil War and during World War II when German saboteurs were captured in this country. “Both of these situations were associated with armed conflicts of an international or internal character that meet international legal standards that allow unlawful enemy combatant designations to be applied,” Human Rights-USA informed the Fourth Circuit.
The United States Supreme Court one-hundred and forty years ago held that U.S. residents and citizens could not be treated as enemy combatants and subjected to military trials when civilian courts were “open and their process unobstructed” and there was no “actual and present” need for denying these citizens/residents constitutional protections. See, Ex parte Milligan, 71 U.S. 2 (1866). The Supreme Court in Hamdi stressed the significance that “Milligan was not a prisoner of war; but a resident of Indiana arrested while at home there.” Id., 542 U.S. at 522.
These same standards, argued Human Rights-USA, should apply in equal measure to any attempt by the Government to designate Al-Marri as an unlawful enemy combatant and thus deny him his habeas corpus and due process rights. The Human Rights group specifically instructed the Fourth Circuit:
“In a number of other situations where Congress has attempted to restrict access to habeas corpus or other judicial remedies, the courts have made clear that petitioners with some type of reasonable legal or constitutional claims can not be placed in a situation where they have no judicial forum available to them, and no reasonable method for bringing their claims before the courts. Especially in the context of refugee and immigration cases, the courts have found that habeas stripping language in Congressional statutes could not be given effect, and would violate due process standards, especially for citizens or residents of the U.S., if the result would leave petitioners without any means for pursuing their claims and protecting their vested rights and protections in the federal courts. As is true in the present case, the issue is not simply whether one particular type of remedy or another can or should be used, but the more fundamental question of whether Congress can take action that would adversely affect vested rights while stripping the petitioners of any reasonable and effective means for protecting their interests before the federal courts, leaving them with no meaningful judicial remedy whatsoever.” See: INS v. St.Cyr, 533 U.S. 289, 364 (2001); Calcano-Martinez v. INS, 121 S.Ct. 2268 (2001). See also: Goddard v. Frazier, 156 F.2d 938 (10th Cir. 1946)[citing Campbell v. Holt, 115 U.S. 620 (1885)].
The dilemma faced by individuals like Al-Marri is that despite being a legal U.S. resident with a right to full constitutional protections, they would find themselves in custody as “unlawful enemy combatants” and, under the MCA, would not have access to any court to present a habeas corpus petition challenging the legality of their detention or any other lawsuit challenging conditions of that detention. These individuals, without any determination of “guilt” being made against them, would remain isolated in military detention for years without any rights or protections.
The President of the United States, under no circumstances, should have the power and authority to subject United States citizens or residents to this kind of deplorable treatment. The President is not King – and Congress should never vest him with the “King’s prerogative.”
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