Guest Blogger on the Al-Marri Case

Here is a guest post by by my UC Davis colleague Carlton Larson on the case:

Yesterday the United States Court of Appeals for the Fourth Circuit heard arguments in a case challenging the detention of the only remaining “enemy combatant” detained in the United States. Ali Saleh Kahlah Al-Marri is a citizen of Qatar who lawfully entered the U.S. with his family on September 10, 2001 to pursue graduate studies at Bradley University in Peoria, Illinois. FBI agents arrested Al-Marri in December 2001, alleging that he was an Al Qaeda sleeper agent. His case proceeded in federal criminal courts until June 2003, when George Bush suddenly declared Al-Marri an “enemy combatant” and ordered his removal to military custody, where he has remained ever since.

The case raises fundamental questions about the scope of military jurisdiction over non-citizens on United States soil. The government has argued, and the lower court agreed, that Al-Marri’s lack of United States citizenship gives him significantly fewer constitutional rights than a United States citizen in the same position. If this argument is accepted, the military could detain indefinitely any non-citizen on the simple assertion that the individual is a threat to the United States. Every non-citizen, regardless of entry status, could in effect be “disappeared.” Such extraordinary unchecked power over the lives of individuals was denied even to the king of England; it is unfathomable that the United States Constitution would grant such power to the President of the United States.

The distinction between citizen and non-citizen with respect to military jurisdiction is also unfounded as an historical matter. In my University of Pennsylvania Law Review article “The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem” (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885584 and at http://www.pennumbra.com/issues/article.php?atid=8), I argue that the historic dividing line between military and civilian jurisdiction has never been citizen and non-citizen, but between those persons who owe allegiance to the United States and those who do not. Significantly, almost every non-citizen present on United States soil is deemed to owe temporary allegiance to the United States while he or she is here and can be subject to prosecution for treason. I argue that persons subject to the law of treason in civilian court cannot also be subject to military jurisdiction without undermining the Constitution’s Treason Clause.

The case also has implications for the Military Commissions Act of 2006, which withdraws certain habeas corpus rights only from non-citizens. Nothing in the Constitution suggests that non-citizens present in the United States can be stripped of habeas corpus in this fashion, and the primary effect will be to ensure that the detainee is “disappeared” completely without even a whisper in court.

The Fourth Circuit may resolve this issue correctly, rather than sanction the government’s assault on America’s immigrants and visitors. Either way, it is quite likely that this matter will eventually be taken to the U.S. Supreme Court.

KJ