Bad Facts Don’t Always Make Bad Law
The Fourth Circuit panel’s 2-1 decision in the al-Marri case today has resulted in a predictable round of triumphalism among the Administration’s opponents. I am here to argue that, even though I agree with the result, that triumphalism is inapposite. The case was not, as al-Marri’s lawyer (from whom the hyperbole is at least understandable) would have it, “landmark victory for the rule of law and a defeat for unchecked executive power.”
Bad facts make bad law — and people credibly accused of being al-Qaida sleeper agents have the potential to make wretched law. All the more reason the Administration should never have pre-empted his criminal trial to get their hands on him when they did. Al-Marri was indicted on several criminal charges, for which he could have been tried and imprisoned if convicted. The indictments were dismissed at the Adminstration’s request so that they could take this ‘enemy combatant’ route instead. Even without the benefit of hindsight, this was a very poor choice.
In truth, the question presented is much narrower than most of the commentary I’ve seen would have it. The dissenting judge narrows down the real dispute quite well. The case hinges in large part on whether or not al-Marri’s detention falls within Hamdi (in which the SupCt affirmed the detention of Bin Laden’s driver, an American citizen). The majority finds he does not because (to reduce a lot of complexity to an overly simple phrase) Hamdi was captured in a theater of war and al-Marri was not. Judge Hudson thinks that that definition of ‘enemy combatant’ is too narrow:
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.
Judge Hudson points out that in Padilla “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.” He believes, therefore, that the same rules as applied to bin Laden’s driver should apply to “surreptitious al Qaeda agents operating within the continental United States.” That’s not a frivolous argument, even if I myself agree that, when combined with the very different circumstances of capture, the legal residency issue over-rides it on general principle.
It will probably surprise many, but one of the panel’s best arguments against the Government’s position is that indefinite detention of al-Marri as an enemy combatant is prohibited by the PATRIOT ACT. One thing everyone seems to have wrong is the oft-repeated contention that this was a major Constitutional decision. The panel expressly sidestepped the Constitutional question as to whether or not the Military Commissions Act’s habeus provisions are Constitutional as applied to resident aliens (rightly so, under judicial canon) by finding that al-Marri’s detention met only one, but not both, of the two requirements in that portion of the MCA. They also found that, while the Fourth Circuit did indeed interpret the AUMF to include the power to detain enemy combatants (that precedent is still good law; the case was mooted before the SupCt could rule on the matter), that power is a general, implied one. Since specific provisions in the PATRIOT ACT relating to “terrorist aliens” conflict with the broader, unspecified AUMF power as they relate to the specific facts of this case, the panel (quite reasonably) applied the specific rather than the general.
In short, this was a statutory interpretation decision, not a Constitutional one. The fact that I (and many others) would still have agreed with it had it been based on the Due Process Clause rather than interpretation of conflicting statutes doesn’t change that.
Assuming the panel’s decision survives a request to be reheard en banc, what the SupCt will do is actually an open question. The Supremes expressly charged the lower courts with exploring the boundaries of the Presidential powers at issue here in Hamdan. They might, therefore, simply deny certiorari to see what the other circuits do with similar cases. Or they might disagree with the panel’s one point of unanimity — that they had jurisdiction to hear the case — and vacate it on jurisdictional grounds. But if I had to guess, I’d say that they’ll agree with the Fourth Circuit that the two-prong test in the MCA wasn’t met in full and avoid, as is their wont, the Constitutional question until such time as it’s presented directly (which may be never; the news articles seem to suggest that al-Marri’s status is unique).
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Yes, a very important point. The court repeatedly cited statute and said the detention was not authorized by Congress, seemingly implying that Congress could authorize that sort of detention.
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One could read it that way. But it wouldn’t do to make too much of that aspect, either. Courts don’t like deciding questions on Constitutional grounds if they can be decided on ‘lower level’ grounds instead.
This panel was able to avoid the Constitutional question because it could use statutes instead. That isn’t to say that they’d have reached a different result if the statutes had been different. As I read the tone of the opinion, I’m pretty sure they’d have found a way to strike down a statute authorizing such a detention.
