11 Jun Does Affiliation with Al Qaeda Make One an “Enemy Combatant”? No, Says U.S. Court of Appeals
The U.S. Court of Appeals for the Fourth Circuit ruled today that an alien resident of the U.S. alleged to be affiliated with Al Qaeda cannot be detained as an “enemy combatant.” (al-Marri v. Wright).
Al-Marri is a citizen of Qatar who is alleged to have trained at Al Qaeda training camps prior to September 11 and who was detained while studying computer science at Bradley University in Illinois. The U.S. military has held al-Marri in a brig in South Carolina for the past four years as an enemy combatant.
I’m sure others have already digested this opinion elsewhere.* Let me add my first two cents here.
At first glance, it seems to me the crucial analytical move by the Court here is to reject the government’s claim that allegations of membership in Al Qaeda is enough to sustain an “enemy combatant” designation. The Court seems to read prior Supreme Court precedent to require detention on the battlefield, or evidence of affiliation with the military of a government with which the U.S. is a war, in order to sustain an enemy combatant designation.
This seems like a pretty defensible approach, although I think it is hard to read Congress’ September 11 Resolution to be so limited. As a practical matter, this opinion really does require a “law enforcement” approach to combatting terrorism. It means that the “war on terrorism” is becoming more and more a metaphor, at least within the U.S., because under this approach, the U.S. military has essentially no role to play in detaining alleged terrorists who are within the United States (outside is another matter, but that may be eventually shot down as well).
I am beginning to think that the law enforcement approach is more practical and attractive. I don’t think, however, that Congress or the President agree with this approach and I doubt that the law enforcement approach is constitutionally required.
*UPDATE: For a more detailed and thoughtful analysis along the same lines as this post, see Orin Kerr’s analysis here.
On Balkinization, they also emphasize that al-Marri was already in civilian custody when he was removed to military custody, and that this has a great deal to do with the 4th Circuit Court of Appeal’s decision that there was no justifiable reason to put him in military custody, as he was not presenting a danger to the United States at the time.
Article II clearly gives the Executive exclusive control of foreign policy and military command. Part of foreign policy is to decide what is and is not a country (should Kosovo be separated from Serbia) and what government should be recognized. These questions form the context in which to determine “the military of a government with which the U.S. is a war”. Was al Qaeda separate from or an agency of the Taliban government of Afghanistan? You can argue the case either way, just as you can argue about the relative independence of Kurdistan, Waziristan, or Kosovo. Although for thirty years there was overwhelming evidence should the matter fall within the jursidiction of any court that the government in Taiwan didn’t really rule China, the courts were smart enough to defer to the Executive’s exclusive authority over foreign policy. However, today a court claims the right to decide which foreign fighting force is entitled to the status of “enemy combatant”. Noting that it would have been the exclusive right of the administration on 9/11 to declare that al Qaeda was the de facto government of Afghanistan (Walker in Nicaragua established the principle that the recognized government of a country doesn’t have… Read more »
After Milligan, a civilian in the US may not be imprisoned by the military. The question that is presented is whether al Marri is an enemy combatant or a civilian. The administration argues that he is a enemy combatant because the President declared that he is, and that courts are deprived by the MCA of any authority to review the decision. I do not defend this position. The Fourth Circuit decision claims that he is a civilian because under Articles 2,3,and 4 of the Geneva Conventions, anyone not determined to be a POW under the Third Convention is a “civilian” by definition. This may be a perfectly servicable definition when used to determine which GC applies to a group of detainees. That is all this definition is good for. Unfortunately, many types of people who are clearly not “civilians” in any normal use of the word, or by any prior legal decision, are defined as civilians for the purpose of the GC. The eight German saboteurs in Quirin did not qualify as POWs, but the Supreme Court made it clear that they could be held and executed by the military because they were not civilians. Uniformed officers of a neutral… Read more »
In a perfect world law enforcement would be the preferred way of handling terrorists — especially those of a nationalist bent. Islamists are not, however, seeking freedom, but wanton death and destruction. The 4th Circuit notwithstanding, the definition of “battlefield” as a legal matter will have to be expanded. While many (at least some of our Courts and the ICC and others in the field of Int’l law) hold onto traditional notions of what constitutes a battlefield — al-Qaeda (and this is well documented by Lawrence Wright in The Looming Tower and dozens of other sources) and other related Islamist groups see everywhere as the battlefield. The killing zone is deep and wide and infinite. The frontlines are everywhere. I wish it were not so — however wishes don’t keep people alive — or capture or kill terrorists. With all due respect Prof. Ku — we do not have the civilian resources to process all of the terrorists we will eventually capture AND all of the other federal matters — especially as federal jurisdiction in other areas continually expands. The law enforcement option, in addition to being bad policy, is too expensive and cumbersome to be feasible, much less effective.
Howard Gilbert, what you say may be true of US national law. But to my knowledge, a state’s executive doesn’t also have such rights under international law (determining what is a state etc.).
I wonder how exactly the fact that the US national law gives the executive exclusive control of foreign policy and military command comes into play when interpreting the Geneva Conventions. Don’t treaties and their wording, including questions of what state the US is in an armed conflict with, have to be interpreted autonomously by US courts? (I don’t know very much about how US national law deals with treaties.)
Howard Gilbert, You seem to be saying that the Geneva Conventions leave us with but two categories: civilian or POW. (You also seem to believe that Judge Motz shares your claim, but I didn’t get that impression from his opinion in this case nor is such a claim necessary to reach his conclusion.) In fact, the Geneva Conventions provide distinctions between several different groups, but most importantly between civilians and combatants, not just civilians and POWs. (For example, see Article 5 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War.) Combatants which fullfil certain criteria, namely those listed in Article 4 of the Geneva Convention (III) relative to the Treatment of Prisoners of War, are given protected status as Prisoners of War. This is an essential part of the law of international armed conflict: not all combatants are entitled to prisoner of war status. Article 4 lists those groups who are protected. Other combatants are excluded (at least as far as the U.S. is concerned. Signatories to the Additional Protocol 1 have different obligations.) I don’t know that this is an essential determination to make in Al-Marri’s case because “enemy combatant” status does… Read more »
Gabriel, I clearly do not believe that the GC defines only two categories, but this is a common view created by ICRC documents. It is also a central point in the chain of reasoning of the opinion. To quote (and note the citations), ‘distinguishing between “combatants” (members of a nation’s military, militia, or other armed forces, and those who fight alongside them) and “civilians” (all other persons) See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) arts. 2, 4, 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.’ Despite this quote and the comment, it is difficult to argue that the GC distinguishes “combatants” from others since it does not contain the word “combatant” anywhere in its text (search it yourself). The problem arises, however, from the very high level of overlap between the criteria in Article 4 that define who is entitled to POW status and the nearly identical criteria in the laws of war that define who is a lawful combatant entitled to combatant… Read more »