23040 aclu apx part 1 · before williams, chief judge, and w ilkin-son, niemeyer, michael, motz,...

ON REHEARING EN BANCPUBLISHED

UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

__________

No. 06-7427

__________

ALI SALEH KAHLAH AL-MARRI,Petitioner-Appellant,

and

MARK A. BERMAN, as next friend,Petitioner,

—v.—

COMMANDER JOHN PUCCIARELLI,U.S.N., Consolidated Naval Brig.,

Respondent-Appellee.

__________

SPECIALISTS IN THE LAW OF WAR; PROFESSORSOF EVIDENCE AND PROCEDURE; UNITED STATESCRIMINAL SCHOLARS AND HISTORIANS; FORMERSENIOR JUSTICE DEPARTMENT OFFICIALS; CEN-

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23040 • ACLU • APPENDIX part: 1 (revised 10/1/07) ls 2:48 9/9/08, 9/12/ 11:49 + 5:49, 9/15 11:23

TER FOR NATIONAL SECURITY STUDIES; AMERI-CAN-ARAB ANTI-DISCRIMINATION COMMITTEE;ASIAN-AMERICAN JUSTICE CENTER; NATIONALIMMIGRANT JUSTICE CENTER; HUMAN RIGHTSFIRST; HUMAN RIGHTS WATCH; PROFESSORS OFCONSTITUTIONAL LAW AND FEDERAL JURISDIC-TION; NATIONAL ASSOCIATION OF CRIMINALDEFENSE LAWYERS; HATE FREE ZONE; MUSLIMADVOCATES; WORLD ORGANIZATION FOR HUMANRIGHTS USA; DAVID M. BRAHMS, BRIGADIERGENERAL; DONALD J. GUTER, REAR ADMIRAL;MERRILL A. MCPEAK, RETIRED GENERAL,

Amici Supporting Appellant.

Appeal from the United States District Courtfor the District of South Carolina,

at Charleston.Henry F. Floyd, District Judge.

(2:04-cv-002257-HFF)

Argued: October 31, 2007

Decided: July 15, 2008

Before WILLIAMS, Chief Judge, and WILKIN-SON, NIEMEYER, MICHAEL, MOTZ, TRAXLER,

KING, GREGORY, and DUNCAN, Circuit Judges.

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Reversed and remanded by published per curiamopinion. Judge Motz wrote an opinion concurringin the judgment, in which Judges Michael, King,and Gregory joined. Judge Traxler wrote an opin-ion concurring in the judgment, in Part II of

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which Judge Niemeyer joined. Judge Gregorywrote an opinion concurring in the judgment.Chief Judge Williams wrote an opinion concur-ring in part and dissenting in part, in whichJudge Duncan joined. Judge Wilkinson wrote anopinion concurring in part and dissenting in part.Judge Niemeyer wrote an opinion concurring inthe judgment in part and dissenting in part.Judge Duncan wrote an opinion concurring inpart and dissenting in part. Judge Shedd did notparticipate in this case.

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COUNSEL

ARGUED: Jonathan L. Hafetz, BRENNAN CENTERFOR JUSTICE, New York University School ofLaw, New York, New York, for Appellant. Gre-gory George Garre, Deputy Solicitor General,Office of the Solicitor General, UNITED STATESDEPARTMENT OF JUSTICE, Washington, D.C., forAppellee. On Brief: Andrew Savage, III, SAVAGE& SAVAGE, P.A., Charleston, South Carolina;Lawrence S. Lustberg, Mark A. Berman, GIB-BONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE, P.C., Newark, New Jersey, forAppellant. Paul D. Clement, Solicitor General,Reginald I. Lloyd, United States Attorney, Dis-trict of South Carolina, Eric D. Miller, Assistantto the Solicitor General, Kevin F. McDonald,Assistant United States Attorney, Claire J.Evans, UNITED STATES DEPARTMENT OF JUS-TICE, Criminal Division, Appellate Section,Washington, D.C., for Appellee. Jenny S. Mar-

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tinez, Stanford, California; Allison Marston Dan-ner, Nashville, Tennessee; Valerie M. Wagner,Daniel B. Epstein, DECHERT, L.L.P., Palo Alto,California, for Specialists in the Law of War,Amicus Supporting Appellant. Jonathan M.Freiman, NATIONAL LITIGATION PROJECT of theAllard Lowenstein International Human RightsClinic, Yale Law School, New Haven, Connecti-cut, for Professors of Evidence and Procedure,Amicus Supporting Appellant. Hope R. Metcalf,WIGGIN AND DANA, L.L.P., New Haven, Con-necticut, for United States Criminal Scholars andHistorians, Amicus Supporting Appellant. JamesC. Schroeder, Gary A. Isaac, Heather M. Lewis,MAYER, BROWN, ROWE & MAW, L.L.P., Chicago,Illinois, for Former Senior Justice DepartmentOfficials, Amicus Supporting Appellant. KateMartin, Joseph Onek, CENTER FOR NATIONALSECURITY STUDIES, Washington, D.C., PaulSmith, Joshua A. Block, JENNER & BLOCK,L.L.P., New York, New York, for Center forNational Security Studies, Amicus SupportingAppellant; Lema Bashir, AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE, Washington, D.C.,for American-Arab Anti-Discrimination Com-mittee, Amicus Supporting Appellant; Aimee J.Baldillo, ASIAN AMERICAN JUSTICE CENTER,Washington, D.C., for Asian-American JusticeCenter, Amicus Supporting Appellant; Mary MegMcCarthy, Tara Magner, NATIONAL IMMIGRANTJUSTICE CENTER, Chicago, Illinois, for NationalImmigrant Justice Center, Amicus SupportingAppellant. Gabor Rona, Hina Shamsi, HUMAN-RIGHTS FIRST, New York, New York; JenniferDaskal, HUMAN RIGHTS WATCH, Washington,

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D.C.; Donald Francis Donovan, Catherine M.Amirfar, Tali Farimah Farhadian, DEBEVOISE &PLIMPTON, L.L.P., New York, New York, forHuman Rights First and Human Rights Watch,Amici Supporting Appellant. Gerald L. Neuman,Cambridge, Massachusetts; Harold Hongju Koh,New Haven, Connecticut; Sarah H. Cleveland,Cambridge, Massachusetts; Margaret L. Sanner,REED SMITH, L.L.P., Richmond, Virginia, for Pro-fessors of Constitutional Law and Federal Juris-diction, Amicus Supporting Appellant. TimothyJ. Finn, Julia E. McEvoy, Katherine E. Stern,JONES DAY, Washington, D.C., for National Asso-ciation of Criminal Defense Lawyers, AmicusSupporting Appellant. Shankar Narayan, HATEFREE ZONE, Seattle, Washington, for Hate FreeZone, Amicus Supporting Appellant; FarhanaKhera, MUSLIM ADVOCATES, Kensington, Mary-land, for Muslim Advocates, Amicus SupportingAppellant. Morton Sklar, Executive Director,Joseph Husty, Legal Intern, WORLD ORGANIZA-TION FOR HUMAN RIGHTS USA, Washington,D.C., with the assistance of Law Student Con-tributors: Melissa Keyes (U. of CA at HastingsLaw School), Charles Wait, Aaron Clark-Rizzio,Kennon Scott, Binish Hasan, Maria Tennyson,Olivia Maginley and Meredith Angelson (NewYork Univ. Law Sch.), Simon Moshenberg, JesseTownsend, Stephanie Hays, Sameer Ahmed andNicholas Pederson (Yale Law School), MattSadler (B.C. Law School), for World Organizationfor Human Rights USA, Amicus SupportingAppellant. David H. Remes, Enrique Armijo,John F. Coyle, COVINGTON & BURLING, L.L.P.,Washington, D.C., for David M. Brahms,

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Brigadier General, Donald J. Guter, Rear Admi-ral, Merrill A. McPeak, Retired General, AmiciSupporting Appellant.

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OPINION

PER CURIAM:Ali Saleh Kahlah al-Marri filed a petition for a

writ of habeas corpus challenging his militarydetention as an enemy combatant. After the dis-trict court denied all relief, al-Marri noted thisappeal. A divided panel of this court reversed thejudgment of the district court and ordered thatal-Marri’s military detention cease. See Al-Marriv. Wright, 487 F.3d 160 (4th Cir. 2007).

Subsequently, this court vacated that judgmentand considered the case en banc. The parties pre-sent two principal issues for our consideration:(1) assuming the Government’s allegations aboutal-Marri are true, whether Congress has empow-ered the President to detain al-Marri as anenemy combatant; and (2) assuming Congresshas empowered the President to detain al-Marrias an enemy combatant provided the Govern-ment’s allegations against him are true, whetheral-Marri has been afforded sufficient process tochallenge his designation as an enemy combat-ant.*

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* We deny the Government’s motion to dismiss thiscase for lack of jurisdiction. The Government relied on sec-tion 7 of the Military Commissions Act (MCA) of 2006, Pub.

Having considered the briefs and arguments ofthe parties, the en banc court now holds: (1) by a5 to 4 vote (Chief Judge Williams and JudgesWilkinson, Niemeyer, Traxler, and Duncan vot-ing in the affirmative; Judges Michael, Motz,King, and Gregory voting in the negative), that,if the Government’s allegations about al-Marriare true, Congress has empowered the Presidentto detain him as an enemy combatant; and (2) bya 5 to 4 vote (Judges Michael, Motz, Traxler,King, and Gregory voting in the affirmative;Chief Judge Williams and Judges Wilkinson,Niemeyer, and Duncan voting in the negative),that, assuming Congress has empowered thePresident to detain al-Marri as an enemy com-batant provided the Government’s allegationsagainst him are true, al-Marri has not beenafforded sufficient process to challenge his des-ignation as an enemy combatant.

Accordingly, the judgment of the district courtis reversed and remanded for further proceedingsconsistent with the opinions that follow.

REVERSED AND REMANDED

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L. No. 109-366, 120 Stat. 2600, which amended the DetaineeTreatment Act (DTA) of 2005, Pub. L. No. 109-148,§ 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en bancargument in this case, the Supreme Court declared section7 of the MCA unconstitutional. See Boumediene v. Bush, 553U.S. ___, ___, slip op. at 64 (June 12, 2008). The Governmentnow concedes that we have jurisdiction over al-Marri’shabeas petition.

DIANA GRIBBON MOTZ, Circuit Judge, concurringin the judgment:

For over two centuries of growth and struggle,peace and war, the Constitution has secured ourfreedom through the guarantee that, in theUnited States, no one will be deprived of libertywithout due process of law. Yet more than fiveyears ago, military authorities seized Ali SalehKahlah al-Marri, an alien lawfully residing here.He has been held by the military ever since—without criminal charge or process. He has beenso held, despite the fact that he was initiallytaken from his home in Peoria, Illinois, by civil-ian authorities and imprisoned awaiting trial forpurported domestic crimes. He has been so held,although the Government has never alleged thathe is a member of any nation’s military, hasfought alongside any nation’s armed forces, orhas borne arms against the United States any-where in the world. And he has been so held,without acknowledgment of the protectionafforded by the Constitution, solely because theExecutive believes that his indefinite militarydetention—or even the indefinite military deten-tion of a similarly situated American citizen—isproper.

While criminal proceedings were underwayagainst al-Marri, the President ordered the mil-itary to seize and detain him indefinitely as anenemy combatant. Since that order, issued inJune of 2003, al-Marri has been imprisoned with-out charge in a military jail in South Carolina.Al-Marri petitions for a writ of habeas corpus tosecure his release from military imprisonment.

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The Government defends this detention, assert-ing that al-Marri associated with al Qaeda and“prepar[ed] for acts of international terrorism.” Itmaintains that the President has both statutoryand inherent constitutional authority to subjectto indefinite military detention al-Marri or any-one else who associates with al Qaeda and “pre-pare[s]” for such acts. If the Governmentaccurately describes al-Marri’s conduct, he hascommitted grave crimes, but a majority of the enbanc court holds, as the panel did, that the judg-ment of the district court must be reversed.1

We would also grant al-Marri habeas relief.Even assuming the truth of the Government’sallegations, they provide no basis for treating al-Marri as an enemy combatant or as anythingother than a civilian. This does not mean that al-Marri, or similarly situated American citizens,would have to be freed. Like others accused ofterrorist activity in this country, from the Okla-homa City bombers to the convicted September11th conspirator, they could be tried on criminalcharges and, if convicted, punished severely. Butthe Government would not be able to subjectthem to indefinite military detention.

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1 As noted above, the en banc court—like the panel—has concluded that the judgment of the district court deny-ing Ali Saleh Kahlah al-Marri habeas relief must bereversed. The opinion that follows incorporates some of therationale originally contained in the now vacated panel opin-ion, Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). It alsoincludes substantial additions and revisions applying inter-vening Supreme Court precedent and responding to thearguments on rehearing of the Government and of our col-leagues. See, e.g., infra at 7-8 & n.2, 12, 16 & n.6, 19-21 &nn.9-10, 30, 31-33, 34-52 & nn.18-25, 55, 57-58, 63-64.

With regret, we recognize that this view doesnot command a majority of the court. Our col-leagues hold that the President can order themilitary to seize from his home and indefinitelydetain anyone in this country—including anAmerican citizen—even though he has neveraffiliated with an enemy nation, fought alongsideany nation’s armed forces, or borne arms againstthe United States anywhere in the world. Wecannot agree that in a broad and general statute,Congress silently authorized a detention powerthat so vastly exceeds all traditional bounds. Noexisting law permits this extraordinary exerciseof executive power.2 Even in times of nationalperil, we must follow the law, lest this countrycease to be a nation of laws. For “[l]iberty andsecurity can be reconciled; and in our systemthey are reconciled within the framework of thelaw.” Boumediene v. Bush, 553 U.S. ___, ___, slipop. at 70 (June 12, 2008).

Although our preferred disposition does notcommand a majority of the court, a majority doesrefuse to affirm the judgment of the districtcourt. To give effect to the conclusion of thatmajority, we join in “ordering remand on terms

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2 One of the dissenters repeatedly insists that we arereally suggesting that the Constitution prohibits the deten-tion of al-Marri. See, e.g., post at 129, 144-45, 157, 159 n.5,175, 183 (Wilkinson, J., concurring in part and dissenting inpart). In fact, the panel explicitly refused to so hold, see Al-Marri, 487 F.3d at 193 n.17, and we refuse to do so here.Because Congress has not empowered the President to sub-ject civilians within the United States to indefinite militarydetention, we need not, and do not, determine whether sucha grant of authority would violate the Constitution.

closest to those” we would prefer. See Hamdi v.Rumsfeld, 542 U.S. 507, 553 (2004) (Souter, J.,concurring in part, dissenting in part, and con-curring in the judgment); see also Screws v.United States, 325 U.S. 91, 134 (1945) (Rutledge,J., concurring in the result). In this case, thatmeans that we join in a judgment reversing andremanding for evidentiary proceedings to deter-mine whether al-Marri actually is an enemy com-batant and so subject to military detention.Although we believe that Congress in the Autho-rization for Use of Military Force (AUMF), 115Stat. 224, note following 50 U.S.C.A. § 1541 (West2003), has not authorized al-Marri’s militarydetention, the evidentiary proceedings envisionedby Judge Traxler will at least place the burden onthe Government to make an initial showing that“the normal due process protections available toall within this country” are impractical or undulyburdensome in al-Marri’s case and that thehearsay declaration that constitutes the Gov-ernment’s only evidence against al-Marri is “themost reliable available evidence” supporting theGovernment’s allegations. Post at 94-95.

In reaching our conclusions, we note at the out-set that we respect our dissenting colleagues’strongly held contrary views—and the rhetoricwith which they advance those views. Butrhetoric and passion—no matter how sincere—cannot substitute for faithful application of theConstitution and controlling legal principles. Inthis respect, the dissents fail. Finding scant legalsupport for their positions, our hardworking dis-senting colleagues resort to inventing new defi-nitions of enemy combatant. Not only have none

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of their differing definitions been adopted byCongress or advocated by the Government, thesedefinitions are contrary to law-of-war principleslong followed by the Supreme Court. The absenceof authority supporting any of these divergentpositions unsurprisingly results in our col-leagues’ inability to agree on the scope of theExecutive’s power to detain or the correct processfor reviewing such detentions. Thus, while we donot doubt the dissenters’ good faith and goodwill, we must reject their approaches.

As the Supreme Court recently reminded us,“[s]ecurity subsists . . . in fidelity to freedom’sfirst principles. Chief among these are freedomfrom arbitrary and unlawful restraint and thepersonal liberty that is secured by adherence tothe separation of powers.” Boumediene, 553 U.S.at ___, slip op. at 68-69. To allow the President,in the absence of congressional authorization, toexercise military force against civilians in thiscountry is to abandon these principles. Withoutthem, neither freedom nor security can survive.

I.

Al-Marri, a citizen of Qatar, lawfully enteredthe United States with his wife and children onSeptember 10, 2001, to pursue a master’s degreeat Bradley University in Peoria, Illinois, wherehe had obtained a bachelor’s degree in 1991. Thefollowing day, terrorists hijacked four commer-cial airliners and used them to kill and inflictgrievous injury on thousands of Americans.Three months later, on December 12, 2001, FBIagents arrested al-Marri at his home in Peoria as

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a material witness in the Government’s investi-gation of the September 11th attacks. Al-Marriwas imprisoned in civilian jails in Peoria andthen New York City.

In February 2002, al-Marri was charged in theSouthern District of New York with the possessionof unauthorized or counterfeit credit card numberswith the intent to defraud. A year later, in Jan-uary 2003, he was charged in a second, six-countindictment with two counts of making a falsestatement to the FBI, three counts of making afalse statement on a bank application, and onecount of using another person’s identification forthe purpose of influencing the action of a federallyinsured financial institution. Al-Marri pleaded notguilty to all of these charges. In May 2003, a fed-eral district court in New York dismissed thecharges against al-Marri for lack of venue.

The Government then returned al-Marri toPeoria, and he was re-indicted in the CentralDistrict of Illinois on the same seven counts, towhich he again pleaded not guilty. The districtcourt set a July 21, 2003, trial date. On Friday,June 20, 2003, the court scheduled a hearing onpre-trial motions, including a motion to suppressevidence against al-Marri assertedly obtained bytorture. On the following Monday, June 23,before that hearing could be held, the Govern-ment moved ex parte to dismiss the indictmentbased on an order signed that morning by thePresident.

In the order, President George W. Bush statedthat he “DETERMINE[D] for the United States ofAmerica that” al-Marri: (1) is an enemy combat-ant; (2) is closely associated with al Qaeda; (3)

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“engaged in conduct that constituted hostile andwar-like acts, including conduct in preparationfor acts of international terrorism”; (4) “possessesintelligence . . . that . . . would aid U.S. efforts toprevent attacks by al Qaeda”; and (5) “representsa continuing, present, and grave danger to thenational security of the United States.” The Pres-ident determined that al-Marri’s detention by themilitary was “necessary to prevent him from aid-ing al Qaeda” and thus ordered the AttorneyGeneral to surrender al-Marri to the Secretary ofDefense and further directed the Secretary ofDefense to “detain him as an enemy combatant.”

The federal district court in Illinois grantedthe Government’s motion to dismiss the criminalindictment against al-Marri. In accordance withthe President’s order, al-Marri was then trans-ferred to military custody and brought to theNaval Consolidated Brig in South Carolina.

Since that time (that is, for five years) the mil-itary has held al-Marri as an enemy combatant,without charge and without any indication whenthis confinement will end. For the first sixteenmonths of his military confinement, the Govern-ment did not permit al-Marri any communicationwith the outside world, including his attorneys,his wife, and his children. He alleges that he wasdenied basic necessities, interrogated throughmeasures creating extreme sensory deprivation,and threatened with violence. A pending civilaction challenges the “inhuman, degrading,” and“abusive” conditions of his confinement. See Com-plaint at 1, Al-Marri v. Rumsfeld, No. 2:05-cv-02259-HFF-RSC (D.S.C. Aug. 8, 2005).

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On July 8, 2003, counsel for al-Marri petitionedon his behalf (because it was undisputed that hewas unavailable to petition) for a writ of habeascorpus in the Central District of Illinois. The dis-trict court dismissed the petition for lack ofvenue, Al-Marri v. Bush, 274 F. Supp. 2d 1003(C.D. Ill. 2003); the Seventh Circuit affirmed, Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004);and the Supreme Court denied certiorari, Al-Marri v. Rumsfeld, 543 U.S. 809 (2004). On July8, 2004, al-Marri’s counsel filed the presenthabeas petition on al-Marri’s behalf in the Dis-trict of South Carolina. On September 9, 2004,the Government answered al-Marri’s petition,citing the Declaration of Jeffrey N. Rapp, Direc-tor of the Joint Intelligence Task Force for Com-bating Terrorism, as support for the President’sorder to detain al-Marri as an enemy combatant.

