As you probably know by now, the Supreme Court has just granted cert in Al-Marri v. Pucciarelli (08-368), the case involving the sole person currently detained in the U.S. as an enemy combatant (Al-Marri is a non citizen who was arrested in the U.S. after 9/11, held on relatively innocuous charges for a time, and then transferred to military custody as an enemy combatant based on intelligence indicating that he was an al Qaeda operative; the Fourth Circuit recently issued a splintered en banc decision upholding the substantive grounds for his detention, but requiring greater procedural safeguards (shades of Hamdi).
The Supreme Court's decision to review that outcome raises a host of important issues, and no doubt there will be much blogging and writing about the merits in the months ahead. But the questions that interest me at the moment are these:
Will Al-Marri be transferred to civilian custody, as Padilla was, prior to the decision? Recall that the Bush Administration transferred Padilla to civilian custody for criminal prosecution after a favorable Fourth Circuit ruling and before the Supreme Court could rule. Might the same thing occur here? This would require the government to have sufficient admissible evidence to make out a viable case, of course, so the option may or not be realistic. But let's assume it might be possible. When this happened in Padilla, the Court wrestled with whether to treat the military detention issue as moot; ultimately, it did, though Justice Kennedy warned that the Court would reengage quickly if Padilla were put back in military detention (which reminds me: what year does Padilla's sentence end?). Well, now we have the prospect of something similar occurring in Al-Marri's case. If it does, would the Court again treat the issue as moot? Perhaps not.
What will the Obama Administration do? Of course, the Bush Administration won't be making the decisions for much longer, as a friend just reminded me. What version of detention power will the Obama Administration defend in this case, if any? Will the Obama administration instead seek to moot the issue by transferring Al-Marri to civilian custody for prosecution in the event the Bush Administration has not already done so?
Padilla was prosecuted for crimes committed from 1996 to 1998, two years before he enlisted in the Afghan Army and four years before he was captured at the border attempting to enter the US while on a military mission of sabotage. He was never charged, nor was there ever any claim that he could be charged, for anything he did after enlisting. His mission would have involved an attack and the death of thousands of American civilians. It would have been a war crime, but he was captured outside the US. International law has no concept of conspiracy. It is not a war crime to plan, or train for, or be ordered to commit a war crime, and Padilla never had an opportunity to carry out his mission.
Al Marri was also a soldier in the Afghan Army and he shared with Padilla (and the 9/11 hijackers) the same commanding officer, Kahlid Sheikh Muhammed. However, he entered the US the day before 9/11 and was arrested months later. Unlike Padilla, he committed no crimes long ago when he was a civilian, but he did commit bank fraud during the few months he was in the US pretending to be a civilian.
A saboteur has no combatant immunity once he enters the US pretending to be a civilian, so al Marri could be prosecuted for the bank fraud, except that the Federal Judge dismissed those charges with prejudice when he was transferred to military custody. Although al Marri may have read some articles on various types of terrorism, the government's claim is that his military mission in the US was to sabotage the US economy by bank fraud. Unlike Padilla, he never had a mission to harm a single person or damage any property. So if bank fraud is off the table, all you can do is deport him.
It is difficult to claim al Marri provided "material support to a terrorist organization" when the government narrative is that he got them to give him money to come to the US for the purpose of attacking our economy. His estimate of his own computer skills were wildly exaggerated. In the end all he could do was download lists of credit card numbers that better hackers than he had stolen and posted to hacker bulletin boards.
He may have promised Bin Laden and KSM that he would sabotage the US economy, but it is hard to claim actual sabotage if his plan to damage the US economy is roughly equivalent to a plan to sell counterfeit watches and handbags out of the back of a truck. Since his mission involved no weapons, explosives, or physical attack, is he really a saboteur in international law? Or his he really a phony "big shot" who suckered Al Qaeda into giving him money to do something he wasn't actually able to do.
Posted by: Howard Gilbert | December 05, 2008 at 04:12 PM
DISCLAIMER: I worked on all of the Padilla habeas litigation from day 1, and was an advisor on national security issues to the criminal defense team. I authored an Amicus Brief in al-Mari early on in his detention.
Padilla was captured at O'Hare Airport. Based upon the "material support" indictment against the so-called "Lackawana 6" [Note: I advised 2 of the 6's counsel in that case], there was considerable precedent to indict Padilla for simply attending the camps in Afghanistan.
Assuming that Ashcroft's claims of his being the so-called "dirty bomber" were remotely accurate [and they weren't], Padilla was subject to prosecution under 18 USC 832 [material support for WMD]; 18 USC 2332b [conspiracy to commit international terrorism]; 18 USC 2381 [treason]; and consiracy for any number of offenses.
Whether or not planning or training to commit a war crime IS a war crime, is not at all clear, because it very well could be an "attempt."
One must be a "lawful combatant" before you can have "combatant immunity" and neither Padilla nor al-Marri came close to qualifying.
With respect to Prof. Chesney's questions, the other possible disposition is a Hamdi-type of "deportation" agreement.
Posted by: Don Rehkopf | January 09, 2009 at 06:17 PM