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[...] Cingular/AT&T, T-Mobile, Sprint cell phones document.write(”) placeAd2(‘news/slate’,’88×31′,false) function clearAllTabs() { for(k=1;kMeaningless not just because President Bush had already said that a ‘no confidence’ measure wasn’t ‘going to determine … who serves in my government,’ but meaningless in that the measure’s supporters and opponents now act as if what happened last night didn’t really happen.”Some Republicans opposed the measure in the Senate—calling it a meaningless political move—while maintaining that they didn’t exactly support Gonzales, either. Arlen Specter actually voted for the measure but encouraged other Republicans to vote against it, prompting Wonkette to scold, “Arlen Specter takes stands like an alcoholic father forbidding his kids from having a drink.” Wryly noting Joe Lieberman’s nay vote, Kagro X at far-left Daily Kos suggests an impeachment vote might actually win the support of Repulicans: “Senators voting as the jury in an impeachment trial … would find most of [their] excuses stripped away (not that they wouldn’t invent others). There very definitely is such a thing as impeaching an Attorney General, removal from office upon conviction is automatic, and the evidence against him will have been combed over, piece by piece, in a very public trial on the floor of the United States Senate, and beamed across the country on C-SPAN2.”From the other side, conservative Jiblog endorsed the Republican stand: “Gonzales is awfully tough to defend, but in fairness, many Republicans weren’t sold on him to begin with. The GOP has allowed the Democrats to kick the hell out of them for years, though, and a nominal stand had to be made on Gonzales. Here’s to hoping that the yellow bellied Republicans start fighting back on ground more favorable damn soon.”Read more on the continuing Alberto Gonzales fracas.Not all in a name: The 4th Circuit ruled Monday that the government can’t indefinitely detain a U.S. resident by declaring him or her an “enemy combatant,” specifically concluding that the United States must either charge or release Ali Saleh Kahlah al-Marri, a Qatari suspected of aiding al-Qaida. Conservative bloggers are furious, liberals delighted.Moaning in frustration, Rightwing Nuthouse’s Rick Moran perceives the ruling as a rebuke not just to the administration but to the validity of the war on terror. He writes: “Are we at war or not? … [I]f we are at war, we better get deadly serious about making sure that terrorists—whether they be legal residents or not—can’t use the Constitution as a shield to help them escape justice.” Soberly, Ed Morrissey at Captain’s Quarters lays out his concerns: “The case presented the courts with dire consequences on both sides. If executive power remained completely unchecked, any non-citizen could have been held without trial indefinitely simply by designating him an enemy combatant. However, if the ability to hold foreign sleeper agents gets removed, it would force the government to hold open trials in criminal courts to keep these agents from returning to their efforts to commit acts of terrorism and sabotage against us all.”Liberals have been quick to applaud the ruling. Jonathan Stein at Mother Jones’ MoJoBlog crows that “the judiciary (even the military judiciary) is in revolt, protecting our civil liberties from the Bush Administration’s out-of-control war on terror tactics.” He glosses the decision: “On a macro scale, the ruling says you can’t round people up in the United States, call them terrorism suspects, and then hold them in shady places while making shady claims about trying them in shady courts. It’s a victory for anyone who didn’t want to see a Children of Men scenario play out within our borders.”But Dodd Harris at Outside the Beltway thinks reactions are overblown. Reacting to the liberal euphoria, he writes: “I am here to argue that, even though I agree with in the result, that triumphalism is inapposite. The case was not, as al-Marri’s lawyer (from whom the hyperbole is at least understandable) would have it, ‘landmark victory for the rule of law and a defeat for unchecked executive power.’ … [T]his was a statutory interpretation decision, not a Constitutional one.”Read more reactions to the al-Marri ruling.Bad Apple: Steve Jobs’ keynote address yesterday at Apple’s World Wide Developer Conference disappointed fanboys hoping for iPhone news and hardware announcements. Revelations were mostly limited to further previews of the next version of Apple’s operating system, Leopard. Philip Elmer-DeWitt called the presentation “long on flash, short on news” in Business 2.0′s Apple 2.0 blog, noting that “the experience was not unlike the proverbial meal at a Chinese restaurant. The items came in a menu. The food was presented well and tasted great. But half an hour later you were hungry again. Actually, it didn’t take half an hour. A lot of people were hungry before they left the hall.”Gizmodo’s Jesus Diaz was especially acid about Apple’s decision not to offer developers a tool kit to develop software for the upcoming iPhone as expected. He seethes, “According to Apple, ‘no software developer kit is required for the iPhone.’ However, the truth is that the lack of an SDK means that there won’t be a killer application for the iPhone. It also means the iPhone’s potential as an amazing computing and communication platform will never be realized. And because of this I don’t think the iPhone will be as revolutionary as it could be. That’s a real heart breaker.”Meanwhile, blogger Fake Steve Jobs apologized to his fans for a weak performance: “Let’s be honest. It wasn’t that good. I know it and you know it. I’m not going to spin it or lie to you. I’ve done better. Way better.”Read more reactions to the WWDC keynote.back to topPRINTÂ Â Â Â Â Â Â DISCUSSÂ Â Â Â Â Â Â E-MAILÂ Â Â Â Â Â Â RECOMMENDDiggRedditdel.icio.usFurlMa.gnolia.comSphereCLOSEBlake Wilson is a Slate assistant editor. Questions or comments? Please e-mail document.write(“”)document.write(“todaysblogs”+”@”+”slate.com”);document.write(”);. (Reader e-mail may be quoted by name unless author stipulates otherwise.)Join the Fray: our reader discussion forumWhat did you think of this article?POST A MESSAGEÂ |Â READ MESSAGESalso in slateProof That Tony Soprano Was KilledHitchens: I Can’t Believe I’m Writing About Paris HiltonAn Immigrant’s Life Is Worth One-Fifth of an American’sIn Defense of Greedy Brides build your own slatefeedback | about us | help | advertise | newsletters | mobile2007 Washington Post.Newsweek Interactive Co. LLCUser Agreement and Privacy Policy | All rights reservedplaceAd(12,’slate.news/marginad’)also in slateArts & LifeProof That Tony Soprano Was KilledNews & PoliticsHitchens: I Can’t Believe I’m Writing About Paris HiltonBusiness & TechAn Immigrant’s Life Is Worth One-Fifth of an American’sArts & LifeIn Defense of Greedy Brides .onion_feed {margin:6px 0 6px 0;width:283px;padding:1px;border:1px solid #393;background-color:#FFF;} .onion_feed ul { list-style:none;margin:6px;padding:0;} .onion_feed ul li {padding:6px 0 6px 0;margin:0;font:bold 11px/15px Arial;border-top:1px solid #393;} .onion_feed a:link {color:#000;text-decoration:none;} .onion_feed a:visited {color:#666;text-decoration:none;} .onion_feed a:hover { text-decoration:underline;} #onion_logo {display:block;background-color:#FFF;text-align:center;} [...]
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