The Rapp Declaration asserts that al-Marri: (1)is “closely associated with al Qaeda, an interna-tional terrorist organization with which theUnited States is at war”; (2) trained at an alQaeda terrorist training camp in Afghanistansometime between 1996 and 1998; (3) in the sum-mer of 2001, was introduced to Osama Bin Ladenby Khalid Shaykh Muhammed; (4) at that time,volunteered for a “martyr mission” on behalf of alQaeda; (5) was ordered to enter the UnitedStates sometime before September 11, 2001, toserve as a “sleeper agent” to facilitate terroristactivities and explore disrupting this country’sfinancial system through computer hacking; (6)in the summer of 2001, met with terroristfinancier Mustafa Ahmed al-Hawsawi, who gaveal-Marri money, including funds to buy a laptop;

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(7) gathered technical information about poi-sonous chemicals on his laptop; (8) undertookefforts to obtain false identification, credit cards,and banking information, including stolen creditcard numbers; (9) communicated with known ter-rorists, including Khalid Shaykh Muhammed andal-Hawsawi, by phone and e-mail; and (10) savedinformation about jihad, the September 11thattacks, and Bin Laden on his laptop computer.

The Rapp Declaration does not assert that al-Marri: (1) is a citizen, or affiliate of the armedforces, of any nation at war with the UnitedStates; (2) was seized on, near, or having escapedfrom a battlefield on which the armed forces ofthe United States or its allies were engaged incombat; (3) was ever in Afghanistan during thearmed conflict between the United States and theTaliban there; or (4) directly participated in anyhostilities against United States or allied armedforces.

On October 14, 2004, the Government permit-ted al-Marri access to his counsel for the firsttime since his initial confinement as an enemycombatant sixteen months before. (According toal-Marri’s counsel, as of the time of the en bancfilings, the Government still has not permittedal-Marri to speak to his wife or any of his fivechildren.) Al-Marri then submitted a reply to theGovernment’s evidence, contending that he is notan enemy combatant; he then moved for sum-mary judgment. The district court denied thesummary judgment motion and referred the caseto a magistrate judge for consideration of theappropriate process to be afforded al-Marri inlight of Hamdi, 542 U.S. 507. The magistrate

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judge ruled that the Rapp Declaration providedal-Marri with sufficient notice of the basis of hisdetention as an enemy combatant and directedal-Marri to file rebuttal evidence.

In response to the magistrate’s ruling, al-Marriagain denied the Government’s allegations butfiled no rebuttal evidence, contending that theGovernment had an initial burden to produce evi-dence that he was an enemy combatant and thatthe Rapp Declaration did not suffice. The mag-istrate judge recommended dismissal of al-Marri’s habeas petition because al-Marri hadfailed to rebut the allegations in the Rapp Dec-laration. In August 2006, the district courtadopted the magistrate judge’s report and rec-ommendation and dismissed al-Marri’s habeaspetition. A few days later, al-Marri noted thisappeal.3

After oral argument, a panel of this courtreversed the judgment of the district court andremanded the case for further proceedings. SeeAl-Marri, 487 F.3d 160. On the Government’smotion for rehearing, the court voted to vacatethe panel opinion and hear the case en banc. Forthe reasons set forth within, we would once againhold that al-Marri must be afforded habeas reliefand so would reverse the judgment of the districtcourt and remand the case for further proceed-ings consistent with that holding.

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3 Numerous amici have submitted briefs to us, both onthe jurisdictional and merits questions. Many of these briefshave been helpful, and we are especially grateful for thecare exhibited in focusing on different issues, thus avoidingredundancy.

II.

Al-Marri premises his habeas claim on theFifth Amendment’s guarantee that no person liv-ing in this country can be deprived of libertywithout due process of law. He maintains thateven if he has committed the acts the Govern-ment alleges, he is not a combatant but a civilianprotected by our Constitution, and thus is notsubject to military detention. Al-Marri acknowl-edges that the Government can deport him orcharge him with a crime and, if he is convicted ina civilian court, imprison him. But he insists thatneither the Constitution nor any law permits theGovernment, on the basis of the evidence it hasproffered to date—even assuming all of that evi-dence is true—to treat him as an enemy com-batant and subject him to indefinite militarydetention, without criminal charge or process.

The Government contends that the districtcourt properly denied habeas relief to al-Marri,because the Constitution allows detention ofenemy combatants by the military without crim-inal process, and, according to the Government,it has proffered evidence that al-Marri is anenemy combatant. The Government argues thatthe AUMF, as construed by precedent and con-sidered in conjunction with the “legal backgroundagainst which [it] was enacted,” empowers thePresident on the basis of that proffered evidenceto order al-Marri’s indefinite military detentionas an enemy combatant. Alternatively, the Gov-ernment contends that even if the AUMF doesnot authorize the President to order al-Marri’s

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military detention, the President has “inherentconstitutional power” to do so.

A.

Each party grounds its case on well-establishedlegal doctrine. Moreover, important principlesguiding our analysis seem undisputed. Beforeaddressing the conflicting contentions of the par-ties, we note these fundamental principles, whichwe take to be common ground.

The Constitution guarantees that no “person”shall “be deprived of life, liberty, or property,without due process of law.” U.S. Const., amend.V; see also id. amend. XIV, § 1. The text of theFifth Amendment affords this guarantee to “per-son[s],” not merely citizens, and so the constitu-tional right to freedom from deprivation ofliberty without due process of law extends to alllawfully admitted aliens living within the UnitedStates. See Wong Wing v. United States, 163 U.S.228, 238 (1896); see also United States v. Ver-dugo-Urquidez, 494 U.S. 259, 271 (1990).

To be sure, as al-Marri’s counsel conceded atoral argument before the en banc court, our Con-stitution has no “force in foreign territory unlessin respect of our citizens.” United States v. Cur-tiss-Wright Export Corp., 299 U.S. 304, 318(1936). But, as Chief Justice Rehnquistexplained, a long line of Supreme Court casesestablishes that aliens receive certain protec-tions—including those rights guaranteed by theDue Process Clause—“when they have comewithin the territory of the United States anddeveloped substantial connections with this coun-

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try.” Verdugo-Urquidez, 494 U. S. at 271; see alsoBoumediene, 553 U.S. at ___, slip op. at 12 (not-ing that “the Constitution’s . . . substantive guar-antees of the Fifth and Fourteenth Amendments. . . protect[ ] persons,” including “foreign nation-als”); Sanchez-Llamas v. Oregon, 126 S. Ct. 2669,2681-82 (2006) (observing that “[a] foreignnational . . . like anyone else in our countryenjoys under our system the protections of theDue Process Clause”); Kwong Hai Chew v. Cold-ing, 344 U.S. 590, 596 n.5 (1953) (noting that“once an alien lawfully enters and resides in thiscountry he becomes invested with . . . rights . . .protected by . . . the Fifth Amendment[ ] and bythe due process clause of the Fourteenth Amend-ment” (internal quotation marks omitted)); WongWing, 163 U.S. at 238 (holding that “all personswithin the territory of the United States are enti-tled to the protection guaranteed by” the DueProcess Clause of the Fifth Amendment); Yick Wov. Hopkins, 118 U.S. 356, 369 (1886) (explainingthat the Due Process Clause of the FourteenthAmendment protects “all persons within the ter-ritorial jurisdiction” of the United States). Thus,the Due Process Clause protects not only citizensbut also aliens, like al-Marri, lawfully admittedto this country who have established substantialconnections here—in al-Marri’s case by residingin Illinois for several months with his family andattending university there.4

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4 Hence, the case at hand involves—and we limit ouranalysis to—persons seized and detained within the UnitedStates who have constitutional rights under the Due ProcessClause.

“Freedom from imprisonment—from govern-ment custody, detention, or other forms of phys-ical restraint—lies at the heart of the liberty that[the Due Process] Clause protects.” Zadvydas v.Davis, 533 U.S. 678, 690 (2001); see also Fouchav. Louisiana, 504 U.S. 71, 80 (1992). This conceptdates back to the Magna Carta, which guaran-teed that “government would take neither life,liberty, nor property without a trial in accordwith the law of the land.” Duncan v. Louisiana,391 U.S. 145, 169 (1968) (Black, J., concurring).The “law of the land” at its core provides that “noman’s life, liberty or property be forfeited as apunishment until there has been a charge fairlymade and fairly tried in a public tribunal.” In reOliver, 333 U.S. 257, 278 (1948). Thus, theSupreme Court has recognized that, because ofthe Due Process Clause, it “may freely be con-ceded” that as a “‘general rule’ . . . the govern-ment may not detain a person prior to ajudgment of guilt in a criminal trial.” UnitedStates v. Salerno, 481 U.S. 739, 749 (1987).

The Court, however, has permitted a limitednumber of specific exceptions to this general rule.Although some process is always required inorder to detain an individual, in special situa-tions detention based on process less than thatattendant to a criminal conviction does not vio-late the Fifth Amendment. See, e.g., Kansas v.Hendricks, 521 U.S. 346 (1997) (civil commitmentof mentally ill sex offenders); Salerno, 481 U.S.739 (pretrial detention of dangerous adults);Schall v. Martin, 467 U.S. 253 (1984) (pretrialdetention of dangerous juveniles); Addington v.Texas, 441 U.S. 418 (1979) (civil commitment of

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mentally ill); Humphrey v. Smith, 336 U.S. 695(1949) (courts martial of American soldiers).Among these recognized exceptions is the one onwhich the Government grounds its principalargument in this case: Congress may constitu-tionally authorize the President to order the mil-itary detention, without criminal process, ofpersons who “qualify as ‘enemy combatants,’ ”that is, fit within that particular “legal category.”Hamdi, 542 U.S. at 516, 522 n.1.5

The act of depriving a person of the liberty pro-tected by our Constitution is a momentous one;thus, recognized exceptions to criminal processare narrow in scope and generally permit onlylimited periods of detention. See, e.g., Jackson v.

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5 Case law also establishes that during times of warCongress may constitutionally authorize the President todetain “enemy aliens,” also known as “alien enemies,”defined as “subject[s] of a foreign state at war with theUnited States.” Johnson v. Eisentrager, 339 U.S. 763, 769n.2 (1950) (internal quotation marks omitted); see Ludeckev. Watkins, 335 U.S. 160 (1948). And the Government candetain potentially dangerous resident aliens for a limitedtime pending deportation. See, e.g., Carlson v. Landon, 342U.S. 524, 537-42 (1952); cf. Zadvydas, 533 U.S. 678 (con-struing a statute’s authorization of post-removal-perioddetention not to permit indefinite detention of aliens inorder to avoid serious doubt as to its constitutionality). But,as the Government recognizes, the Alien Enemy Act, thestatute the Court considered in Eisentrager and Ludecke,does not apply to al-Marri’s case. In fact, al-Marri is not an“enemy alien” but a citizen of Qatar, with which the UnitedStates has friendly diplomatic relations. The Governmentalso does not seek to deport al-Marri. Therefore, neither ofthese exceptions is offered by the Government as a basis forholding al-Marri without criminal charge, and neither isapplicable here.

Indiana, 406 U.S. 715, 738 (1972). Moreover,regardless of possible “threat[s] to communitysafety” or “barriers to criminal prosecution,” postat 146 (Wilkinson, J., concurring in part and dis-senting in part), the Government can neverinvoke an exception, and so detain a person with-out criminal process, unless the individual fitswithin the narrow legal category of persons towhom the exception applies.6 For example, theSupreme Court has held that the Constitutiondoes not permit the Government to detain apredatory sex criminal through a civil commit-ment process simply by establishing that he isdangerous, i.e., a “threat to community safety.”

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6 Furthermore, the Supreme Court has never permit-ted an exception to criminal process merely on the basis ofjudicial fears as to “threat[s] to community safety” or “bar-riers to criminal prosecution.” See post at 146 (Wilkinson, J.,concurring in part and dissenting in part). Rather, the Courthas permitted such exceptions only when a legislative bodyhas explicitly authorized the exception. See, e.g., Salerno,481 U.S. 739 (Bail Reform Act of 1984); Schall, 467 U.S. 253(New York Family Court Act); Addington, 441 U.S. 418(Texas statute governing involuntary commitment on men-tal health grounds); Hendricks, 521 U.S. 346 (Kansas Sex-ually Violent Predator Act). Accordingly, it is hardlysurprising that, despite the broad language of the AUMF,the Supreme Court in Hamdi found only that the statuteprovided congressional authorization for the military deten-tion of an enemy combatant as that term is defined by tra-ditional law-of-war principles. And, even more recently, inHamdan v. Rumsfeld, 126 S. Ct. 2749, 2775 (2006), theCourt expressly refused to read the broad language of theAUMF to “expand the President’s authority to convene mil-itary commissions,” instead finding that this authority waslimited by traditional law-of-war principles “[a]bsent a morespecific congressional authorization.”

The civil commitment process may be substitutedfor criminal process only if the Governmentmeets its statutory burden, that is, the Govern-ment demonstrates “proof of dangerousness” and“proof of some additional factor, such as a ‘men-tal illness’ or ‘mental abnormality.’ ” Hendricks,521 U.S. at 358.

In Hamdi, the plurality explained that pre-cisely the same principles apply when the Gov-ernment seeks to detain a person as an enemycombatant. Under the habeas procedure pre-scribed in Hamdi, if the Government asserts anexception to the usual criminal process by detain-ing as an enemy combatant an individual withconstitutional rights, it must proffer evidence todemonstrate that the individual “qualif[ies]” forthis exceptional treatment. 542 U.S. at 516, 534.Only after the Government has “put[ ] forth cred-ible evidence that” an individual “meets theenemy-combatant criteria” does “the onus” shiftto the individual to demonstrate “that he fallsoutside the [enemy combatant] criteria.” Id. at534. For, in this country, the military cannotseize and indefinitely detain an individual—par-ticularly when the sole process leading to hisdetention is a determination by the Executivethat the detention is necessary7—unless the Gov-

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7 Hamdi recognizes that the sole process that the Gov-ernment need provide in order to initially detain an enemycombatant is a presidential determination that the detentionis necessary. 542 U.S. at 518. Of course, Hamdi also reaf-firms that the writ of habeas corpus provides a remedy tochallenge collaterally the legality of the ongoing detention.Id. at 525-26. Although the habeas remedy follows from theSuspension Clause, the Hamdi plurality borrowed the due

ernment demonstrates that he “qualif[ies]” forthis extraordinary treatment because he fitswithin the “legal category of enemy combatant.”Id. at 516, 522 n.1.

Moreover, when the Government contends, asit does here, that an individual with constitu-tional rights is an enemy combatant and thatsuch an individual’s exclusive opportunity toescape indefinite military detention rests onovercoming presumptively accurate hearsay,courts must take particular care that the Gov-ernment’s allegations demonstrate that thedetained individual is not a civilian, but instead,as the Supreme Court has explained, “meets theenemy-combatant criteria.” Id. at 534. For onlysuch care accords with the “deeply rooted andancient opposition in this country to the exten-sion of military control over civilians.” Reid v.Covert, 354 U.S. 1, 33 (1957) (plurality).

These principles thus form the legal frameworkfor consideration of the issues before us. Bothparties recognize that it does not violate the DueProcess Clause for the President to order the mil-itary to seize and detain individuals who “qual-ify” as enemy combatants for the duration of awar. They disagree, however, as to whether theevidence the Government has proffered, evenassuming its accuracy, establishes that al-Marrifits within the “legal category of enemy combat-ant.” Hamdi, 542 U.S. at 522 n.1. The Govern-ment principally contends that its evidenceestablishes this, and therefore the AUMF grants

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process balancing approach from Mathews v. Eldridge, 424U.S. 319 (1976), to design the specific requirements of thishabeas remedy. Hamdi, 542 U.S. at 525-35.

the President statutory authority to detain al-Marri as an enemy combatant. Alternatively, theGovernment asserts that the President hasinherent constitutional authority to order al-Marri’s indefinite military detention. Al-Marrimaintains that the proffered evidence does notestablish that he fits within the “legal category ofenemy combatant,” id., and so the AUMF doesnot authorize the President to order the militaryto seize and detain him, and that the Presidenthas no inherent constitutional authority to orderthis detention. We now turn to these contentions.

B.

The Government’s primary argument is thatthe AUMF, as construed by precedent and con-sidered against “the legal background againstwhich [it] was enacted,” i.e., constitutional andlaw-of-war principles, empowers the President toorder the military to seize and detain al-Marri asan enemy combatant. The AUMF provides:

[T]he President is authorized to use allnecessary and appropriate force againstthose nations, organizations, or personshe determines planned, authorized, com-mitted, or aided the terrorist attacks thatoccurred on September 11, 2001, or har-bored such organizations or persons, inorder to prevent any future acts of inter-national terrorism against the UnitedStates by such nations, organizations orpersons.

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§ 2(a), 115 Stat. 224.8 In considering the Gov-ernment’s AUMF argument, we first note thelimits the Government places on its interpreta-tion of this statute and then consider the Gov-ernment’s central contention.

1.

Tellingly, the Deputy Solicitor General con-ceded at oral argument before the en banc courtthat the AUMF only authorizes detention ofenemy combatants. Thus, the Government doesnot argue that the broad language of the AUMFauthorizes the President to subject to indefinitemilitary detention anyone he believes to haveaided any “nation[ ], organization[ ], or person[ ]”related to the September 11th attacks. See § 2(a),115 Stat. 224. Such an interpretation would lead

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8 Although the Government asserts in a footnote thatthe Military Commissions Act (MCA) of 2006, Pub. L. No.109-366, 120 Stat. 2600, “buttresses” the President’s “inher-ent authority” to detain al-Marri, it does not assert that theMCA provides statutory authority to detain enemy comba-tants. Plainly, the MCA could not provide the Governmentwith authority to subject al-Marri to indefinite militarydetention, since Congress did not enact the MCA until Octo-ber 16, 2006, more than three years after the Presidentordered al-Marri’s indefinite military detention. Moreover,the MCA addresses only whether a detained individual is anunlawful enemy combatant subject to military trial, pur-suant to specific statutory procedures, not whether, in thefirst instance, an individual with constitutional rights seizedin this country qualifies as an enemy combatant subject toindefinite military detention. Accord post at 183-184 n.9(Wilkinson, J., concurring in part and dissenting in part).

to absurd results that Congress could not haveintended.

Under that reading of the AUMF, the Presidentwould be able to subject to indefinite militarydetention anyone, including an American citizen,whom the President believed was associated withany organization that the President believed insome way “planned, authorized, committed, oraided” the September 11th attacks, so long as thePresident believed this to be “necessary andappropriate” to prevent future acts of terrorism.

Under such an interpretation of the AUMF, ifsome money from a nonprofit charity that feedsAfghan orphans made its way to al Qaeda, thePresident could subject to indefinite militarydetention any donor to that charity. Similarly,this interpretation of the AUMF would allow thePresident to detain indefinitely any employee orshareholder of an American corporation thatbuilt equipment used by the September 11th ter-rorists; or allow the President to order the mili-tary seizure and detention of an American-citizenphysician who treated a member of al Qaeda.

Moreover, at oral argument, the Deputy Solic-itor General also explicitly and properly acknowl-edged that exercise of power under the AUMFmust be consistent with the Constitution. But toread the AUMF to provide the President with theunlimited power outlined above would presentserious constitutional questions. For theSupreme Court has long recognized that the DueProcess Clause “cannot be . . . construed as toleave Congress free to make any process ‘due pro-cess of law,’ by its mere will.” See Murray’s

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Lessee v. Hoboken Land & Improvement Co., 59U.S. (18 How.) 272, 276-77 (1855).

2.

The Government’s arguments do not require usto deal with the absurd results, nor reach theconstitutional concerns, raised by an interpre-tation of the AUMF that would authorize thePresident to detain indefinitely—without crimi-nal charge or process—anyone he believes tohave aided any “nation[ ], organization[ ], or per-son[ ]” related to the September 11th terrorists.See § 2(a), 115 Stat. 224. For the Governmentwisely limits its argument.9 It relies only on the

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9 Chief Judge Williams and Judge Wilkinson each takea different approach; we address each of these approacheswithin. We note here, however, a basic inconsistency in bothdissenters’ reasoning. Both first heavily rely on the broadlanguage of the AUMF as authorizing al-Marri’s detention,but then explicitly recognize the difficulties with inter-preting the statute to give effect to this broad language.Judge Williams dismisses the definition of enemy combatantunder “the traditional ‘law of war’” because, she contends,the AUMF “controls . . . for purposes of domestic law,” butshe then acknowledges that giving full force to that statute“might produce absurd results.” Post at 117 & n.4. JudgeWilkinson goes even further. He initially points to thebreadth of the AUMF language and chides us for refusing togive it full effect, post at 133-143, but ultimately he himselfalso refuses to give this language full effect. Rather, JudgeWilkinson properly recognizes the “constitutional limits onwhat Congress can authorize the executive to do,” and giventhose limits, he contends that to “qualify constitutionally”for treatment as an enemy combatant under the AUMF, anindividual must fit within his three newly created criteria.Post at 156, 159-60. With these new criteria firmly in place,

scope of the AUMF as construed by precedentand considered in light of “the legal backgroundagainst which [it] was enacted.” Specifically, theGovernment contends that “[t]he SupremeCourt’s and this Court’s prior construction of theAUMF govern this case and compel the conclu-sion that the President is authorized to detain al-Marri as an enemy combatant.”

i.

