Circuit Judge Diana Gribbon Motz

As noted in the previous post, the Fourth Circuit ordered the government to release Al Saleh al-Marri from military detention. The decision raises a number of significant legal issues and has already been the subject of excellent analysis by Marty Lederman, Bobby Chesney, Lyle Denniston, Julian Ku, and others. In reviewing Judge Motz's opinion, a couple of initial points strike me.

First, as Marty's analysis reveals, the case strongly supports the claim that al-Marri was subjected to "enhanced interrogation techniques"  while he was under DOJ custody and that he was transfered to DoD custody so that he could be subjected to more such techniques. [UPDATE: 6/13/07, See the next post]As Marty notes, in footnote 16 on page 59, the court says:

The Government’s treatment of others renders its decision to halt al-Marri’s criminal prosecution -- on the eve of a pre-trial hearing on a suppression motion -- puzzling at best. [NOTE: The court had explained earlier that the motion to suppress was based on claims that torture had been used to obtain the evidence.] Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process.  We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that “indefinite detention for the purpose of interrogation is not authorized.”  542 U.S. at 521.  We note, however, that not only has the Government offered no other explanation for abandoning al-Marri’s prosecution, it has even propounded an affidavit in support of al-Marri’s continued military detention stating that he “possesses information of high intelligence value.”  See Rapp Declaration.  Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an “enemy combatant” only after he became a “hard case” by “reject[ing] numerous offers to improve his lot by . . . providing information.”  John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006).

It does seem remarkable that he was removed from the criminal justice system on the eve of a hearing on the suppression motion. What I also find curious is that he would be subjected to torture or some other improper interrogation while under DOJ jurisdiction. It suggests to me that al-Marri may have been "visited" by interrogators  from  the intelligence community or DoD while he was under DOJ juridiction.

Second, I also find it quite interesting that the court concluded, in effect, that a "terrorist" associated with al Qaeda-- and presumably with any other non-state actor engaged in hostile acts against the United States-- could never be labled an "enemy combatant" unless that person were actually fighting with an enemy state. The court notes:

In Hamdan, the Court held that because the conflict between the United States and al Qaeda in Afghanistan is not “between nations,” it is a “‘conflict not of an international character’” -- and so is governed by Common Article 3 of the Geneva Conventions.  See 126 S. Ct. at 2795; see also id. at 2802 (Kennedy, J., concurring). Common Article 3 and other Geneva Convention provisions applying to non-international conflicts (in contrast to those applying to international conflicts, such as that with Afghanistan’s Taliban government) simply do not recognize the “legal category” of enemy
combatant.  See Third Geneva Convention, art. 3, 6 U.S.T. at 3318. As the International Committee of the Red Cross -- the official codifier of the Geneva Conventions -- explains, “an ‘enemy combatant’ is a person who, either lawfully or unlawfully, engages in hostilities for the opposing side in an international armed conflict;” in contrast, “[i]n non-international armed conflict combatant status does not exist.”  Int’l Comm. of the Red Cross, Official Statement: The Relevance of IHL in the Context ofTerrorism, at 1, 3 (Feb. 21, 2005), http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/terrorism-ihl-210705 (emphasis added).13

Perhaps for this reason, the Government ignores Hamdan’s holding that the conflict with al Qaeda in Afghanistan is a non- international conflict, and ignores the fact that in such conflicts the “legal category” of enemy combatant does not exist. (emphasis added)

As Bobby Chesney summarizes:

The opinion precludes military detention altogether for persons based merely on their association with or activities on behalf of al Qaeda, except in the limited circumstance in which they also bore arms for a foreign government during armed conflict with the U.S. (viz., except insofar as they were armed in the field in Afghanistan in fall 2001).

This is a somewhat surprising conclusion.  While it seems to me that al-Marri should have been released from military custodyfor a variety of reasons, I am not sure I agree with the court in its conclusion that persons associated with a non-state terrorist group can only be enemy combatants if they are fighting with an enemy state. Members of non-state actors can engaged in warfare against states and should be able to be recognized as combatants-- indeed, depending upon how they comport themselves, they should even be entitled to POW statuts under the Geneva Convention. But let me elaborate on this at length in a subsequent post.