The precedent interpreting the AUMF on whichthe Government relies for this argument consistsof two cases: the Supreme Court’s opinion inHamdi, 542 U.S. 507, and our opinion in Padillav. Hanft, 423 F.3d 386 (4th Cir. 2005).10 The“legal background” for the AUMF, which the Gov-ernment cites, consists of two cases from earlierconflicts, Ex Parte Quirin, 317 U.S. 1 (1942)(World War II), and Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (U.S. Civil War), as well asconstitutional and law-of-war principles.

With respect to the latter, we note that Amer-ican courts have often been reluctant to followinternational law in resolving domestic disputes.In the present context, however, they, like the

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Judge Wilkinson maintains that our suggestion that theactual language of the AUMF would produce unconstitu-tional or absurd results, for example rendering donors to anonprofit charity enemy combatants, is “beyond hyperbole.”Post at 177.

10 Of course, Padilla does not bind this court, but weconsider it because the Government has heavily relied uponit, and it is in no way inconsistent with our conclusion thatal-Marri is not an enemy combatant.

Government here, have relied on the law of war—treaty obligations including the Hague andGeneva Conventions and customary principlesdeveloped alongside them. The law of war pro-vides clear rules for determining an individual’sstatus during an international armed conflict,distinguishing between “combatants” (membersof a nation’s military, militia, or other armedforces, and those who fight alongside them) and“civilians” (all other persons).11 See, e.g., GenevaConvention Relative to the Treatment of Prison-ers 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 ofCivilian Persons in Time of War (Fourth GenevaConvention) art. 4, Aug. 12, 1949, 6 U.S.T. 3516,

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11 Thus, “civilian” is a term of art in the law of war, notsignifying an innocent person, but rather someone in a cer-tain legal category who is not subject to military seizure ordetention. So, too, a “combatant” is by no means always awrongdoer, but rather a member of a different “legal cate-gory” who is subject to military seizure and detention.Hamdi, 542 U.S. at 522 n.1. For example, our brave soldiersfighting in Germany during World War II were “combatants”under the law of war, and viewed from Germany’s perspec-tive they were “enemy combatants.” While civilians are sub-ject to trial and punishment in civilian courts for all crimescommitted during wartime in the country in which they arecaptured and held, combatant status protects an individualfrom trial and punishment by the capturing nation, unlessthe combatant has violated the law of war. See id. at 518;Quirin, 317 U.S. at 28-31. Nations in international conflictscan summarily remove the adversary’s “combatants,” i.e.,the “enemy combatants,” from the battlefield and detainthem for the duration of such conflicts, but no such provisionis made for “civilians.” Hamdi, 542 U.S. at 518; Quirin, 317U.S. at 28-31.

75 U.N.T.S. 287. American courts have repeat-edly looked to these careful distinctions made inthe law of war in identifying which individualsfit within the “legal category” of “enemy com-batant” under our Constitution. See, e.g., Hamdi,542 U.S. at 518; Quirin, 317 U.S. at 30-31 & n.7;Milligan, 71 U.S. at 121-22; Padilla, 423 F.3d at391.

In the case at hand, the Government assertsthat the construction given the AUMF in Hamdiand Padilla—based on these law-of-war princi-ples—“compel[s] the conclusion that the Presi-dent is authorized [by the AUMF] to detainal-Marri as an enemy combatant.” In otherwords, the Government contends that al-Marrifits within the “legal category” of persons thatthe Supreme Court in Hamdi, and a panel of thiscourt in Padilla, held the AUMF authorized thePresident to detain as enemy combatants. Thus,we examine those cases to determine whether theinterpretation of the AUMF they adopt doesindeed empower the President to treat al-Marrias an enemy combatant.

In Hamdi, the Supreme Court looked to prece-dent and the law of war to determine whetherthe AUMF authorized the President to detain asan enemy combatant an American citizen cap-tured while engaging in battle against Americanand allied armed forces in Afghanistan as part ofthe Taliban. See 542 U.S. at 518-22. In support ofthat detention, the Government offered evidencethat Yaser Esam Hamdi “affiliated with a Tal-iban military unit and received weapons train-ing,” “took up arms with the Taliban,” “engagedin armed conflict against the United States” in

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Afghanistan, and, when captured on the battle-field, “surrender[ed] his Kalishnikov assaultrifle.” Id. at 510, 513, 516 (internal quotationmarks omitted). Hamdi’s detention was upheldbecause, in fighting against the United States onthe battlefield in Afghanistan with the Taliban,the de facto government of Afghanistan at thetime,12 Hamdi bore arms with the army of anenemy nation and so, under the law of war, wasan enemy combatant. Id. at 518-20.

The Hamdi Court expressly recognized that theAUMF did not explicitly provide for detention.Id. at 519; see also id. at 547 (Souter, J., con-curring in part, dissenting in part, and concur-ring in the judgment). It concluded, however, “inlight of” the law-of-war principles applicable toHamdi’s battlefield capture, that this was “of nomoment” in the case before it. Id. at 519 (plu-rality). As the plurality explained, “[b]ecausedetention to prevent a combatant’s return to thebattlefield is a fundamental incident of wagingwar, in permitting the use of ‘necessary andappropriate force,’ Congress has clearly andunmistakably authorized detention in the narrowcircumstances considered here.” Id. (emphasis

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12 See White House Fact Sheet: Status of Detainees atGuantanamo (Feb. 7, 2002), http://www.pegc.us/archive/White_House/20020207_ WH_POW_fact_sheet.txt; see alsoProtocol Additional to the Geneva Conventions of 12 August1949, and Relating to the Protection of Victims of Interna-tional Armed Conflicts (Protocol I), June 8, 1977, arts. 43-44, 1125 U.N.T.S. 3 (defining combatants in conflictsbetween nations as members, other than chaplains and med-ical personnel, of “all organized armed forces, groups andunits which are under a command responsible to that[nation] for the conduct of its subordinates”).

added). Thus, the Hamdi Court reached the fol-lowing limited holding: “the AUMF is explicitcongressional authorization for the detention ofindividuals in the narrow category we describe,”that is, individuals who were “part of or sup-porting forces hostile to the United States orcoalition partners in Afghanistan and whoengaged in an armed conflict against the UnitedStates there.” Id. at 516-17 (internal quotationmarks omitted and emphasis added); accord id.at 587 (Thomas, J., dissenting). The pluralityexplained that its opinion “only finds legislativeauthority to detain under the AUMF once it issufficiently clear that the individual is, in fact,an enemy combatant.” Id. at 523 (emphasisadded). The plurality also cautioned that “[i]f thepractical circumstances of a given conflict” dif-fered from those of the traditional conflicts thatinformed the law of war, the understanding thatthe AUMF authorizes detention “may unravel.”Id. at 521.

In Padilla, a panel of this court similarly heldthat the AUMF authorized the President todetain as an enemy combatant an American cit-izen who “was armed and present in a combatzone” in Afghanistan as part of Taliban forcesduring the conflict there with the United States.423 F.3d at 390-91 (internal quotation marksomitted). The Government had not been able tocapture Jose Padilla until he came to the borderof the United States, but, because the Govern-ment presented evidence that Padilla “took uparms against United States forces in[Afghanistan] in the same way and to the sameextent as did Hamdi,” we concluded that he

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“unquestionably qualifies as an ‘enemy combat-ant’ as that term was defined for the purposes ofthe controlling opinion in Hamdi.” Id. at 391.13

We too invoked the law of war, upholdingPadilla’s detention because we understood “theplurality’s reasoning in Hamdi to be that theAUMF authorizes the President to detain allthose who qualify as ‘enemy combatants’ withinthe meaning of the law of war.” Id. at 392. Wealso noted that Padilla’s detention, like Hamdi’s,was permissible “‘to prevent a combatant’s returnto the battlefield . . . a fundamental incident ofwaging war.’ ” Id. at 391 (emphasis added) (quot-ing Hamdi, 542 U.S. at 519).

Supreme Court precedent offered substantialsupport for the narrow rulings in Hamdi andPadilla. In Quirin, which the Hamdi pluralitycharacterized as the “most apposite precedent,”542 U.S. at 523, the Supreme Court upheld thetreatment, as enemy combatants, of mendirected, outfitted, and paid by the German mil-

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13 Although our opinion discussed Padilla’s associationwith al Qaeda, we held that Padilla was an enemy combat-ant because of his association with Taliban forces, i.e.,Afghanistan government forces, on the battlefield inAfghanistan during the time of the conflict between theUnited States and Afghanistan. Padilla, 423 F.3d at 391. Al-Marri urges us to ignore Padilla, particularly in light of itssubsequent history. See Padilla v. Hanft, 432 F.3d 582, 583(4th Cir. 2005) (noting that the Government’s transfer ofPadilla to civilian custody for criminal trial after arguingbefore this court that he was an enemy combatant created“an appearance that the government may be attempting toavoid consideration of our decision by the Supreme Court”).That history is troubling, but we see no need to avoidPadilla since its narrow holding does not in any way conflictwith our conclusion here.

itary to bring explosives into the United States todestroy American war industries during WorldWar II. The Quirin Court concluded that even apetitioner claiming American citizenship hadbeen properly classified as an enemy combatantbecause “[c]itizens who associate themselves withthe military arm of the enemy government, andwith its aid, guidance and direction enter thiscountry bent on hostile acts, are enemy bel-ligerents [combatants] within the meaning of . . .the law of war.” 317 U.S. at 37-38. The Courtcited the Hague Convention “which defines thepersons to whom belligerent [i.e., combatant]rights and duties attach,” id. at 30-31 n.7, in sup-port of its conclusion that the Quirin petitionersqualified as enemy combatants. Given the “dec-laration of war between the United States andthe German Reich,” id. at 21, and that all theQuirin petitioners, including one who claimedAmerican citizenship, were directed and paid bythe “military arm” of the German Reich, theCourt held that the law of war classified them asenemy belligerents (or combatants) and so theConstitution permitted subjecting them to mili-tary jurisdiction. Id. at 48.

Hamdi and Padilla ground their holdings onthis central teaching from Quirin, i.e., enemycombatant status rests on an individual’s affili-ation during wartime with the “military arm ofthe enemy government.” Quirin, 317 U.S. at 37-38; Hamdi, 542 U.S. at 519; Padilla, 423 F.3d at391. In Quirin, that enemy government was theGerman Reich; in Hamdi and Padilla, it was theTaliban government of Afghanistan.

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Hamdi and Padilla also rely on this principlefrom Quirin to distinguish (but not disavow) Mil-ligan. In Milligan, the Court rejected the Gov-ernment’s impassioned contention that apresidential order and the “laws and usages ofwar,” 71 U.S. at 121-22, justified exercising mil-itary jurisdiction over Lamdin Milligan, an Indi-ana resident, during the Civil War. TheGovernment alleged that Milligan had commu-nicated with the enemy, had conspired to “seizemunitions of war,” and had “join[ed] and aid[ed]. . . a secret” enemy organization “for the purposeof overthrowing the Government and duly con-stituted authorities of the United States.” Id. at6. The Court recognized that Milligan had com-mitted “an enormous crime” during “a period ofwar” and at a place “within . . . the theatre of mil-itary operations, and which had been and wasconstantly threatened to be invaded by theenemy.” Id. at 7, 130. But it found no support inthe “laws and usages of war” for subjecting Mil-ligan to military jurisdiction as a combatant, foralthough he was a “dangerous enem[y]” of thenation, he was a civilian and had to be treated assuch. Id. at 121-22, 130.

Quirin, Hamdi, and Padilla all emphasize thatMilligan ’s teaching—that our Constitution doesnot permit the Government to subject civilianswithin the United States to military jurisdic-tion—remains good law. The Quirin Courtexplained that while the petitioners before itwere affiliated with the armed forces of an enemynation and so were enemy belligerents, Milliganwas a “non-belligerent” and so “not subject to thelaw of war.” 317 U.S. at 45. The Hamdi plurality

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similarly took care to note that Milligan “turnedin large part on the fact that Milligan was not aprisoner of war” (i.e., combatant) and suggestedthat “[h]ad Milligan been captured while he wasassisting Confederate soldiers by carrying a rifleagainst Union troops on a Confederate battle-field, the holding of the Court might well havebeen different.” 542 U.S. at 522. And in Padilla,we reaffirmed that “Milligan does not extend toenemy combatants” and so “is inapposite herebecause Padilla, unlike Milligan, associated with,and has taken up arms against the forces of theUnited States on behalf of, an enemy of theUnited States.” 423 F.3d at 396-97. Thus,although Hamdi, Quirin, and Padilla distinguishMilligan, they recognize that its core holdingremains the law of the land. That is, civilianswithin this country (even “dangerous enemies”like Milligan who perpetrate “enormous crime[s]”on behalf of “secret” enemy organizations bent on“overthrowing the Government” of this country)may not be subjected to military control anddeprived of constitutional rights. Milligan, 71U.S. at 6, 130.14

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14 Because of this important principle, the SupremeCourt has hailed Milligan as “one of the great landmarks inth[e] Court’s history.” Reid, 354 U.S. at 30. Although in itsappellate brief the Government largely avoids Milligan, itimplicitly acknowledges this point and so attempts to dis-tinguish Milligan from the case at hand on the ground thatMilligan was a citizen and al-Marri an alien. In some cir-cumstances, the Constitution does afford aliens less pro-tection than citizens. See, e.g., Hamdi, 542 U.S. at 558-59(Scalia, J., dissenting) (suggesting that during war the con-stitutional rights of an “enemy alien,” whom the Supreme

In sum, the holdings of Hamdi and Padillashare two characteristics: (1) they look to law-of-war principles to determine who fits within the“legal category” of enemy combatant; and (2) fol-lowing the law of war, they rest enemy combat-ant status on affiliation with the military arm ofan enemy nation.

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Court has defined as a “subject of a foreign state at war withthe United States,” Eisentrager, 339 U.S. at 769 n.2 (inter-nal quotation marks omitted), differ from those of a trea-sonous citizen); Verdugo-Urquidez, 494 U.S. at 274-75(holding that the Fourth Amendment does not apply tosearches by United States agents of property owned byaliens in foreign countries). But the distinction between cit-izens and aliens provides no basis for depriving an alien likeal-Marri, lawfully resident within the United States and notthe subject of an enemy nation, of those rights guaranteedby the Due Process Clause. Rather, the Supreme Court hasrepeatedly held that aliens situated like al-Marri have anunquestioned right to the due process of law. See Sanchez-Llamas, 126 S. Ct. at 2681-82; Zadvydas, 533 U.S. at 693;Wong Wing, 163 U.S. at 238; see also Verdugo-Urquidez, 494U.S. at 271; 494 U.S. at 278 (Kennedy, J., concurring)(observing that “[a]ll would agree . . . that the dictates of theDue Process Clause of the Fifth Amendment protect” analien lawfully within the United States). The Governmentdoes not dispute or distinguish these cases in its appellatebrief; it simply ignores them. At oral argument before the enbanc court, however, the Government finally acknowledgedthat an alien legally resident in the United States, like al-Marri, has the same Fifth Amendment due process rights asan American citizen. For this reason, the Government had toconcede that if al-Marri can be detained as an enemy com-batant, then the Government can also detain any Americancitizen on the same showing and through the same process.

ii.

In view of the holdings in Hamdi and Padilla,we find it remarkable that the Government con-tends that they “compel the conclusion” that thePresident may detain al-Marri as an enemy com-batant. For unlike Hamdi and Padilla, al-Marriis not alleged to have been part of a Taliban unit,not alleged to have stood alongside the Talibanor the armed forces of any other enemy nation,not alleged to have been on the battlefield duringthe war in Afghanistan, not alleged to have evenbeen in Afghanistan during the armed conflictthere, and not alleged to have engaged in combatwith United States forces anywhere in the world.See Rapp Declaration (alleging none of thesefacts, but instead that “[a]l-Marri engaged inconduct in preparation for acts of internationalterrorism intended to cause injury or adverseeffects on the United States”). Indeed, unlikeHamdi and Padilla, al-Marri had been impris-oned in the United States by civil authorities oncriminal charges for more than a year beforebeing seized by the military and indefinitely con-fined in a Navy brig as an enemy combatant.

In place of the “classic wartime detention” thatthe Government argued justified Hamdi’s deten-tion as an enemy combatant, see Br. of Respon-dents at 20-21, 27, Hamdi, 542 U.S. 507 (No.03-6696), or the “classic battlefield” detention itmaintained justified Padilla’s, see Opening Br.for the Appellant at 16, 20, 29, 51, Padilla, 432F.3d 386 (No. 05-6396), here the Governmentargues that al-Marri’s seizure and indefinitedetention by the military in this country are jus-

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tified “because he engaged in, and continues topose a very real threat of carrying out, . . . acts ofinternational terrorism.” And instead of seekingjudicial deference to decisions of “military offi-cers who are engaged in the serious work of wag-ing battle,” Hamdi, 542 U.S. at 531-32, theGovernment asks us to defer to the “multi-agencyevaluation process” of government bureaucrats inWashington made eighteen months after al-Marriwas taken into custody. Neither the holding inHamdi nor that in Padilla supports the Govern-ment’s contentions here.

In arguing to the contrary, the Governmentconfuses certain secondary arguments itadvanced in Hamdi and Padilla with the actualholdings in those cases. As discussed above, bothHamdi and Padilla upheld the President’sauthority pursuant to the AUMF to detain asenemy combatants individuals (1) who affiliatedwith and fought on behalf of Taliban governmentforces, (2) against the armed forces of the UnitedStates and its allies, (3) on the battlefield inAfghanistan. In both cases, however, the Gov-ernment also contended that the AUMF providedthe President with even broader authority to sub-ject to military detention, as enemy combatants,persons otherwise involved “in the global armedconflict against the al Qaeda terrorist network.”Br. of Respondents at 20-21, Hamdi, 542 U.S.507 (No. 03- 6996); see Opening Br. for the Appel-lant at 17-18, Padilla, 423 F.3d 386 (No. 05-6396).

But neither the Supreme Court in Hamdi, northis court in Padilla, accepted the Government’sinvitation to fashion such a broad construction of

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the AUMF. Instead, the Hamdi plurality empha-sized the narrowness of its holding, 542 U.S. at509, 516-19, and the “limited category” of indi-viduals controlled by that holding, id. at 518. InPadilla, we similarly saw no need to embrace abroader construction of the AUMF than thatadopted by the Supreme Court in Hamdi. Indeed,the Government itself principally argued thatPadilla was an enemy combatant because he, likeHamdi, “engaged in armed conflict” alongside theTaliban “against our forces in Afghanistan.” SeeOpening Br. for the Appellant at 22-23, 27,Padilla, 423 F.3d 386 (No. 05-6396).15

Thus, the Government is mistaken in its rep-resentation that Hamdi and Padilla “recognized”“[t]he President’s authority to detain ‘enemycombatants’ during the current conflict with al

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15 In doing so, the Government acknowledged, OpeningBr. for the Appellant at 29-30, Padilla, 423 F.3d 386 (No. 05-6396), our distinguished colleague Judge Wilkinson’s state-ment that “[t]o compare [Hamdi’s] battlefield capture to thedomestic arrest in Padilla v. Rumsfeld is to compare applesand oranges,” Hamdi v. Rumsfeld, 337 F.3d 335, 344 (4thCir. 2003) (Wilkinson, J., concurring in the denial of rehear-ing en banc), but explained that Judge Wilkinson’s obser-vation came before the Government had proffered anyevidence that Padilla had carried arms alongside the Tal-iban against United States armed forces during the conflictin Afghanistan. In other words, at the time Judge Wilkinsondifferentiated Hamdi from Padilla, the Government’s alle-gations against Padilla mirrored its allegations against al-Marri here—that he had associated with al Qaeda andengaged in conduct in preparation for acts of terrorism. Weagree with Judge Wilkinson’s characterization: to compareHamdi’s battlefield capture to the domestic arrest of al-Marri is indeed “to compare apples and oranges.” Id.

Qaeda.” Hamdi and Padilla evidence no sympa-thy for the view that the AUMF permits indefi-nite military detention beyond the “limitedcategory” of people covered by the “narrow cir-cumstances” of those cases. Hamdi, 542 U.S. at516-19. Therefore the Government’s argument—that Hamdi and Padilla “compels the conclusion”that the AUMF authorizes the President “todetain al-Marri as an enemy combatant”—fails.Accord post at 73 (Traxler, J., concurring in thejudgment).

3.

The Government offers no other legal prece-dent, rationale, or authority justifying its posi-tion that the AUMF empowers the President todetain al-Marri as an enemy combatant; indeed,at oral argument before the en banc court, theGovernment repeatedly emphasized that itargued only that al-Marri may be detained underthe AUMF because he is an enemy combatantunder established law of-war principles expli-cated in Quirin and other precedent. Our dis-senting colleagues go further, however. Theycontend that the definition of enemy combatanthas somehow expanded to permit a person to beso classified because of his criminal conduct onbehalf of a terrorist organization. We havesearched extensively for authority that wouldsupport the dissents’ position; we have foundnone.

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i.

First, the Supreme Court’s most recent ter-rorism cases—Hamdan and Boumediene—provideno support for the dissenters’ position. In Ham-dan, the Court held that because the conflictbetween the United States and al Qaeda inAfghanistan is not “between nations,” it is a“ ‘conflict not of an international character’ ”—and so is governed by Common Article 3 of theGeneva Conventions. See 126 S. Ct. at 2795; seealso id. at 2802 (Kennedy, J., concurring).

Common Article 3 and other Geneva Conven-tion provisions applying to non-international con-flicts (in contrast to those applying tointernational conflicts) simply do not recognizethe “legal category” of enemy combatant. SeeThird Geneva Convention, art. 3, 6 U.S.T. at3318. As the International Committee of the RedCross—the official codifier of the Geneva Con-ventions—explains, “an ‘enemy combatant’ is aperson who, either lawfully or unlawfully,engages in hostilities for the opposing side in aninternational armed conflict”; in contrast, “[i]nnon-international armed conflict combatant sta-tus does not exist.” Int’l Comm. of the Red Cross,Official Statement: The Relevance of IHL in theContext of Terrorism, at 1, 3 (Feb. 21, 2005),http://www.icrc.org/Web/Eng/siteeng0.nsf/htm-lall/terrorism-ihl-210705 (emphasis added).16

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16 Notwithstanding this principle, we recognize thatsome commentators have suggested that “for such time asthey take a direct part in hostilities,” participants in non-international armed conflicts may, as a matter of customaryinternational law, be placed in the formal legal category of

Perhaps for this reason, our dissenting col-leagues and the Government ignore Hamdan ’sholding that the conflict with al Qaeda inAfghanistan is a non-international conflict andignore the fact that, in such conflicts, the legalcategory of enemy combatant does not exist.Indeed, the Government’s sole acknowledgmentof Hamdan is a short footnote in its appellatebrief, in which it asserts that “the Court took itas a given that Hamdan was subject to detentionas an enemy combatant during ongoing hostili-ties.” The weakness of this response is apparent.Not only does it avoid the holding in Hamdanthat the conflict between the United States andal Qaeda is a non-international conflict, but alsoit improperly suggests that the Supreme Court

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enemy combatant. See, e.g., Curtis A. Bradley & Jack L.Goldsmith, Congressional Authorization and the War on Ter-rorism, 118 Harv. L. Rev. 2047, 2115 & n.304 (2005) [here-inafter Bradley & Goldsmith] (internal quotation marksomitted). No precedent from the Supreme Court or this courtendorses this view, and the Government itself has notadvanced such an argument. This may be because even werea court to follow this approach in some cases, it would notassist the Government here. For the Government has prof-fered no evidence that al-Marri has taken a “direct part inhostilities.” Moreover, the United States has elsewhereadopted a formal treaty understanding of the meaning of theterm “direct part in hostilities,” which plainly excludes al-Marri. See Message from the President of the United StatesTransmitting Two Optional Protocols to the Convention onthe Rights of the Child, S. Treaty Doc. No. 106-37, at VII(2000) (distinguishing between “immediate and actual actionon the battlefield” and “indirect participation,” includinggathering and transmitting military information, weapons,and supplies).

approved Hamdan’s detention when the legalityof that detention was not before the Court.

In fact, two years after Hamdan issued, theCourt once again declined to resolve this veryissue—the legality of the detention of those cap-tured and detained in the conflict with al Qaedaoutside the United States. See Boumediene, 553U.S. at ___, slip op. at 2 (expressly noting thatthe Court does “not address whether the Presi-dent has authority to detain these petitioners”and that “questions regarding the legality of thedetention are to be resolved in the first instanceby the District Court”). Furthermore, in Boume-diene, the Court demonstrated no more sympathyfor the Government’s position than it had in anyof the other recent terrorism cases. Rather, theCourt expressly held that persons designated bythe Executive “as enemy combatants” and held byUnited States forces at Guantanamo Bay must beafforded “the fundamental procedural protectionsof habeas corpus” guaranteed by our Constitu-tion, even though they were foreign nationalswho had been seized in foreign lands. Id. at ___,slip op. at 8, 70. The Court explained that “[t]helaws and Constitution are designed to survive,and remain in force, in extraordinary times.” Id.at ___, slip op. at 70.

Moreover, even were the Supreme Court ulti-mately to approve the detention of Boumediene,Hamdan, and those like them, that would notbolster the view that the Government can mili-tarily detain al-Marri as an enemy combatant.Because the legal status of enemy17 combatant

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17 The Supreme Court did not hold in Boumediene orHamdan that there is a non-international armed conflict

does not exist in non-international conflicts, thelaw of war leaves the detention of persons insuch conflicts to the applicable law of the detain-ing country. In al-Marri’s case, the applicablelaw is our Constitution. Under our Constitution,even if the Supreme Court should hold that theGovernment may detain indefinitely Boumedi-ene, Hamdan, and others like them, who werecaptured outside the United States and lack sub-stantial and voluntary connections to this coun-try, that holding would provide no support forapproving al-Marri’s military detention. For notonly was al-Marri seized and detained within theUnited States, he also has substantial connec-tions to the United States and so plainly is pro-tected by the Due Process Clause. See WongWing, 163 U.S. at 238; see also Verdugo-Urquidez, 494 U.S. at 271.

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between the United States and al Qaeda within the UnitedStates. Non-international conflicts “occur[ ] in the territoryof one of the High Contracting Parties,” Hamdan, 126 S. Ct.at 2795 (emphasis added) (quoting Third Geneva Conven-tion, 6 U.S.T. at 3318)—and Hamdan only found there to bea conflict between the United States and al Qaeda inAfghanistan. Of course, al-Marri is not a participant in anyconflict involving the United States in Afghanistan.Although the Government alleges that al-Marri attended anal Qaeda training camp in Afghanistan years before Septem-ber 11th, it has proffered no evidence that al-Marri wasinvolved in the conflict between the United States and alQaeda in Afghanistan—nor could it, for al-Marri has notbeen in Afghanistan at any point during that conflict.

ii.

Other Supreme Court precedent similarlyoffers no support for the position that personslawfully resident in this country entitled to theprotections of our Constitution—even ordinaryAmerican citizens—can lose their civilian statusand become enemy combatants if they haveallegedly engaged in criminal conduct on behalfof, or associated with, an organization seeking toharm the United States. Of course, a person whocommits a crime should be punished, but when acivilian protected by the Due Process Clause com-mits a crime, he is subject to charge, trial, andpunishment in a civilian court, not to seizure andconfinement by military authorities.

We recognize the understandable instincts ofthose who wish to treat domestic terrorists as“combatants” in a “global war on terror.” Alle-gations of criminal activity in association with aterrorist organization, however, do not permitthe Government to transform a civilian into anenemy combatant subject to indefinite militarydetention, just as allegations of murder in asso-ciation with others while in military service donot permit the Government to transform a civil-ian into a soldier subject to trial by court mar-tial. See United States ex rel. Toth v. Quarles,350 U.S. 11, 23 (1955) (holding that ex-service-men, “like other civilians, are entitled to havethe benefit of safeguards afforded those tried inthe regular courts authorized by Article III of theConstitution”).

To be sure, enemy combatants may commitcrimes just as civilians may. When an enemy

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combatant violates the law of war, that conductwill render the person an “unlawful” enemy com-batant, subject not only to detention but also tomilitary trial and punishment. Quirin, 317 U.S.at 31. But merely engaging in unlawful behaviordoes not make one an enemy combatant. Quirinillustrates these distinctions well. The Quirinpetitioners were first enemy combatants—asso-ciating themselves with the military arm of theGerman government with which the UnitedStates was at war. They became unlawful enemycombatants when they violated the law of war by“without uniform com[ing] secretly through thelines for the purpose of waging war.” Id. By doingso, in addition to being subject to military deten-tion for the duration of the conflict as enemycombatants, they also became “subject to trialand punishment by military tribunals for actswhich render their belligerency illegal.” Id. Hadthe Quirin petitioners never “secretly and with-out uniform” passed our “military lines,” id., theystill would have been enemy combatants, subjectto military detention, but would not have beenunlawful enemy combatants subject to militarytrial and punishment.

Neither Quirin nor any other precedent evensuggests, as our dissenting colleagues seem tobelieve, that individuals with constitutionalrights, unaffiliated with the military arm of anyenemy government, can be subjected to militaryjurisdiction and deprived of those rights solely onthe basis of their conduct on behalf of a terroristorganization.18 In fact, Milligan rejected the Gov-

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18 The distinction between organizations and nations isnot without rationale. The law of war does not classify per-

ernment’s attempt to do just this. There, theCourt acknowledged that Milligan’s conduct—“joining and aiding” a “secret political organiza-tion, armed to oppose the laws, and seek[ing] bystealthy means to introduce the enemies of thecountry into peaceful communities, there to . . .

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sons affiliated with terrorist organizations as enemy com-batants for fear that doing so would immunize them fromprosecution and punishment by civilian authorities in thecapturing country. See, e.g., Message from the President ofthe United States Transmitting the Protocol II Additional tothe 1949 Geneva Conventions, and Relating to the Protec-tion of Victims of Noninternational Armed Conflicts, S.Treaty Doc. No. 100-2, at IV (1987) (explaining PresidentReagan’s recommendation against ratifying a treaty provi-sion that “would grant combatant status to irregular forces”and so “give recognition and protection to terrorist groups”).

Moreover, a rule permitting indefinite military detentionof members of a “terrorist” organization as enemy combat-ants, in addition to being contrary to controlling precedent,Milligan, 71 U.S. at 130, could well endanger citizens of thiscountry or our allies. For example, a nation could employthis rule to treat American members of an environmentalgroup, which it regards as a terrorist organization, as enemycombatants and so subject those Americans to indefinite mil-itary detention. Under definitions as nebulous as the onesproposed by our dissenting colleagues, these fears are hardly“completely unfounded.” See post at 177 (Wilkinson, J., con-curring in part and dissenting in part). Foreign leaders whohave already designated members of these environmentalorganizations “terrorists” might well, applying the dissents’definitions, conclude that those individuals are enemy com-batants and thus detain them indefinitely without criminalprocess. See Hiroko Tabuchi, Japanese Are Hunting Hump-backs, Record (N.N.J.), Nov. 18, 2007, at A10 (reportingthat some Japanese leaders regard activists for Greenpeace,an organization with 2.8 million members, as terrorists);Amanda Hodge, Japan Warship “Sent to Help Whalers”,Australian, Jan. 2, 2006, at 3 (same).

overthrow the power of the United States”—madehim and his co-conspirators “dangerous enemiesto their country.” 71 U.S. at 6, 130. But the Gov-ernment did not allege that Milligan took ordersfrom any enemy government or took up armsagainst this country on the battlefield. And sothe Court held that the Government could notsubject Milligan to trial by military tribunal ortreat him as an enemy combatant subject to mil-itary detention as a prisoner of war. Milligan wasan “enem[y] of the country” and associated withan organization seeking to “overthrow[ ] the Gov-ernment” of this country, but he was still a civil-ian and had to be treated as one. Id.

Although Milligan involved a time in which ourdemocracy was much younger, it dealt with a warfully as threatening to our country as any pre-sent conflict. See id. at 88 (noting the Govern-ment’s argument that Milligan’s militarydetention must be permitted because “the factsare unprecedented” as is “the war out of whichthey grew”). Today, the Government contendsthat the fate of our nation requires the militarydetention of al-Marri and others lawfully resi-dent in this country because of their membershipin a terrorist organization. A century ago, theGovernment similarly contended that the mili-tary detention of Milligan and other members ofthe Sons of Liberty lawfully resident in thiscountry was necessary to “save the nation” fromthe terrorist plots of the “one hundred thousandmen enrolled in” that organization. Id. at 102,104. Thus Milligan, “one of [the Court’s] greatlandmarks,” Reid, 354 U.S. at 30, firmly andclearly rejected the argument the Government

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asserts here. The weakness of the dissents’ briefattempts to distinguish Milligan attests to thestrength of the precedent. (The concurrence doesnot even attempt a distinction.)

First, one of our dissenting colleagues main-tains that “reliance on Milligan” is “misplaced”because its principles “apply only after it hasbeen determined” that an individual “is a civil-ian, not a combatant.” Post at 182-83 (Wilkinson,J., concurring in part and dissenting in part); seealso post at 140. This contention ignores the Mil-ligan Court’s express rejection of the Govern-ment’s argument that Milligan, even if notsubject to military trial, could be held by the mil-itary as a prisoner of war during the duration ofhostilities. See Milligan, 71 U.S. at 131. As theHamdi plurality noted, that Milligan was not acombatant and therefore not a prisoner of warwas “central to” the Milligan holding. 542 U.S. at522 (noting if “Milligan [had] been capturedwhile . . . assisting Confederate soldiers by car-rying a rifle against Union troops on a Confed-erate battlefield, the holding of the Court mightwell have been different”). Thus, reliance on Mil-ligan is hardly “misplaced”: there, the SupremeCourt unequivocally rebuffed an argument pre-cisely parallel to the one the Government makeshere—that an unarmed civilian captured in hishome in the United States, rather than while“carrying a rifle . . . on a . . . battlefield,” could be“detained under military authority for the dura-tion of the conflict.” See id.

Second, and equally unconvincing, the dis-senters apparently believe that the enactment ofthe AUMF makes Milligan’s case distinguishable

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from al-Marri’s. See post at 117 (Williams, C.J.,concurring in part and dissenting in part)(acknowledging that Milligan governs the rightsof civilians but nevertheless finding that theAUMF permits the President to declare al-Marrian enemy combatant); post at 140 (Wilkinson, J.,concurring in part and dissenting in part)(asserting that because Congress did not autho-rize use of military force against “the Sons ofLiberty, Milligan’s organization,” but did, in theAUMF, authorize the use of force against “alQaeda, al-Marri’s organization,” Milligan’s “con-stitutional force” does not apply). This argumentclearly fails, too, for, as we discuss in detail inthe following section, it misreads the AUMF. Asthe Government expressly conceded at oral argu-ment, the AUMF authorizes the detention of onlyenemy combatants. The AUMF does not purportto alter the definition of enemy combatant and soprovides no basis for distinguishing al-Marrifrom Milligan or determining that al-Marri oranyone else “plainly qualifies” as an enemy com-batant. Post at 140 (Wilkinson, J., concurring inpart and dissenting in part).

In sum, the dissents have not—and cannot—distinguish Milligan. The Government’s allega-tions against Milligan mirror the Government’sallegations against al-Marri. If the Government’sallegations here are true, like Milligan, al-Marriis deplorable, criminal, and dangerous, but, likeMilligan, he is a civilian nonetheless and must betreated as one—for Congress certainly has not

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directed otherwise. Thus, we believe that theindefinite detention of al-Marri must cease.19

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19 We note that the Government’s treatment of al-Marri, i.e., subjecting him to military detention, which theGovernment insists “is not ‘punishment,’ ” is at odds withthe Government’s repeated recognition that criminal ter-rorist conduct by aliens in this country merits punishmentby a civilian court, not indefinite military detention as anenemy combatant. See, e.g., United States v. Abdi, 463 F.3d547, 550 (6th Cir. 2006) (civilian prosecution of suspected alQaeda terrorist who allegedly “indicated a desire to ‘shootup’ a Columbus shopping mall with an AK-47”); UnitedStates v. Moussaoui, 382 F.3d 453 (4th Cir. 2004) (civilianprosecution of al Qaeda conspirator involved in the Septem-ber 11th attacks); United States v. Reid, 369 F.3d 619, 619-20 (1st Cir. 2004) (civilian prosecution of terrorist alliedwith Bin Laden who attempted to destroy airplane withexplosives); United States v. Goba, 240 F. Supp. 2d 242, 244(W.D.N.Y. 2003) (civilian prosecution of associates of alQaeda, including those who met with Bin Laden and trainedin terrorist camps in Afghanistan). And after long con-tending he was an enemy combatant, the Government ulti-mately prosecuted even Jose Padilla in civilian court for hiscrimes. This practice is hardly new. Even the civilian co-con-spirators of the Quirin petitioners were tried for theircrimes in civilian courts. See Cramer v. United States, 325U.S. 1 (1945); United States v. Haupt, 136 F.2d 661 (7th Cir.1943).

The Government’s treatment of others renders its decisionto halt al-Marri’s criminal prosecution—on the eve of a pre-trial hearing on a suppression motion—puzzling at best. Al-Marri contends that the Government has subjected him toindefinite military detention, rather than see his criminalprosecution to the end, in order to interrogate him withoutthe strictures of criminal process. We trust that this is notso, for such a stratagem would contravene Hamdi’s injunc-tion that “indefinite detention for the purpose of interro-gation is not authorized.” 542 U.S. at 521. We note, however,that not only has the Government offered no other expla-

iii.

Moreover, the AUMF does not assist our dis-senting colleagues. The AUMF clearly states thatit is “intended to constitute specific statutoryauthorization within the meaning of section 5(b)of the War Powers Resolution.” § 2(b), 115 Stat.224. And under the War Powers Resolution, suchstatutory authorization permits the President to“exercise[ ]” his powers “as Commander-in-Chiefto introduce United States Armed Forces intohostilities” and to remain engaged in such hos-tilities for longer than sixty days. 50 U.S.C.A.§§ 1541(c), 1544(b) (West 2003). Thus, to say thatCongress did not have a dramatic expansion ofthe Executive’s military detention power in mind

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nation for abandoning al-Marri’s prosecution, it has evenpropounded an affidavit in support of al-Marri’s continuedmilitary detention, stating that he “possesses information ofhigh intelligence value.” See Rapp Declaration. Moreover,former Attorney General John Ashcroft has explained thatthe Government decided to declare al-Marri an enemy com-batant only after he became a “hard case” by “reject[ing]numerous offers to improve his lot by . . . providing infor-mation.” John Ashcroft, Never Again: Securing America andRestoring Justice 168-69 (2006). The Government’s recentadmission in other litigation that it has subjected al-Marrito repeated interrogation during his imprisonment in theNaval Brig would seem to substantiate al-Marri’s con-tention. See Decl. of Robert H. Berry, Jr., Defense Intelli-gence Agency, ¶¶ 8, 9, Ex. 2 in Def.’s Resp. to Pl.’s Mot. forPreservation Order and Inquiry into Spoliation of Evidence,Al-Marri v. Gates, No. 2:05-cv-02259-HFF-RSC (D.S.C. Apr.30, 2008) (stating that, although “a number of recordings ofthe Al-Marri interrogation sessions . . . were destroyed dur-ing the time period between December 1, 2004, and March31, 2005,” “subsequent investigation revealed . . . original orduplicate recordings of nine interrogation sessions”).

when it passed the AUMF is not “to say thatCongress had very little in mind at all.” Post at136 (Wilkinson, J., concurring in part and dis-senting in part). Rather, it is to say that in theAUMF, as in other general authorizations for theuse of force passed pursuant to the War PowersResolution, Congress intended to provide thestatutory authorization that it insists is requiredbefore the President may engage the UnitedStates Armed Forces in extended hostilitiesabroad.

At least some of our dissenting colleagues,however, apparently believe that enactment ofthe AUMF not only “activated the President’swar powers,” Hamdan, 126 S. Ct. at 2775, butalso substantially expanded and redefined thelegal category of enemy combatant. They arewrong. Plainly, the AUMF is not “a specific andtargeted congressional directive” aimed at whichindividuals “may be detained[ ] for purposes ofdomestic law.” Post at 116 (Williams, C.J., con-curring in part and dissenting in part). Rather,precisely because the AUMF contains only abroad grant of war powers and lacks any specificlanguage authorizing detention, the Hamdi plu-rality explained that its opinion “only finds leg-islative authority to detain under the AUMF onceit is sufficiently clear that the individual is, infact, an enemy combatant.” 542 U.S. at 523(emphasis added). Although the military deten-tion of enemy combatants like Hamdi is certainly“a fundamental incident of waging war,” id. at519, the military detention of civilians like al-Marri just as certainly is not.

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Even assuming the Constitution permittedCongress to grant the President such an awe-some and unprecedented power, if Congressintended to grant this authority, it could andwould have said so explicitly. The AUMF lacksthe particularly clear statement from Congressthat would, at a minimum, be necessary to autho-rize the indefinite military detention of civiliansas enemy combatants. See, e.g., Greene v. McEl-roy, 360 U.S. 474, 508 (1959) (rejecting Govern-ment argument that executive orders andstatutes permitted deprivation of liberty rightsabsent “explicit authorization”); Duncan v.Kahanamoku, 327 U.S. 304, 324 (1946) (rejectingGovernment argument that statute authorizedtrial of civilians by military tribunals becauseCongress could not have intended “to exceed theboundaries between military and civilian power,in which our people have always believed”); ExParte Endo, 323 U.S. 283, 300 (1944) (rejectingGovernment argument that a “wartime” execu-tive order and statute permitted detention of cit-izen of Japanese heritage when neither “use[d]the language of detention”); Brown v. UnitedStates, 12 U.S. (8 Cranch) 110, 128-29 (1814)(rejecting Government argument that declarationof war authorized confiscation of enemy propertybecause it did not clearly “declare[ ]” the legis-lature’s “will”). We are exceedingly reluctant toinfer a grant of authority that is so far afieldfrom anything recognized by precedent or law-of-war principles, especially given the serious con-stitutional concerns it would raise.

Additionally, nothing in the legislative historyof the AUMF supports the view that Congress

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intended the AUMF to provide the Presidentwith the unprecedented power claimed here.20 Infact, the legislative history suggests just theopposite—that in the AUMF Congress intendedneither to expand the definition of enemy com-batant to include civilians nor to authorize themilitary seizure and detention of civilians withinthe United States. Senator Daschle hasrecounted that “[l]iterally minutes before theSenate cast its vote” on the AUMF, “the admin-istration sought to add the words ‘in the UnitedStates and’ after ‘appropriate force’ in theagreed-upon text” to give “the President broadauthority to exercise expansive powers not justoverseas—where we all understood he wantedauthority to act—but right here in the UnitedStates, potentially against American citizens.”Tom Daschle, Editorial, Power We Didn’t Grant,Wash. Post, Dec. 23, 2005, at A21. The Senaterefused to “accede to this extraordinary request

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20 Judge Wilkinson challenges our reliance on legisla-tive history. Post at 138-39. But none of our conclusionsrests solely, or even principally, on analysis of the legisla-tive history of the AUMF and the Patriot Act. We fully rec-ognize that several of the statements to which we cite weremade after the enactment of those statutes. But these state-ments—both those made contemporaneously and those madeafter the fact—do nevertheless provide further evidenceregarding the limited scope of the AUMF. See Boumediene,553 U.S. at ___, slip op. at 8 (approving as “correct” relianceon “legislative history when construing” a related statute,the MCA). Moreover, we cannot help but observe thatalthough Judge Wilkinson criticizes us for relying on com-ments from the “distinguished members of the legislativebranch,” post at 139, he himself relies extensively on com-ments of those much further removed from the legislativeprocess—distinguished legal academics.

for additional authority.” Id.; see also WartimeExecutive Power and the National SecurityAgency’s Surveillance Authority: Hearings Beforethe S. Comm. on the Judiciary, 109th Cong. 126(2006) (statement of Sen. Specter, Chairman, S.Comm. on the Judiciary) (“[The proposal to add‘in the United States’] was rejected since it wouldgive the President broad authority not just over-seas, but also in the United States.”). The con-gressional debates on the AUMF similarlyindicate that key members of Congress believedthat the AUMF only authorized the use of mili-tary force abroad, not within the United States.See, e.g., 147 Cong. Rec. 17,047 (2001) (statementof Sen. Biden) (“In extending this broad author-ity to cover those ‘planning, authorizing, com-mitting, or aiding the attacks’ it should gowithout saying, however, that the resolution isdirected only at using force abroad to combatacts of international terrorism.” (emphasisadded)); 147 Cong. Rec. 17,111 (2001) (statementof Rep. Lantos) (“The resolution before usempowers the President to bring to bear the fullforce of American power abroad in our struggleagainst the scourge of international terrorism.”(emphasis added)).

Furthermore, the day after Congress enactedthe AUMF, it began consideration of anotherstatute, which it enacted a few weeks later, thatdid explicitly authorize the President to arrestand detain “terrorist aliens” living within theUnited States believed to have come here to per-petrate acts of terrorism. See Uniting andStrengthening America by Providing AppropriateTools Required to Intercept and Obstruct Ter-

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rorism Act of 2001, Pub. L. No. 107-56, 115 Stat.272 [hereinafter Patriot Act].21 However, thePatriot Act only authorizes detention for a lim-ited time pending deportation or trial, accompa-nied by civilian law enforcement processes andcareful congressional oversight; it expressly pro-hibits “indefinite detention” of “terrorist aliens.”The explicit authorization for limited detention

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21 The legislative history of the Patriot Act (originallytitled the Anti-Terrorism Act of 2001) indicates that theAdministration initially requested the power to indefinitelydetain “terrorist aliens” within the United States. But inlegislative hearings, members of both parties fiercelyobjected to this authorization, and several viewed autho-rization of indefinite detention as unconstitutional. See, e.g.,Homeland Defense: Hearing Before the S. Comm. on theJudiciary, 107th Cong. 18, 26, 28 (2001); Administration’sDraft Anti-Terrorism Act of 2001: Hearings Before the H.Comm. on the Judiciary, 107th Cong. 21, 40, 54 (2001). Inthe course of these hearings, no one—no legislator and nomember of the Administration—suggested that the AUMFalready granted the President the power to order indefinitemilitary detention of some terrorists within the UnitedStates. Congressional opposition to indefinite detention ulti-mately forced the Administration to accept elimination ofindefinite detention from the Patriot Act. See Patriot Act§ 412(a); see also 147 Cong. Rec. 19,507 (2001) (SenatorHatch relating that “Senator Kennedy, Senator Kyl, and Iworked out a compromise that limits the [detention] provi-sion”); 147 Cong. Rec. 20,448 (2001) (RepresentativeDelahunt stating that negotiations had led to a “better bill”than that reflected in the initial proposal, which includedauthorization of indefinite detention). That the Adminis-tration and Congress felt the need during the hearings andmarkup to address indefinite detention of terrorists in suchdetail and at such length certainly suggests that no onebelieved that the AUMF, passed just days before the PatriotAct, already granted the President such authority.

and criminal process in civilian courts in thePatriot Act provides still another reason why wecannot assume that in the AUMF Congresssilently empowered the President to order theindefinite military detention of civilian “terroristaliens” as enemy combatants without any crimi-nal process.

We note that this does not mean that we acceptal-Marri’s contention that the Patriot Act affir-matively prohibits the detention of all suspectedterrorist aliens within this country as enemycombatants. Plainly, the Patriot Act does noteliminate the statutory authority provided thePresident in the AUMF to detain individuals whofit within the “legal category” of enemy combat-ant; thus, if an alien “qualif[ies]” as an enemycombatant, then the AUMF authorizes his deten-tion. Hamdi, 542 U.S. at 516. But if there wereany conflict between the Patriot Act and theAUMF as to the legality of the detention of ter-rorist alien civilians within the United States,we would have to give precedence to the PatriotAct—for while the Patriot Act’s explicit and spe-cific focus is on detention of terrorist alienswithin the United States, the AUMF lacks anylanguage permitting such detention. See id. at519. And the Supreme Court has instructed that“a more specific statute will be given precedenceover a more general one, regardless of their tem-poral sequence.” Busic v. United States, 446 U.S.398, 406 (1980); see also Edmond v. UnitedStates, 520 U.S. 651, 657 (1997).22

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22 Judge Williams acknowledges that the Patriot Actprohibits indefinite detention of unarmed alleged terroristaliens captured in the United States, and she recognizes

iv.

Finally, we do not find our dissenting col-leagues’ respective new definitions of enemy com-batant at all compelling. The dissents do notcontend that, under traditional law-of-war prin-ciples, enemy combatant status would extend to

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that the Patriot Act, as the “more-specific provision[ ],” gov-erns if it “deal[s] with the same subject matter” as theAUMF. Post at 119. Yet she refuses to recognize that herexpansive interpretation of the AUMF permits indefinitedetention of precisely the same persons (unarmed allegedterrorist aliens captured in the United States) whose indef-inite detention is prohibited by the Patriot Act. The solerationale Judge Williams offers for refusing to hold thePatriot Act controls given this conflict is that, in her view,the two statutes “refer” to presidential powers set forth indifferent sections of the Constitution and, therefore, shouldnot be read to conflict. Post at 119 (suggesting that thePatriot Act “refer[s] to the President’s power” under theTake Care Clause, while the AUMF “relates to the Com-mander-in-Chief power”). Even if this view is correct, theSupreme Court has never suggested that this is a relevantconsideration in determining whether two statutes conflict.Indeed, Judge Williams has not cited, and we have notfound, any authority to support such an analysis. TheSupreme Court has long directed that courts follow the “wellsettled rule” that a specific statute controls over a generalone as a means to ascertain legislative intent. Townsend v.Little, 109 U.S. 504, 512 (1883) (noting that when “generaland specific provisions” are “in apparent contradiction,whether in the same or different statutes,” the specific will“qualify[ ] and supply[ ] exceptions to the general”); Kepnerv. United States, 195 U.S. 100, 125 (1904); see also BulovaWatch Co. v. United States, 365 U.S. 753, 758 (1961) (col-lecting cases). Where—indeed whether—legislation “refer[s]”to a specific executive power permitting the President toenforce the congressional authorization matters not at all inmaking this determination.

al-Marri. See, e.g., post at 116 (Williams, C.J.,concurring in part and dissenting in part) (“Theplurality opinion may very well be correct that,under the traditional ‘law of war,’ persons notaffiliated with the military of a nation-state maynot be considered enemy combatants.”); post at162, 173 (Wilkinson, J., concurring in part anddissenting in part) (“Traditionally, the definitionof ‘enemy’ has been state-based . . . .”).23 Instead,to justify al-Marri’s indefinite military detention,the dissents resort to inventing novel definitionsof enemy combatant, drawing on their ownbeliefs as to when detention is appropriate. Thatthese judicially-created definitions differ somarkedly from one another follows from the factthat each is simply the product of judicial con-jecture; any limits on whom the Executive maydetain as an enemy combatant are thus left to anindividual judge. This is particularly troublingbecause, as our distinguished colleague hasobserved, “ ‘it is difficult to conceive of an area ofgovernmental activity in which the courts haveless competence’ than military affairs.” Post at142 (Wilkinson, J., concurring in part and dis-senting in part) (quoting Gilligan v. Morgan, 413U.S. 1, 10 (1973)).

Moreover, Supreme Court precedent seems toforeclose the dissenters’ rejection of traditionallaw-of-war principles. On every occasion in which

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23 The concurrence takes a different view, apparentlycontending that traditional law-of-war principles permit themilitary detention of al-Marri and persons like him. See postat 77 (Traxler, J., concurring in the judgment). For the rea-sons set forth above, we disagree.

the Court has considered—even tangentially—the important issues at stake in this case, it hasinvoked and relied on traditional law-of-warprinciples for guidance. See, e.g., Quirin, 317U.S. at 27-38 (“From the very beginning of itshistory this Court has recognized and applied thelaw of war . . . .”). Indeed, one of the dissenterssomewhat grudgingly recognizes this. See post at175 (Wilkinson, J., concurring in part and dis-senting in part) (acknowledging that “[t]heSupreme Court insists we consult” traditionallaw-of-war principles in determining enemy com-batant status).

In Hamdi, the Court had the opportunity tointerpret the AUMF to incorporate new defini-tions like those proposed by the dissenters, but itrefused to do so. Rather, the Court continued tohue closely to traditional and “longstanding law-of-war principles.” 542 U.S. at 521. Of course, theHamdi plurality noted that “[t]he permissiblebounds” of “[t]he legal category of enemy com-batant” would “be defined by the lower courts assubsequent cases are presented to them.” Id. at522 n.1. But nothing in any of the Hamdi opin-ions suggests that lower courts, absent expresscongressional authorization, are free to venturebeyond traditional law-of-war principles to fash-ion these “permissible bounds.” Reading Hamdito permit such an action is a huge leap. For fourtimes in as many pages the Hamdi plurality cau-tioned that it was only willing to find that theAUMF authorized detention, as an enemy com-batant, of a person who fit within “the narrowcategory” presented—a person affiliated with anenemy nation, captured on a battlefield, and

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engaged in armed conflict against the UnitedStates. Id. at 516-19. Contrary to our dissentingcolleague’s contentions, these traditional law-of-war principles are hardly “quaint” or “outmoded.”Post at 128, 175, 185 (Wilkinson, J., concurringin part and dissenting in part). Rather, as theSupreme Court recently counseled, “[e]stablishedlegal doctrine . . . must be consulted for its teach-ing. Remote in time it may be; irrelevant to thepresent it is not.” Boumediene, 553 U.S. at ___,slip op. at 68.

Furthermore, on the very same day that theCourt issued Hamdi, four Justices expresslydeclared that in their view the AUMF “does notauthorize . . . the protracted, incommunicadodetention of American citizens arrested in theUnited States.” Rumsfeld v. Padilla, 542 U.S.426, 464 n.8 (2004) (Stevens, J., dissenting,joined by Souter, Ginsburg, & Breyer, JJ.)(emphasis added). Although Justice Scaliadeclined to reach the issue in Padilla, when dis-senting in Hamdi, he similarly rejected the argu-ment that the AUMF authorized the detention ofUnited States citizens absent invocation of theSuspension Clause, stating that the AUMF didnot “authorize[ ] detention of a citizen with theclarity necessary to satisfy the interpretive canonthat statutes should be construed so as to avoidgrave constitutional concerns.” 542 U.S. at 554,574. Given that the Government has nowexpressly conceded that aliens lawfully residingin the United States, like al-Marri, have thesame due process rights as citizens, it wouldseem that a majority of the Court not only would

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reject the new definitions that the dissents pro-pose, but in fact has already done so.

Although we respect our colleagues’ hard work,we also find the specific rationales they offer insupport of their respective new definitions totallyunpersuasive.

a.

Judge Williams finds that in the AUMF,Congress has authorized the indefinite militarydetention, as an “enemy combatant,” of any indi-vidual “who meets two criteria: (1) he attemptsor engages in belligerent acts against the UnitedStates, either domestically or in a foreign combatzone; (2) on behalf of an enemy force.” Post at116. Her definition requires neither an affiliationwith an enemy nation nor capture on a battle-field, nor anything else but attempted injuriousacts “against the United States” on behalf ofsome hostile, organized group. As we haveexplained above, this new definition finds no sup-port in the AUMF, Hamdi, or Quirin. We notethat Judge Williams appears to place substantialweight on Quirin’s reference to “enemy belliger-ents, including those acting under the directionof the armed forces of the enemy,” 317 U.S. at 37(emphasis added), to conclude that an enemycombatant need only be affiliated with an “enemyforce,” rather than a nation-state. Post at 116.She ignores the fact that the Court in Quirindefined “armed forces” in accord with traditionallaw-of-war principles as forces of “belligerentnations.” 317 U.S. at 30 (emphasis added).

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Judge Williams attempts to limit the indefinitenature of the detention allowed under her broaddefinition of enemy combatant by associating al-Marri with ongoing hostilities in Afghanistan.See post at 117-18. But this invocation of a spe-cific conflict in a specific country does nothing tocircumscribe her construction of the AUMF,which imposes no limits on detention as long assomewhere in the world, someone is attemptingbelligerent acts against the United States onbehalf of an “enemy force.” Indeed, in response toquestions from the en banc court, the DeputySolicitor General admitted that in the Govern-ment’s view, the Executive could hold an indi-vidual like al-Marri in military custody withoutcharges, not just until the end of the conflict inAfghanistan, but “during the course of” all “ongo-ing hostilities,” which he conceded could be “fora long time.” Cf. Boumediene, 553 U.S. at ___,slip op. at 41 (noting that the duration of the cur-rent conflict “is already among the longest warsin American history”).

In sum, by abandoning precedent and tradi-tional law-of-war principles, Judge Williams ren-ders the term “enemy combatant” utterlymalleable. Such a definition presents serious con-stitutional concerns. For an amorphous definitionlike that proposed by Judge Williams, lackingany of the limits provided by precedent and tra-ditional law-of-war principles, simply will notensure that “detention without trial ‘is the care-fully limited exception,’ ” rather than the rule.Hamdi, 542 U.S. at 529 (quoting Salerno, 481U.S. at 755); see also supra n.19. We cannotagree that in the AUMF Congress replaced the

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narrow, established definition of enemy combat-ant with such a vague and unbounded one.

b.

Judge Wilkinson takes a very different, but nomore persuasive, approach. Unlike every othermember of this court, he maintains that theAUMF must be interpreted solely in terms of itsbroad language. See post at 133-43. Under thisapproach, the AUMF yields no definition ofenemy combatant and thus, as Judge Wilkinsonacknowledges, imposes no “limiting principle onenemy combatant detentions.” Post at 176. Rec-ognizing the necessity for such limits, JudgeWilkinson then creates constitutional criteria forestablishing enemy combatant status. He pro-poses that to be classified as an enemy combat-ant subject to indefinite military detention:

[a] person must (1) be a member of (2) anorganization or nation against whomCongress has declared war or authorizedthe use of military force, and (3) know-ingly plans or engages in conduct thatharms or aims to harm persons or prop-erty for the purpose of furthering themilitary goals of the enemy nation ororganization.

Post at 179. He explains, praises, and thenapplies these criteria to al-Marri, unsurprisinglyconcluding that al-Marri meets them and there-fore is an enemy combatant. Post at 175-85.Without in any way denigrating Judge Wilkin-son’s extensive efforts, we do not believe that the

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approach he advocates is open to us. In additionto the problems set forth above, several other fac-tors make such an approach untenable.

First, Judge Wilkinson’s statutory analysiscannot be reconciled with that of the SupremeCourt in Hamdi. There, the Court expresslyrelied on traditional law-of-war principles tointerpret the AUMF. 542 U.S. at 517-21. Indeed,just this term, when discussing Hamdi, theSupreme Court characterized the holding of thatcase as resting on traditional law-of-war princi-ples, explaining that the “detention of individu-als who fought against the United States inAfghanistan . . . is so fundamental and acceptedan incident to war” that it constitutes “an exer-cise of the necessary and appropriate forceCongress has authorized the President to use.”Boumediene, 553 U.S. at ___, slip op. at 2 (inter-nal quotation marks omitted). Thus, althoughJudge Wilkinson defends his statutory analysisby asserting that we must “giv[e the] text [of theAUMF] some semblance of the meaning thatCongress intended for it,” post at 157, he utterlyfails to acknowledge that the Supreme Court hastwice held that the AUMF evinces Congress’sintent to incorporate established law-of-war prin-ciples.

Second, by refusing to construe the AUMFthrough the lens of traditional law-of-war principles, as Hamdi did (and we do), JudgeWilkinson ignores a construction that avoids con-stitutional difficulties and instead chooses onethat abounds in them. See post at 156 (recogniz-ing the “serious constitutional issues that result”from giving full effect to the broad language of

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the AUMF); see also post at 131-32, 158-59, 176-77. This approach clearly violates the settled con-stitutional avoidance doctrine, which requiresthat, whenever possible, a statute be construedto avoid rather than “raise serious constitutionalproblems.” See Edward J. DeBartolo Corp. v. Fla.Gulf Coast Bldg. & Constr. Trades Council, 485U.S. 568, 575 (1988) (collecting cases). TheSupreme Court has repeatedly stressed theimportance of this doctrine. See, e.g., SpectorMotor Serv. v. McLaughlin, 323 U.S. 101, 105(1944) (explaining that this doctrine is “moredeeply rooted than any other in the process ofconstitutional adjudication”). Thus, when, ashere, a court can choose between a constructionof a statute that avoids constitutional problemsand one that “would raise” them, the former “pre-vail[s].” Clark v. Martinez, 543 U.S. 371, 380-82(2005). Because “one of the [doctrine’s] chief jus-tifications is that it allows courts to avoid thedecision of constitutional questions,” a courtmust avoid an interpretation that raises seriousconstitutional questions regardless of whetherthe court’s concerns are borne out on full con-sideration. Id. at 381 (emphasis in original). Ofparticular relevance here, a court must avoid aninterpretation that raises serious constitutionalquestions “whether or not those constitutionalproblems pertain to the particular litigant beforethe Court.” Id.

Nor do the difficulties with Judge Wilkinson’sapproach end with his statutory analysis. Afterrejecting reliance on law-of-war principles ininterpreting the AUMF, Judge Wilkinson makesthe startling contention that his constitutional

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criteria for defining enemy combatant “conformto the evolving principles of the law of war.” Postat 175. We find it very strange indeed that herefuses to accord law-of-war principles any statu-tory relevance but then ascribes them a consti-tutional significance that would limit both theexecutive and legislative branches. Moreover,Judge Wilkinson offers no legal authority for theassertion that the law of war has in fact“evolved” to provide a basis for his proposed cri-teria, other than his own “emphatic[ ]conten[tion]” that it has. Post at 175.24 As Judge

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24 In response to this assertion, Judge Wilkinson sur-prisingly contends that the AUMF provides “legal authority”for his view that the law of war has “evolved” to support hiscriteria. Post at 174. In none of the Supreme Court’s recentterrorism cases has it recognized the AUMF as evidencingany “evol[ution]” in law-of-war principles. To the contrary,the Court has consistently interpreted the AUMF as cir-cumscribed by traditional law-of-war principles. Indeed, ear-lier in his opinion, Judge Wilkinson himself repeatedly andcorrectly recognizes that judges have consistently inter-preted the AUMF in this manner. See, e.g., post at 160.Judge Wilkinson’s contention that the AUMF evidences anevolution in law-of-war principles not only ignores govern-ing precedent, it also creates an entirely circular argument.First, Judge Wilkinson finds it necessary to determine the“constitutional limits” on the authority granted by theAUMF. Post at 156. Then he posits that the “law of war . . .informs” these constitutional limits on the AUMF. Post at160. And finally he identifies the AUMF itself as the solelegal authority supporting his conception of the evolving lawof war, which assertedly “informs” the constitutional limitson the AUMF. Post at 174-75. Of course, when a statuteitself somehow informs the principles governing the con-stitutional review of the power it authorizes, the constitu-tionality of that authorization inevitably follows.

Wilkinson acknowledges, changes in the law ofwar typically appear in treaties or internationalagreements, see post at 161, yet no treaty oragreement suggests any change in or evolutionfrom the traditional law-of-war definition ofenemy combatant.

Perhaps recognizing the difficulties outlinedabove, the Government has not in any of itsextensive legal briefs or during its lengthy oralarguments espoused Judge Wilkinson’s criteriaeither as a basis for interpreting the AUMF or asan independent set of constitutional limits onexecutive and congressional authority. Rather,when pressed at oral argument as to the sourceof the criteria for determination of enemy com-batant status in this case, the Deputy SolicitorGeneral assured us that the Government reliedonly on the traditional law-of-war principlesarticulated in Hamdi and Quirin.

In the last analysis, Judge Wilkinson’sapproach seems to be driven by his undoubtedlysincere belief that his new criteria best identifythose individuals who should qualify as enemycombatants in our conflict with al Qaeda. Per-haps so. However, surely the determination ofwho should be classified as an enemy combatantis a task best left in the first instance to thepolitical branches. See Boumediene, 553 U.S. at___, slip op. at 68 (recognizing that when judgesconsider “the procedural and substantive stan-dards used to impose detention to prevent acts ofterrorism, proper deference must be accorded tothe political branches”). Neither the Presidentnor Congress has indicated any intent or desireto adopt Judge Wilkinson’s new definition of

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enemy combatant. Rather, both politicalbranches have been content to be guided by thetraditional law-of-war principles against whichthe AUMF was enacted.

Given the total absence of authority for JudgeWilkinson’s approach, we cannot adopt it, par-ticularly in view of the Government’s consideredfailure to champion this approach. Before con-cluding our discussion of Judge Wilkinson’s posi-tion, we want to acknowledge his stirringstatements as to why criminal process is ill-suited to deal with the unique problems pre-sented by the prosecution of terrorists. Post at147-51. But see Richard B. Zabel & James J. Ben-jamin, Jr., In Pursuit of Justice: Prosecuting Ter-rorism Cases in the Federal Courts 5 (2008)(analyzing data from over one hundred interna-tional terrorism cases prosecuted in U.S. federalcourts and concluding that the criminal justice“system is generally well-equipped to handlemost terrorism cases”). Whatever the merits ofJudge Wilkinson’s statements, we want to beclear that our rejection of his approach does notstem from some sort of “preference” for the crim-inal justice system. Post at 143. We reject JudgeWilkinson’s position because we conclude, for allof the reasons set forth above, that al-Marri is acivilian, and our Constitution demands, notprefers, that civilians be afforded the rightsinherent in that system.25

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25 Judge Wilkinson also contends that the militarydetention of al-Marri and persons like him strikes theproper “balance” between criminal prosecution and militarydetention, that “the best way to maximize liberty for all” isto remove such persons from the criminal justice system so

v.

In sum, neither the Government nor our dis-senting colleagues have offered, and although we

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as not to “dilute the core protections of” that system, andthat extending criminal process to these people “risks push-ing the executive . . . in a more extreme direction.” Post at152-53. If true, this might provide some sort of philosophi-cal (albeit not legal) justification for al-Marri’s militarydetention. But recent admissions by the Administrationitself, in fact, indicate that military detention in the recentconflicts has not achieved the proper “balance,” but ratherhas permitted the Executive to pursue a very “extremedirection.” In this vein, we note the admission by CIA direc-tor Michael Hayden that the CIA waterboarded al Qaedasuspects in order to extract intelligence, see Dan Eggen,White House Defends CIA’s Use of Waterboarding in Inter-rogations, Wash. Post, Feb. 7, 2008, at A3; Hayden’sacknowledgment that the CIA destroyed hundreds of hoursof videotapes documenting interrogation of two al Qaedaoperatives, sparking separate investigations by the JusticeDepartment and the House Intelligence Committee, seeMark Mazzetti, CIA Destroyed 2 Tapes Showing Interroga-tions, N.Y. Times, Dec. 7, 2007, at A1; Mark Mazzetti &David Johnston, U.S. Announces Criminal Inquiry Into CIATapes, N.Y. Times, Jan. 3, 2008, at A1; Mark Mazzetti &Scott Shane, Tapes’ Destruction Hovers Over Detainee Cases,N.Y. Times, Mar. 28, 2008, at A1; President Bush’s disclo-sure that at least fourteen al Qaeda suspects were held foryears, secretly and without charges, in covert CIA “blacksites” outside the United States, see Jane Mayer, The BlackSites, New Yorker, Aug. 13, 2007, at 46; Sheryl Gay Stol-berg, President Moves 14 Held in Secret to Guantanamo,N.Y. Times, Sept. 7, 2006, at A1; the public admission bySecretary of State Condoleezza Rice that the United Statesmishandled the case of Canadian Maher Arar, who wasdetained by United States officials in 2002 and deported toSyria, where Arar was allegedly held for ten months in a 3-by-6-foot cell and repeatedly beaten by Syrian interrogators,

have exhaustively searched, we have not found,any authority that permits us to hold that theAUMF empowers the President to detain al-Marri as an enemy combatant. If the Govern-ment’s allegations are true, and we assume theyare for present purposes, al-Marri, like Milligan,is a dangerous enemy of this nation who has com-mitted serious crimes and associated with asecret terrorist organization that has engaged inhostilities against us. But, like Milligan, al-Marriis still a civilian: he does not fit within the “per-missible bounds of” “[t]he legal category of enemycombatant.” Hamdi, 542 U.S. at 522 n.1. There-fore, we believe the AUMF provides the Presi-dent no statutory authority to order the militaryto seize and indefinitely detain al-Marri.

C.

Thus, we turn to the Government’s final con-tention. The Government summarily argues thateven if the AUMF does not authorize al-Marri’s

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often with frayed electrical cables, see Rice Admits U.S.Erred in Deportation, N.Y. Times, Oct. 25, 2007, at A10; IanAusten, Canada Will Pay $9.75 Million to Man Sent to Syriaand Tortured, N.Y. Times, Jan. 27, 2007, at A5; and, finally,the recently declassified March 14, 2003, memorandum ofthe Office of Legal Counsel, advising Pentagon officials thatneither federal laws prohibiting assault, maiming, and othercrimes nor the U.N. Convention Against Torture nor cus-tomary international law prohibiting torture would apply tomilitary interrogation of al Qaeda detainees overseas,because the President’s authority as Commander-in-Chiefoverrode such restrictions, see Dan Eggen & Josh White,Memo: Laws Didn’t Apply to Interrogators, Wash. Post, Apr.2, 2008, at A1.

seizure and indefinite detention as an enemycombatant, the President has “inherent consti-tutional authority” to order the military to seizeand detain al-Marri. According to the Govern-ment, the President’s “war-making powers”afford him “inherent” authority to subject per-sons legally residing in this country and pro-tected by our Constitution to military arrest anddetention, without the benefit of any criminalprocess, if the President believes these individ-uals have “engaged in conduct in preparation foracts of international terrorism.” See Rapp Dec-laration. Given that the Government has nowacknowledged that aliens lawfully residing in theUnited States have the same due process rightsas United States citizens, this is a breathtakingclaim—and one that no member of the courtembraces.

To assess claims of presidential power, theSupreme Court has long recognized, as JusticeKennedy stated most recently, that courts look tothe “framework” set forth by Justice Jackson inYoungstown Sheet & Tube Co. v. Sawyer, 343U.S. 579, 635-38 (1952) (Jackson, J., concurring).See Hamdan, 126 S. Ct. at 2800 (Kennedy, J.,concurring). Justice Jackson explained that“Presidential powers are not fixed but fluctuate,depending upon their disjunction or conjunctionwith those of Congress.” Youngstown, 343 U.S. at635 (Jackson, J., concurring). “When the Presi-dent acts pursuant to an express or impliedauthorization of Congress, his authority is at itsmaximum,” id., but “[w]hen the President takesmeasures incompatible with the expressed orimplied will of Congress, his power is at its low-

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est ebb,” id. at 637. Hence, to evaluate the Pres-ident’s constitutional claim, we must first look tothe “expressed or implied will of Congress” as todetention of aliens captured within the UnitedStates alleged to be engaged in terrorist activity.

1.

In contrast to the AUMF, which is silent on thedetention of asserted alien terrorists capturedand held within the United States, in the PatriotAct, enacted shortly after the AUMF, Congresscarefully stated how it wished the Government tohandle aliens believed to be terrorists who wereseized and held within the United States. ThePatriot Act provides the Executive with broadpowers to deal with “terrorist aliens,” but itexplicitly prohibits their indefinite detention.

Section 412 of the Patriot Act, entitled “Manda-tory Detention of Suspected Terrorists,” permitsthe short-term “[d]etention of [t]errorist [a]liens.”Patriot Act § 412(a). The statute authorizes theAttorney General to detain any alien whom he“has reasonable grounds to believe”: (1) “seeks toenter the United States” to “violate any law ofthe United States relating to espionage or sabo-tage” or to use “force, violence, or other unlawfulmeans” in opposition to the government of theUnited States; (2) “has engaged in a terroristactivity”; or (3) is “likely to engage after entry inany terrorist activity,” has “incited terroristactivity,” is a “representative” or “member” of a“terrorist organization,” is a “representative” ofa “group that endorses or espouses terroristactivity,” or “has received military-type training”

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from a terrorist organization. Id.; 8 U.S.C.A.§ 1182(a)(3)(A)-(B) (West 2007); see also 8U.S.C.A. § 1227(a)(4)(A)(i), (a)(4)(A)(iii), (a)(4)(B)(West 2007). In addition, the Patriot Act autho-rizes the Attorney General to detain any otheralien who “is engaged in any other activity thatendangers the national security of the UnitedStates.” Patriot Act § 412(a). In particular, thePatriot Act permits the Attorney General to “takeinto custody” any “terrorist aliens” based only onthe Attorney General’s “belie[fs]” as to the aliens’threat, with no process or evidentiary hearing,and judicial review available only through peti-tion for habeas corpus. Id.

Recognizing the breadth of this grant of power,however, Congress also imposed strict limits inthe Patriot Act on the duration of the detentionof such “terrorist aliens” within the UnitedStates. Thus, the Patriot Act expressly prohibitsunlimited “indefinite detention”; instead itrequires the Attorney General either to begin“removal proceedings” or to “charge the alienwith a criminal offense” “not later than 7 daysafter the commencement of such detention.” Id. Ifa terrorist alien’s removal “is unlikely for thereasonably foreseeable future,” he “may bedetained for additional periods of up to sixmonths” if his release “will threaten the nationalsecurity of the United States.” Id. But no provi-sion of the Patriot Act allows for unlimited indef-inite detention. Moreover, the Attorney Generalmust provide the legislature with reports on theuse of this detention authority every six months,which must include the number of aliens

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detained, the grounds for their detention, and thelength of the detention. Id. § 412(c).

Therefore, the Patriot Act establishes a specificmethod for the Government to detain aliens affil-iated with terrorist organizations who the Gov-ernment believes have come to the United Statesto endanger our national security, conduct espi-onage and sabotage, use force and violence tooverthrow the government, engage in terroristactivity, or are likely to engage in any terroristactivity. Congress could not have betterdescribed the Government’s allegations againstal-Marri—and Congress decreed that individualsso described are not to be detained indefinitely,but only for a limited time, and only by civilianauthorities, prior to deportation or criminal pros-ecution.

In sum, Congress has carefully prescribed theprocess by which it wishes to permit detention of“terrorist aliens” within the United States, and ithas expressly prohibited the indefinite detentionthe President seeks here. The Government’sargument that the President may indefinitelydetain al-Marri is thus contrary to Congress’sexpressed will. “When the President takes mea-sures incompatible with the expressed or impliedwill of Congress, his power is at its lowest ebb,for then he can rely only upon his own constitu-tional powers minus any constitutional powers ofCongress over the matter.” Youngstown, 343 U.S.at 637 (Jackson, J., concurring). As the SupremeCourt has recently explained, “[w]hether or notthe President has independent power . . . he maynot disregard limitations that Congress has, inproper exercise of its own war powers, placed on

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his powers.” Hamdan, 126 S. Ct. at 2774 n.23(citing Youngstown, 343 U.S. at 637 (Jackson, J.,concurring)). In such cases, “Presidentialclaim[s]” to power “must be scrutinized with cau-tion, for what is at stake is the equilibriumestablished by our constitutional system.”Youngstown, 343 U.S. at 638 (Jackson, J., con-curring).

2.

In light of the Patriot Act, therefore, we must“scrutinize[ ] with caution” the Executive’s con-tention that the Constitution grants the Presi-dent the power to capture and subject toindefinite military detention certain civilianslawfully residing within the United States. Id.The Government nowhere suggests that the Pres-ident’s inherent constitutional power to detaindoes not extend to American citizens. Yet itgrounds its argument that the President has con-stitutional power to detain al-Marri on his alienstatus. Even though at oral argument before theen banc court the Government acknowledged thatan alien legally resident in the United States hasthe same due process rights as an American cit-izen, the Government apparently maintains thatalien status permits the President to exercisespecial “peak” authority over legally residentaliens like al-Marri. The Government can so con-tend only by both ignoring the undisputed andrelying on the inapposite.

It is undisputed that al-Marri had been legallyadmitted to the United States, was attending anAmerican university from which he had earlier

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received an undergraduate degree, and waslegally residing here (with his family) for severalmonths before the Government arrested him athis home in Peoria. The Government’s refusal toacknowledge these undisputed facts dooms itscontention that al-Marri’s status as an aliensomehow provides the President with special“peak” authority to deprive al-Marri of constitu-tional rights. For, as we have noted within, andas the Government itself has conceded on rehear-ing, the Supreme Court has repeatedly andexpressly held that aliens like al-Marri, i.e.,those lawfully admitted into the United Stateswho have “developed substantial connectionswith this country,” are entitled to the Constitu-tion’s due process protections. Verdugo-Urquidez,494 U.S. at 271; see also Sanchez-Llamas, 126 S.Ct. at 2681-82; Kwong Hai Chew, 344 U.S. at596; Wong Wing, 163 U.S. at 238. No case sug-gests that the President, by fiat, can eliminatethe due process rights of such an alien.

Without even a mention of these undisputedfacts and controlling legal principles, the Gov-ernment relies on two sorts of inapposite cases asassertedly establishing special presidentialauthority over aliens like al-Marri. The first ofthese, Eisentrager, 339 U.S. at 769 n.2, andLudecke, 335 U.S. at 161-62, involves “enemyaliens.” In those cases, the Supreme Court specif-ically defined “enemy aliens,” but the Court didnot define them as aliens who commit crimesagainst our country and so are enemies, as theGovernment seems to suggest. Rather, theSupreme Court defined “enemy aliens” as “sub-ject[s] of a foreign state at war with the United

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States.” Eisentrager, 339 U.S. at 769 n.2. Al-Marri plainly is not the “subject of a foreign stateat war with the United States” and so is not an“enemy alien,” but rather is a citizen of Qatar, acountry with which the United States hasfriendly relations. Thus Eisentrager and Ludeckeprovide no basis for asserting authority over al-Marri. In fact, elsewhere in its brief, the Gov-ernment concedes, as it must, that Eisentragerand Ludecke do not “have direct application” toal-Marri.

The other inapposite cases on which the Gov-ernment relies involve congressional authorityover aliens stemming from Congress’s power overnaturalization and immigration—not some spe-cial “inherent” constitutional authority enjoyedby the President over aliens. See Mathews v.Diaz, 426 U.S. 67, 79-80 (1976); Harisiades v.Shaughnessy, 342 U.S. 580, 588-91 (1952). Thesecases do not speak to the powers of the Presidentacting alone—let alone contrary to an Act ofCongress—and certainly do not suggest that thePresident has the power to subject to indefinitemilitary detention an alien lawfully residing inthis country.

In sum, al-Marri is not a subject of a countrywith which the United States is at war, he didnot illegally enter the United States, and he isnot alleged to have committed any other immi-gration violation. Rather, after lawfully enteringthe United States, al-Marri “developed substan-tial connections with this country,” Verdugo-Urquidez, 494 U.S. at 271, and so his status asan alien neither eliminates his due process rightsnor provides the President with extraordinary

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powers to subject al-Marri to seizure and indefi-nite detention by the military. The President’sconstitutional powers do not allow him to orderthe military to seize and detain indefinitely al-Marri without criminal process any more thanthey permit the President to order the military toseize and detain, without criminal process, otherterrorists within the United States, like theUnabomber or the perpetrators of the OklahomaCity bombing.

3.

In light of al-Marri’s due process rights underour Constitution and Congress’s express prohi-bition in the Patriot Act on the indefinite deten-tion of those civilians arrested as “terroristaliens” within this country, we can only concludethat, in the case at hand, the President claimspower that far exceeds that granted him by theConstitution.

We do not question the President’s wartimeauthority over enemy combatants, but absentsuspension of the writ of habeas corpus, the Con-stitution simply does not provide the Presidentthe power to exercise military authority overcivilians within the United States. See Toth, 350U.S. at 14 (“[A]ssertion of military authority overcivilians cannot rest on the President’s power ascommander-in-chief.”). The President cannoteliminate constitutional protections with thestroke of a pen by proclaiming a civilian, even acriminal civilian, an enemy combatant subject toindefinite military detention. Put simply, theConstitution does not empower the President to

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order the military to seize civilians residingwithin the United States and detain them indef-initely without criminal process, and this is soeven if he calls them “enemy combatants.”

A “well-established purpose of the Founders”was “to keep the military strictly within itsproper sphere, subordinate to civil authority.”Reid, 354 U.S. at 30. In the Declaration of Inde-pendence, our forefathers lodged the complaintthat the King of Great Britain had “affected torender the Military independent of and superiorto the Civil power” and objected that the Kinghad “depriv[ed] us in many cases, of the benefitsof Trial by Jury.” The Declaration of Indepen-dence paras. 14, 20 (U.S. 1776). Thus, a resoluteconviction that civilian authority should governthe military animated the framing of the Constitution. As Alexander Hamilton, no foe ofexecutive power, observed, the President’s Com-mander-in-Chief powers “amount to nothing morethan the supreme command and direction of themilitary and naval forces.” The Federalist No. 69,at 386 (Alexander Hamilton) (Clinton Rossitered., 1961). “That military powers of the Com-mander in Chief were not to supersede repre-sentative government of internal affairs seemsobvious from the Constitution and from elemen-tary American history.” Youngstown, 343 U.S. at644 (Jackson, J., concurring) (emphasis added).For this reason, in Youngstown, the SupremeCourt rejected the President’s claim to “inherentpower” to use the military even to seize propertywithin the United States, despite the Govern-ment’s argument that the refusal would “endan-

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ger the well-being and safety of the Nation.” Id.at 584 (majority opinion).

Of course, this does not mean that the Presi-dent lacks power to protect our national interestsand defend our people, only that in doing so hemust abide by the Constitution. We understandand do not in any way minimize the grave threatinternational terrorism poses to our country andour national security. But as Milligan teaches,“the government, within the Constitution, has allthe powers granted to it, which are necessary topreserve its existence.” 71 U.S. at 121. Thosewords resound as clearly in the twenty-first cen-tury as they did in the nineteenth.

Thus, the President plainly has plenaryauthority to deploy our military against terroristenemies overseas. See Curtiss-Wright, 299 U.S.at 319-20; see also Eisentrager, 339 U.S. at 789.Similarly, the Government remains free todefend our country against terrorist enemieswithin, using all the considerable powers “thewell-stocked statutory arsenal” of domestic lawaffords. Hamdi, 542 U.S. at 547 (Souter, J., con-curring in part, dissenting in part, and concur-ring in the judgment) (citing numerous federalstatutes criminalizing terrorist acts). Civilianlaw enforcement officers may always use deadlyforce whenever reasonable. See Scott v. Harris,127 S. Ct. 1769, 1776-78 (2007). Furthermore, inthe wake of September 11th, Congress has specif-ically authorized the President to deploy thearmed forces at home to protect the country inthe event of actual “terrorist attack[s] or inci-dent[s]” within the United States meeting certainconditions. See 10 U.S.C.A. § 333(a)(A) (West

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2007) (amending the Insurrection Act to providethe President with this authority, notwith-standing the Posse Comitatus Act, 18 U.S.C.§ 1385).

But in this nation, military control cannot sub-sume the constitutional rights of civilians.Rather, the Supreme Court has repeatedly cata-logued our country’s “deeply rooted and ancientopposition . . . to the extension of military controlover civilians.” Reid, 354 U.S. at 33; see alsoLaird v. Tatum, 408 U.S. 1, 15 (1972) (Burger,C.J.) (recognizing “a traditional and strong resis-tance of Americans to any military intrusion intocivilian affairs” that “has deep roots in our his-tory and found early expression . . . in the con-stitutional provisions for civilian control of themilitary”). The Court has specifically cautionedagainst “break[ing] faith with this Nation’s tra-dition”—“firmly embodied in the Constitution”—“of keeping military power subservient to civilianauthority.” Reid, 354 U.S. at 40. When the Courtwrote these words in 1957, it explained that“[t]he country ha[d] remained true to that faithfor almost one hundred seventy years.” Id.Another half century has passed, but the neces-sity of “remain[ing] true to that faith” remains asimportant today as it was at our founding. See id.

The President has cautioned us that “[t]he waron terror we fight today is a generational strug-gle that will continue long after you and I haveturned our duties over to others.” Pres. GeorgeW. Bush, State of the Union Address (Jan. 23,2007). Unlike detention for the duration of a tra-ditional armed conflict between nations, deten-tion for the length of a “war on terror” has no

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bounds. Justice O’Connor observed in Hamdithat “[i]f the practical circumstances of a givenconflict are entirely unlike those of the conflictsthat informed the development of the law ofwar,” the understanding that combatants can bedetained “for the duration of the relevant con-flict” “may unravel.” 542 U.S. at 521. If the indef-inite military detention of an actual combatant inthis new type of conflict might cause the threadof our understandings to “unravel,” the indefinitemilitary detention of a civilian like al-Marriwould shred those understandings apart.

In an address to Congress at the outset of theCivil War, President Lincoln defended his emer-gency suspension of the writ of habeas corpus toprotect Union troops moving to defend the Capi-tal. Lincoln famously asked: “[A]re all the laws,but one, to go unexecuted, and the governmentitself to go to pieces, lest that one be violated?”Abraham Lincoln, Message to Congress in Spe-cial Session (July 4, 1861), in Abraham Lincoln:Speeches and Writings 1859-1865 at 246, 254(Don E. Fehrenbacher ed., 1989). The authoritythe President seeks here turns Lincoln’s formu-lation on its head. For the President does notacknowledge that the extraordinary power heseeks would result in the suspension of even onelaw, and he does not contend that this powershould be limited to dire emergencies thatthreaten the nation. Rather, he maintains thatthe authority to order the military to seize anddetain certain civilians is an inherent power ofthe Presidency, which he and his successors mayexercise as they please.

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To sanction such presidential authority toorder the military to seize and indefinitely detaincivilians, even if the President calls them “enemycombatants,” would have disastrous conse-quences for the Constitution—and the country.For a court to uphold a claim to such extraordi-nary power would do more than render lifelessthe Suspension Clause, the Due Process Clause,and the rights to criminal process in the Fourth,Fifth, Sixth, and Eighth Amendments; it wouldeffectively undermine all of the freedoms guar-anteed by the Constitution. It is that power—were a court to recognize it—that could lead allour laws “to go unexecuted, and the governmentitself to go to pieces.” We refuse to recognize aclaim to power that would so alter the constitu-tional foundations of our Republic.

III.

Because we find that neither the AUMF northe President’s inherent authority permits themilitary to detain al-Marri indefinitely as anenemy combatant, we would not reach the ques-tion of whether the Government has afforded al-Marri sufficient process to challenge hisdesignation as an enemy combatant. We wouldsimply reverse the judgment of the district courtand remand the case with instructions to issue awrit of habeas corpus directing the Secretary ofDefense to release al-Marri from military custodywithin a reasonable period of time to be set bythe district court. Pursuant to this directive, theGovernment could transfer al-Marri to civilianauthorities to face criminal charges, initiate

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deportation proceedings against him, hold him asa material witness in connection with grand juryproceedings, or detain him for a limited time pur-suant to the Patriot Act, but military detention ofal-Marri would have to cease.

This disposition, however, does not command amajority of the en banc court. Accordingly, to givepractical effect to the conclusions of the majorityof the court who reject the Government’s posi-tion, we join in ordering remand on the termsclosest to those we would impose. See Hamdi, 542U.S. at 553 (Souter, J., concurring in part, dis-senting in part, and concurring in the judgment).We believe that it is unnecessary to litigatewhether al-Marri is an enemy combatant, butjoining in remand for the evidentiary proceedingsoutlined by Judge Traxler will at least place theburden on the Government to make an initialshowing that normal due process protections areunduly burdensome and that the Rapp declara-tion is “the most reliable available evidence,”supporting the Government’s allegations beforeit may order al-Marri’s military detention. Seepost at 94-95. Therefore, we concur in the percuriam opinion reversing and remanding for evi-dentiary proceedings to determine whether al-Marri actually is an enemy combatant subject tomilitary detention.

Judges Michael, King, and Gregory have autho-rized me to indicate that they join in this opin-ion.

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TRAXLER, Circuit Judge, concurring in the judg-ment:

Ali Saleh Kahlah al-Marri (“al-Marri”), a citi-zen of Qatar and alleged operative of the alQaeda terrorist network, was designated anenemy combatant by the President of the UnitedStates and is currently being detained at theNaval Consolidated Brig in Charleston, SouthCarolina. According to evidence submitted by thegovernment in support of al-Marri’s militarydetention, al-Marri received training and fundingfrom al Qaeda prior to the September 11 attacksperpetrated by that organization and enteredthis country as a “sleeper agent” charged withcarrying out additional terrorist activities on itsbehalf. Al-Marri now appeals the district court’sdecision dismissing his habeas petition, filedunder 28 U.S.C.A. § 2241, challenging the Pres-ident’s authority to designate him an enemy com-batant and militarily detain him as such. In thealternative, al-Marri challenges the process hehas been afforded by the district court to contestthe factual basis for his designation.

I agree with my colleagues who hold that theAuthorization for Use of Military Force(“AUMF”), Pub. L. No. 107-40, 115 Stat. 224(2001), enacted by Congress in the wake of the9/11 attacks, grants the President the power todetain enemy combatants in the war against alQaeda, including belligerents who enter ourcountry for the purpose of committing hostile andwar-like acts such as those carried out by the alQaeda operatives on 9/11. And, I agree that theallegations made by the government against al-Marri, if true, would place him within this cate-

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gory and permit the President to militarilydetain him.

However, I depart from my dissenting col-leagues on the issue of whether al-Marri hasbeen afforded a fair opportunity to challenge thefactual basis for his designation as an enemycombatant. Because the process afforded al-Marriby the district court to challenge the factualbasis for his designation as an enemy combatantdid not meet the minimal requirements of dueprocess guaranteed by the Fifth Amendment, Iwould reverse the district court’s dismissal of al-Marri’s habeas petition and remand for furtherevidentiary proceedings on the issue of whetheral-Marri is, in fact, an enemy combatant subjectto military detention.

I. Background

As is now tragically well-known, on September11, 2001, operatives of the al Qaeda terrorist net-work hijacked commercial airliners on the EastCoast and launched an attack upon the UnitedStates, successfully striking the World TradeCenter and the Pentagon, and crashing a thirdairliner, believed to have been bound for an addi-tional target in Washington, D.C., in Pennsyl-vania. Approximately 3,000 civilians were killedas a result of these war-like attacks.

One week after these devastating attacks,Congress passed the AUMF, providing that

the President is authorized to use all nec-essary and appropriate force againstthose nations, organizations, or persons

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he determines planned, authorized, com-mitted, or aided the terrorist attacks thatoccurred on September 11, 2001, or har-bored such organizations or persons, inorder to prevent any future acts of inter-national terrorism against the UnitedStates by such nations, organizations orpersons.

Id. (emphasis added). The preamble to the AUMFreferences the President’s “authority under theConstitution to take action to deter and preventacts of international terrorism against theUnited States,” points to the continued “unusualand extraordinary threat to the national securityand foreign policy of the United States” posed bythe forces responsible for the 9/11 attacks, anddeclares that it is “both necessary and appropri-ate that the United States exercise its rights toself-defense and to protect United States citizensboth at home and abroad.” Id. (emphasis added).

Having determined that the 9/11 attacks wereinflicted by operatives of al Qaeda who were sentto our country to attack us from within, and thatal Qaeda was heavily supported and harbored bythe Taliban government of Afghanistan, the Pres-ident responded militarily against both entitiesby ordering our armed forces to Afghanistan.

On September 10, 2001, the day before alQaeda’s devastating attack upon our homeland,al-Marri entered the United States from abroadwith his wife and children, ostensibly for the pur-pose of pursuing a degree at Bradley Universityin Peoria, Illinois. Two months later, FBI agentsarrested al-Marri as a material witness in theinvestigation of the 9/11 attacks. In the course of

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their investigation, the authorities discoveredthat al-Marri was rarely attending his universityclasses and was failing his courses. Additionalinvestigation resulted in al-Marri being chargedwith several federal criminal offenses.1 Al-Marripled not guilty and trial was set to begin in thedistrict court of Illinois on July 21, 2003.

On June 23, 2003, however, President GeorgeW. Bush declared that al-Marri “is, and at thetime he entered the United States in September2001 was, an enemy combatant.” J.A. 54. Accord-ing to the presidential declaration, “al-Marri isclosely associated with al Qaeda, an interna-tional terrorist organization with which theUnited States is at war” and “engaged in conductthat constituted hostile and war-like acts, includ-ing conduct in preparation for acts of interna-tional terrorism that had the aim to cause injuryto or adverse effects on the United States.” J.A.54. The President additionally declared that “al-Marri possesses intelligence, including intelli-

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1 The offenses consisted of one count of possession of15 or more unauthorized or counterfeit credit card numbers,with intent to defraud, in violation of 18 U.S.C.A.§ 1029(a)(3) (West 2000); two counts of making a false state-ment to the FBI, in violation of 18 U.S.C.A. § 1001(a)(2)(West 2000 & Supp. 2007); three counts of making a falsestatement in a bank application, in violation of 18 U.S.C.A.§ 1014 (West Supp. 2007); and one count of using a means ofidentification of another person for the purpose of influ-encing the action of a federally insured financial institution,in violation of 18 U.S.C.A. § 1028(a)(7) (West Supp. 2007).Al-Marri was initially charged with these offenses in twoindictments in the Southern District of New York, but theindictments were dismissed on venue grounds. Al-Marri wasthen returned to Peoria and re-indicted on the same sevencounts in the district court of Illinois.

gence about personnel and activities of al Qaedathat, if communicated to the [United States],would aid [United States’] efforts to preventattacks by al Qaeda on the United States or itsarmed forces, other governmental personnel, orcitizens,” and that he “represents a continuing,present, and grave danger to the national secu-rity of the United States.” J.A. 54. Accordingly,the President declared that the “detention [of al-Marri] is necessary to prevent him from aiding alQaeda in its efforts to attack the United Statesor its armed forces, other governmental person-nel, or citizens” and that “it is in the interest ofthe United States that the Secretary of Defensedetain [him] as an enemy combatant.” J.A. 54.

In the wake of this declaration, the governmentsuccessfully moved to dismiss the criminal indict-ment pending in the district court of Illinois,asserting national security interests requiredthat al-Marri be transferred from civilian to mil-itary custody.2 Al-Marri was transferred to thecustody of the Secretary of Defense and trans-ported to the Naval Consolidated Brig inCharleston, where he has remained in militarycustody as an enemy combatant.

On July 8, 2003, approximately two weeksafter al-Marri was transferred from civilian tomilitary custody, al-Marri’s legal counsel filed apetition for a writ of habeas corpus in the district

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2 Although the district court denied al-Marri’s motionfor a stay to prevent his transfer prior to filing a habeaspetition, the government agreed to inform counsel of al-Marri’s location and to provide the court and counsel withadvance notice of any plan to move al-Marri outside theUnited States.

court of Illinois challenging the President’s des-ignation and al-Marri’s continued detention bythe military. The petition was eventually dis-missed for lack of jurisdiction, see Al-Marri v.Rumsfeld, 360 F.3d 707 (7th Cir. 2004), but re-filed in the United States District Court for theDistrict of South Carolina.

In his petition, al-Marri claimed that his mili-tary detention was unlawful, that the govern-ment was required to charge him with a crime orrelease him, and that the government abridgedhis due process rights. Al-Marri asserted that asa civilian lawfully residing in the United States,he was unlawfully “detained by the militarywithout basis, without charge, without access tocounsel, and without being afforded any processby which he can challenge his detention or hisdesignation as an enemy combatant.” J.A. 21.3

Al-Marri also demanded that a hearing be sched-uled at which the government should be “com-pelled to present evidence establishing that

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3 Al-Marri’s petition initially set forth two additionalclaims, asserting that he was denied the right to counsel andunlawfully interrogated. When his petition was filed, al-Marri claimed that he was being held incommunicado at theNaval Brig, without access to his counsel, and that he hadbeen provided no opportunity to contest his designation asan enemy combatant. He was subsequently granted access tocounsel in October 2004. The district court ruled that al-Marri’s claims for deprivation of his right to counsel andunlawful interrogation were not cognizable in the habeasaction. Al-Marri is currently pursuing these claims in a sep-arate action, Al-Marri v. Rumsfeld, C.A. No. 2:05-cv-02259-HFF-RSC (filed Aug. 8, 2005), which is still pending beforethe district court. See Al-Marri v. Wright, 443 F. Supp. 2d774, 777 n.2 (D.S.C. 2006).

[al-Marri] is, in fact, an enemy combatant, and atwhich [al-Marri] is afforded an opportunity tochallenge such designation with the assistance ofcounsel.” J.A. 25.

The government thereafter filed its response toal-Marri’s petition, supported by a hearsay dec-laration of Jeffrey N. Rapp, identified as theDirector of the Joint Intelligence Task Force forCombating Terrorism (the “Rapp Declaration”).In this affidavit, Rapp professed to be “familiarwith the interviews of [al-Marri] conducted byagents of the Federal Bureau of Investigationand by personnel of the Department of Defense(DOD) once the DOD took custody of Al-Marri . . .after he was declared an enemy combatant by thePresident.” J.A. 213. The Rapp Declaration sum-marized the national intelligence and other fed-eral investigative information upon which thePresident rested his determination that al-Marriwas not simply a man bent on committing crimi-nal activities for personal reasons or gain, but anal-Qaeda operative or soldier dispatched to thiscountry to perpetrate or facilitate additional war-like attacks in the wake of the 9/11 attacks.According to the Rapp Declaration, “Al-Marri isan al Qaeda ‘sleeper’ agent sent to the UnitedStates for the purpose of engaging in and facili-tating terrorist activities subsequent to Septem-ber 11, 2001,” and “possesses information of highintelligence value, including information aboutpersonnel and activities of al Qaeda.” J.A. 216.Prior to his arrival in this country, he was“trained at Bin Laden’s Afghanistan terroristtraining camps” and, “[a]mong other things, . . .received training in the use of poisons at an al-

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Qaeda camp.” J.A. 217. He “met personally withUsama Bin Laden . . . and volunteered for a mar-tyr mission or to do anything else that al Qaedarequested.” J.A. 216. The Rapp Declarationasserted that al-Marri was assisted in his alQaeda assignment to the United States by knownal Qaeda members, including “[9/11] mastermindKhalid Shaykh Muhammed” and “al Qaedafinancier and [9/11] moneyman Mustafa AhmedAl-Hawsawi.” J.A. 216. He traveled to the UnitedStates with money provided for him by al Qaedafor the purpose of carrying out his assigned mis-sion.

In response, al-Marri asserted that, even if theallegations were true, the President lackedauthority to detain him as an enemy combatant.However, al-Marri also denied the factual alle-gations supporting his classification and assertedthat he was “entitled to a fair opportunity torebut the factual assertions on which his classi-fication as an ‘enemy combatant’ [was] based andto an evidentiary hearing conducted consistentwith the fundamental requirements of due pro-cess, including, most importantly, the right toconfront and cross-examine the witnesses againsthim.” J.A. 69. According to al-Marri, “[a]nythingless would make his right to due process illu-sory.” J.A. 69.

As discussed in more detail below, the districtcourt rejected al-Marri’s assertion that the Pres-ident lacked the authority to detain him as anenemy combatant, see Al-Marri v. Hanft, 378 F.Supp. 2d 673 (D.S.C. 2005), and, in a later deci-sion, dismissed al-Marri’s habeas petition basedupon its determination that he had failed to

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rebut the allegations upon which his designationrested, see Al-Marri v. Wright, 443 F. Supp. 2d774 (D.S.C. 2006). On appeal, al-Marri chal-lenges the district court’s determination that thePresident can detain him as an enemy combatantand, in the alternative, asserts that he was notafforded a meaningful opportunity to contest hisstatus. I address each issue in turn.

II. The Authority to Detain

I begin with the district court’s denial of al-Marri’s motion for summary judgment basedupon its determination that, assuming the alle-gation of the Rapp Declaration to be true, thePresident possessed legal authority under theAUMF to detain al-Marri as an enemy combatantin the war against al Qaeda even though al-Marrihad successfully crossed our borders and wasresiding within this country at the time of hisseizure. See Al-Marri, 378 F. Supp. 2d at 680. Al-Marri asserts that the President lacks legalauthority to designate and detain him as anenemy combatant because he was taken into cus-tody in the United States and, as a result,enjoyed “civilian” status and its accompanyingrights to full criminal process for his allegedwrongdoing. The government counters that boththe AUMF and the President’s inherent consti-tutional authority allowed for the detention.

A.

As pointed out by my colleagues, the Consti-tution generally affords all persons detained by

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the government the right to be charged and triedin a criminal proceeding for suspected wrongdo-ing, and it prohibits the government from sub-jecting individuals arrested inside the UnitedStates to military detention unless they fallwithin certain narrow exceptions. See UnitedStates v. Salerno, 481 U.S. 739, 755 (1987) (“Inour society liberty is the norm, and detentionprior to trial or without trial is the carefully lim-ited exception.”). The detention of enemy com-batants during military hostilities, however, issuch an exception. If properly designated anenemy combatant pursuant to legal authority ofthe President, such persons may be detainedwithout charge or criminal proceedings “for theduration of the relevant hostilities.” Hamdi v.Rumsfeld, 542 U.S. 507, 519-521 (2004).

The Supreme Court first considered thebreadth of the AUMF’s grant of such authority inHamdi, a case which originated from this circuit.Hamdi was captured by our allies in Afghanistanand turned over to our military personnel there.When it was discovered that he was a UnitedStates citizen by birth, Hamdi was transported tothe United States for continued detention here. Aplurality of the Court ruled that “individuals whofought against the United States in Afghanistanas part of the Taliban, an organization known tohave supported the al Qaeda terrorist networkresponsible for [the 9/11] attacks, are individualsCongress sought to target in passing the AUMF.”Id. at 518. Although the AUMF did not specifi-cally authorize such military detention, the plu-rality “conclude[d] that detention of individualsfalling into the limited category we are consid-

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ering, for the duration of the particular conflictin which they were captured, is so fundamentaland accepted an incident to war as to be an exer-cise of the ‘necessary and appropriate force’Congress has authorized the President to use.”Id.; see also id. at 519 (“Because detention to pre-vent a combatant’s return to the battlefield is afundamental incident of waging war, in permit-ting the use of ‘necessary and appropriate force,’Congress has clearly and unmistakably autho-rized detention in the narrow circumstances con-sidered here.”).

Because Hamdi was “part of or supportingforces hostile to the United States or coalitionpartners in Afghanistan and who engaged in anarmed conflict against the United States there,”id. at 516 (internal quotation marks omitted), theplurality concluded that, even though he was aUnited States citizen detained within this coun-try, he clearly fell within the legal category ofthose “enemy combatants” who may be detained.However, in the course of rejecting Hamdi’s claimthat his citizenship prohibited his detention asan enemy combatant, the plurality also recog-nized the Court’s precedent in Ex parte Quirin,317 U.S. 1 (1942), which “held that ‘[c]itizenswho associate themselves with the military armof the enemy government, and with its aid, guid-ance and direction enter this country bent onhostile acts are enemy belligerents within themeaning of . . . the law of war.’” Hamdi, 542 U.S.at 519 (quoting Quirin, 317 U.S. at 37-38).

This court also considered the scope of theAUMF in Padilla v. Hanft, 423 F.3d 386 (4th Cir.2005), albeit in a somewhat different context.

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There we held that the AUMF was broad enoughto authorize the military detention of JosePadilla, “a citizen of this country who is closelyassociated with al Qaeda, an entity with whichthe United States is at war; who took up arms onbehalf of that enemy and against our country ina foreign combat zone of that war; and whothereafter traveled to the United States for theavowed purpose of further prosecuting that waron American soil, against American citizens andtargets.” Id. at 389. In so holding, we also reliedupon the Supreme Court’s decision in Quirin,which dealt with “the military trial of Haupt, aUnited States citizen who entered th[is] countrywith orders from the Nazis to blow up domesticwar facilities but was captured before he couldexecute those orders.” Id. at 392. Noting that,“[l]ike Haupt, Padilla associated with the mili-tary arm of the enemy, and with its aid, guid-ance, and direction entered this country bent oncommitting hostile acts on American soil,” weheld that Padilla “falls within Quirin’s definitionof enemy belligerent, as well as within the defi-nition of the equivalent term [enemy combatant]accepted by the plurality in Hamdi.” Id. We con-cluded:

The Congress of the United States, in theAuthorization for Use of Military ForceJoint Resolution, provided the Presidentall powers necessary and appropriate toprotect American citizens from terroristacts by those who attacked the UnitedStates on September 11, 2001. As wouldbe expected, and as the Supreme Court

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has held, those powers include the powerto detain identified and committed ene-mies such as Padilla, who associatedwith al Qaeda and the Taliban regime,who took up arms against this Nation inits war against these enemies, and whoentered the United States for the avowedpurpose of further prosecuting that warby attacking American citizens and tar-gets on our own soil—a power withoutwhich, Congress understood, the Presi-dent could well be unable to protectAmerican citizens from the very kind ofsavage attack that occurred four yearsago almost to the day.

Id. at 397. Accordingly, we reversed the districtcourt’s determination that the detention ofPadilla by the President was without legal sup-port, necessitating additional proceedings below.4

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4 Shortly after our ruling in Padilla, the governmentfiled a motion for authorization to transfer Padilla from mil-itary custody to civilian custody and suggested that wewithdraw our prior opinion. We denied the motion and sug-gestion, noting “that the transfer of Padilla and the with-drawal of our opinion at the government’s request while theSupreme Court is reviewing this court’s decision . . . wouldcompound what is, in the absence of explanation, at least anappearance that the government may be attempting to avoidconsideration of our decision by the Supreme Court, and alsobecause we believe that this case presents an issue of suchespecial national importance as to warrant final consider-ation by that court, even if only by denial of further review.”Padilla v. Hanft, 432 F.3d 582, 583 (4th Cir. 2005). We,therefore, expressed the view that any decision to terminatethe litigation “should be made not by this court but, rather,by the Supreme Court.” Id. at 584. The Supreme Court sub-

B.

Like my colleagues, I agree that neither Hamdinor Padilla compels the conclusion that theAUMF authorized the President to detain al-Marri as an enemy combatant, although they doprovide guidance. I disagree, however, that ExParte Milligan, 71 U.S. (4 Wall.) 2 (1866), com-pels the opposite conclusion. Having carefullyconsidered these cases, as well as the SupremeCourt’s decision in Quirin, I am of the opinionthat the AUMF also grants the President theauthority to detain enemy combatants who asso-ciate themselves “with al Qaeda, an entity withwhich the United States is at war,” and “travel[ ]to the United States for the avowed purpose offurther prosecuting that war on American soil,against American citizens and targets,” eventhough the government cannot establish that thecombatant also “took up arms on behalf of thatenemy and against our country in a foreign com-bat zone of that war.” Padilla, 423 F.3d at 389(emphasis added).

1.

As accurately pointed out by my colleagues, thealleged enemy combatants in Hamdi and Padillawere affiliated with the military arm of an enemygovernment, specifically the Taliban governmentof Afghanistan. By virtue of the alleged combat-ant’s affiliation with the Taliban government,

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sequently granted the government’s motion to transfer. SeeHanft v. Padilla, 546 U.S. 1084 (2006).

neither court was required to decide whethertheir affiliation with al Qaeda and, in the case ofPadilla, the mission to carry out additional ter-rorist acts within this country, would also havesupported their detention as enemy combatants.

In my opinion, however, there is no doubt thatindividuals who are dispatched here by al Qaeda,the organization known to have carried out the9/11 attacks upon our country, as sleeper agentsand terrorist operatives charged with the task ofcommitting additional attacks upon our home-land “are [also] individuals Congress sought totarget in passing the AUMF.” Hamdi, 542 U.S. at518. Citing the right of the United States “to pro-tect United States citizens both at home andabroad,” the AUMF authorized the President’suse of “all necessary and appropriate forceagainst” the nations and organizations that“planned, authorized, committed, or aided” the9/11 attacks, “or harbored such organizations orpersons, in order to prevent any future acts ofinternational terrorism against the UnitedStates.” 115 Stat. 224. Clearly, Congress was notmerely authorizing military retaliation against areigning foreign government known to have sup-ported the enemy force that attacked us in ourhomeland, but was also authorizing militaryaction against al Qaeda operatives who, like the9/11 hijackers, were sent by the al Qaeda orga-nization to the United States to conduct addi-tional terror operations here.

As persuasively pointed out by the government,it was the 9/11 attacks which triggered the pas-sage of the AUMF. The al Qaeda operatives whosuccessfully carried out those attacks entered

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this country under false pretenses for the pur-pose of carrying out al Qaeda orders and, whilefinalizing the preparations for these attacks,maintained a facade of peaceful residence untilthe very moment they boarded the commercialairliners that they used as weapons. The hijack-ers never engaged in combat operations againstour forces on a foreign battlefield. Yet al-Marriwould have us rule that when Congress autho-rized the President to deal militarily with thoseresponsible for the 9/11 attacks upon our coun-try, it did not intend to authorize the Presidentto deal militarily with al Qaeda operatives iden-tically situated to the 9/11 hijackers. There isnothing in the language of the AUMF that sug-gests that Congress intended to limit the mili-tary response or the presidential authorization toacts occurring in foreign territories, and itstrains reason to believe that Congress, in enact-ing the AUMF in the wake of those attacks, didnot intend for it to encompass al Qaeda operatives standing in the exact position as theattackers who brought about its enactment. Fur-thermore, Congress has not revised or revokedthe AUMF since its enactment or since theSupreme Court decided Hamdi.

I am also unpersuaded by the claim thatbecause al Qaeda itself is an international ter-rorist organization instead of a “nation state” or“enemy government,” the AUMF cannot apply,consistent with the laws of war and our constitu-tional guarantees, to such persons. The premise ofthat claim seems to be that because al Qaeda isnot technically in control of an enemy nation or itsgovernment, it cannot be considered as anything

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other than a criminal organization whose mem-bers are entitled to all the protections and proce-dures granted by our constitution. I disagree.

In my view, al Qaeda is much more and muchworse than a criminal organization. And while itmay be an unconventional enemy force in a his-torical context, it is an enemy force nonetheless.The fact that it allied itself with an enemy gov-ernment of a foreign nation only underscores thispoint, rendering attempts to distinguish its sol-diers or operatives as something meaningfullydifferent from military soldiers in service to theTaliban government (or al Qaeda operatives suchas Hamdi and Padilla, who fought beside them)equally strained. The President attacked the Tal-iban in Afghanistan as retaliation for al Qaeda’sstrike upon our nation because al Qaeda was cen-tralized there and allied with the Taliban, and italso strains credulity to assert that while we arelegitimately at war with the Taliban government,we cannot be at war with al Qaeda.

In sum, the war that al Qaeda wages here andabroad against American interests may beviewed as unconventional, but it is a warnonetheless and one initially declared by ourenemy. See Hamdi v. Rumsfeld, 296 F.3d 278,283 (4th Cir. 2002) (noting that “[t]he uncon-ventional aspects of the present struggle do notmake its stakes any less grave”); Padilla, 423F.3d at 389 (noting that al Qaeda is “an entitywith which the United States is at war”). Themembers of this enemy force come from differentcountries and they are positioned globally. Theyfight us with conventional weapons inAfghanistan and Iraq, but they have also infil-

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trated our borders and those of our allies, benton committing, at a minimum, sabotage andother war-like acts targeting both military andcivilian installations and citizens. While they donot hail from a single nation state, they are notreally so dissimilar from the multi-nationalforces united against the United States and itsallies in the conventional wars that we are morecomfortable discussing. And when they cross ourborders with the intent to attack our countryfrom within on behalf of those forces, they arenot appreciably different from the soldiers inQuirin, who infiltrated our borders to commitacts of sabotage against our military installa-tions here—although as history and intelligenceinform us, al Qaeda soldiers target not only ourmilitary installations, but also the citizens of thiscountry. Nor does it matter that “they have notactually committed or attempted to commit anyact of depredation or entered the theatre or zoneof active military operations.” Quirin, 317 U. S.at 38. When they enter this country “with hostilepurpose,” they are enemy belligerents subject todetention. Id.

In my view, limiting the President’s authorityto militarily detain soldiers or saboteurs asenemy combatants to those who are part of a for-mal military arm of a foreign nation or enemygovernment is not compelled by the laws of war,and the AUMF plainly authorizes the Presidentto use all necessary and appropriate forceagainst al Qaeda. I believe this necessarilyincludes the detention of al Qaeda operativeswho associate with the enemy, be that the alQaeda organization or the Taliban government,

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“and with its aid, guidance and direction enterthis country bent on hostile acts.” Id. at 37-38.Accordingly, I find it unnecessary to reach thequestion of whether the President possessesinherent authority to detain al-Marri.

2.

If the allegations of the Rapp Declaration aretrue, I am also of the view that al-Marri wouldfall within the category of persons who may belawfully detained pursuant to the authoritygranted by the AUMF.

According to Rapp, al-Marri was not simply acivilian who lawfully entered the United Statesand was residing peacefully here while pursuinga higher educational goal. Nor, for that matter,was he a civilian who became sympathetic to al-Qaeda’s mission and sought to support it in indi-rect ways. And he was certainly not a commoncriminal bent on committing criminal acts forpersonal reasons or gain. On the contrary, theallegations are that al-Marri directly allied him-self with al Qaeda abroad, volunteered forassignments (including a martyr mission),received training and funding from al Qaedaabroad, was dispatched by al Qaeda to theUnited States as an al Qaeda operative withorders to serve as a sleeper agent, and wastasked with facilitating and ultimately commit-ting terrorist attacks against the United Stateswithin this country. Unlike the al Qaeda opera-tives who preceded him, al-Marri was unsuc-cessful in his mission. But with this exception—owing to the efforts of our federal authorities

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here—he would not be appreciably different fromeither the German soldier dispatched here toattack military installations in Quirin or the alQaeda operatives dispatched here to attack thiscountry on 9/11. As noted by the magistratejudge, “[a]ssuming . . . that all of the factsasserted by [the government] are true, [al-Marri]attended an al Qaeda terror training camp andlater, on September 10, 2001, entered this coun-try to continue the battle that the September11th hijackers began on American soil.” J.A. 123.

For these reasons, I agree that, assuming theallegations of the Rapp Declaration to be true, al-Marri would fall within the definition of anenemy combatant and that his military detentionwould be authorized pursuant to the AUMF.

III. Due Process

While I agree with my colleagues who wouldhold that the President has the legal authorityunder the AUMF to detain al-Marri as an enemycombatant for the duration of the hostilities, wepart company on the issue of whether the processafforded al-Marri to challenge his detention wassufficient to meet the minimum requirements ofdue process of law. In my opinion, due processdemands more procedural safeguards than thoseprovided to al-Marri in the habeas proceedingsbelow.

A.

Consideration of “the question of what processis constitutionally due to a [person] who disputes

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his enemy-combatant status” begins with con-sideration of the Supreme Court’s decision inHamdi, which addressed not only the legalauthority of the President to detain enemy com-batants but also the process due to those so des-ignated. Hamdi, 542 U.S. at 524.

Hamdi was captured on the battlefield inAfghanistan by our allies, transferred into ourmilitary custody, and then transported to theUnited States, where a habeas petition was filedon his behalf. In support of Hamdi’s designationas an enemy combatant, the government filed thehearsay declaration of Michael Mobbs, SpecialAdvisor to the Under Secretary of Defense forPolicy, summarizing the factual basis forHamdi’s detention. The government argued that“ ‘[r]espect for separation of powers and the lim-ited institutional capabilities of courts in mattersof military decision-making in connection with anongoing conflict’ ought to eliminate entirely anyindividual process, restricting the courts toinvestigating only whether legal authorizationexists for the broader detention scheme,” or “[a]tmost,” review “under a very deferential ‘some evi-dence’ standard,” which the government assertedthe Mobbs Declaration met. Id. at 527. The dis-trict court disagreed, imposing procedural safe-guards and discovery burdens “approach[ing] theprocess that accompanies a criminal trial.” Id. at528. The plurality of the Court, however, dis-agreed with both positions, noting that due pro-cess and normal habeas procedures demand morethan the government sought to give, but also rec-ognized that the exigencies and burdens of mili-tary warfare may necessitate a modification of

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the procedures and evidentiary showings nor-mally demanded by our habeas jurisprudence.

As noted by the Hamdi plurality at the outset,“§ 2241 and its companion provisions provide atleast a skeletal outline of the procedures to beafforded a petitioner in federal habeas review.”Id. at 525. Once the petition is filed by or onbehalf of the detainee setting forth “the facts con-cerning the applicant’s . . . detention,” 28U.S.C.A. § 2242, the habeas court “direct[s] therespondent to show cause why the writ shouldnot be granted,” 28 U.S.C.A. § 2243, which placesthe burden upon “[t]he person to whom the writor order is directed [to] make a return certifyingthe true cause of the detention,” id. Section “2243provides that ‘the person detained may, underoath, deny any of the facts set forth in the returnor allege any other material facts,’ and § 2246allows the taking of evidence in habeas proceed-ings by deposition, affidavit, or interrogatories.”Hamdi, 542 U.S. at 525. However, while“Congress envisioned that habeas petitionerswould have some opportunity to present andrebut facts[,] . . . courts in cases like this retainsome ability to vary the ways in which they do soas mandated by due process.” Id. at 526.

In determining what process would be appro-priate in light of the facts at hand, the Hamdiplurality recognized the fundamental “tensionthat often exists between the autonomy that the[g]overnment asserts is necessary in order topursue effectively a particular goal and the pro-cess that a citizen contends he is due before he isdeprived of a constitutional right.” Id. at 528.The individual’s interest, of course, is “the most

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elemental of liberty interests—the interest inbeing free from physical detention.” Id. at 529.The government’s interests, however, are equallycompelling—the interest “in detaining those whoactually pose an immediate threat to the nationalsecurity of the United States during ongoinginternational conflict,” id. at 530, and the inter-est in “ensuring that those who have in factfought with the enemy during a war do notreturn to battle against the United States,” id. at531. Arriving at the procedures necessary toensure that a person, even an enemy combatant,is not deprived of his liberty without due processof law, the plurality noted, requires a balancingof these “serious competing interests.” Id. at 529.To balance those competing interests, the plu-rality turned to the test articulated by the Courtin Mathews v. Eldridge, 424 U.S. 319 (1976),which

dictates that the process due in any giveninstance is determined by weighing “theprivate interest that will be affected bythe official action” against the [g]overn-ment’s asserted interest, “including thefunction involved” and the burdens the[g]overnment would face in providinggreater process. The Mathews calculusthen contemplates a judicious balancingof these concerns, through an analysis of“the risk of an erroneous deprivation” ofthe private interest if the process werereduced and the “probable value, if any,of additional or substitute proceduralsafeguards.”

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Hamdi, 542 U.S. at 529 (internal citations omit-ted) (emphasis added) (quoting Mathews, 424U.S. at 335).

Applying the Mathews test to the situation athand, the plurality ultimately rejected both the“some evidence” standard proposed by the gov-ernment and the criminal-like process suggestedby the district court, ruling that:

neither the process proposed by the[g]overnment nor the process apparentlyenvisioned by the District Court belowstrikes the proper constitutional balancewhen a United States citizen is detainedin the United States as an enemy com-batant. That is, “the risk of an erroneousdeprivation” of a detainee’s liberty inter-est is unacceptably high under the[g]overnment’s proposed rule, while someof the “additional or substitute procedu-ral safeguards” suggested by the DistrictCourt are unwarranted in light of theirlimited “probative value” and the bur-dens they may impose on the military insuch cases.

Hamdi, 542 U.S. at 532-33 (quoting Mathews,424 U.S. at 335). However, while the pluralityrejected the notion that a criminal-like processwas mandated, it concluded that, at a minimum,a “citizen-detainee seeking to challenge his clas-sification as an enemy combatant must receivenotice of the factual basis for his classification,and a fair opportunity to rebut the [g]overn-ment’s factual assertions before a neutral deci-sionmaker.” Hamdi, 542 U.S. at 533. “[T]he full

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protections that accompany challenges to deten-tions in other settings may prove unworkable andinappropriate in the enemy-combatant setting,”the plurality recognized, but “the threats to mil-itary operations posed by a basic system of inde-pendent review are not so weighty as to trump acitizen’s core rights to challenge meaningfullythe [g]overnment’s case and to be heard by animpartial adjudicator.” Id. at 535 (emphasisadded).5

Because Hamdi was a battlefield detainee cap-tured in a foreign nation, the core of the govern-ment’s argument was that the need for lessenedprocess was “heightened by the practical diffi-culties that would accompany a system of trial-like process.” Id. at 531. Specifically, thegovernment argued that “military officers whoare engaged in the serious work of waging battlewould be unnecessarily and dangerously dis-tracted by litigation half a world away, and dis-covery into military operations would bothintrude on the sensitive secrets of national

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5 In a partially concurring opinion, Justice Souter andJustice Ginsberg joined with the plurality in orderingremand to “allow Hamdi to offer evidence that he is not anenemy combatant.” Hamdi, 542 U.S. at 553 (Souter, con-curring in part). Although they declined to adopt the plu-rality’s precise resolution of the due process issue, theconcurring justices indicated that they would not “disagreewith the plurality’s determinations (given the plurality’sview of the [AUMF]) that someone in Hamdi’s position isentitled at a minimum to notice of the [g]overnment’sclaimed factual basis for holding him, and to a fair chance torebut it before a neutral decisionmaker.” Id.

defense and result in a futile search for evidenceburied under the rubble of war.” Id. at 531-32.

As dictated by Mathews, the plurality tookaccount of these military burdens in weighing theinterests at stake, and recognized that, when bal-ancing the competing interests, these burdensmight indeed demand a lessening of the normalprocess due:

[T]he exigencies of the circumstances maydemand that, aside from these core ele-ments [of notice and an opportunity to beheard], enemy-combatant proceedingsmay be tailored to alleviate their uncom-mon potential to burden the Executive ata time of ongoing military conflict.Hearsay, for example, may need to beaccepted as the most reliable availableevidence from the [g]overnment in such aproceeding. Likewise, the Constitutionwould not be offended by a presumptionin favor of the [g]overnment’s evidence, solong as that presumption remained arebuttable one and fair opportunity forrebuttal were provided. Thus, once the[g]overnment puts forth credible evidencethat the habeas petitioner meets theenemy-combatant criteria, the onus couldshift to the petitioner to rebut that evi-dence with more persuasive evidencethat he falls outside the criteria. A bur-den-shifting scheme of this sort wouldmeet the goal of ensuring that the erranttourist, embedded journalist, or local aidworker has a chance to prove military

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error while giving due regard to theExecutive once it has put forth mean-ingful support for its conclusion that thedetainee is in fact an enemy combatant.In the words of Mathews, process of thissort would sufficiently address the “riskof an erroneous deprivation” of adetainee’s liberty interest while elimi-nating certain procedures that havequestionable additional value in light ofthe burden on the [g]overnment.

Hamdi, 542 U.S. at 533-34 (emphasis added).6

In sum, Hamdi’s relaxed evidentiary standardof accepting hearsay evidence and presumptionin favor of the government arose from the plu-rality’s recognition that the process warranted inenemy-combatant proceedings may be lessened ifthe practical obstacles the Executive would con-front in providing the procedural protections nor-mally due warrant such a modification.7

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6 In August 2004, following the Supreme Court’s Junedecision in Hamdi, we remanded the case to the EasternDistrict of Virginia for further proceedings consistent withthe Supreme Court’s decision. By October 2004, the partieshad settled the matter. Hamdi was transported to SaudiArabia, released from United States custody, and his peti-tion dismissed with prejudice as settled, with no further con-sideration of the issue of what process was due Hamdi onremand.

7 The Supreme Court’s recent decision in Boumedienev. Bush, 553 U.S. ___, No. 06-1195 (June 12, 2008), I believe,confirms this approach to the question of whether and howthe normal process due may be lessened in enemy-combat-ant proceedings. There, the Court reiterated the “uncon-troversial” principles that “the privilege of habeas corpus

B.

With these concepts in mind, I turn to thehabeas proceeding conducted by the district courtin al-Marri’s case, and the question of whetherthe process accorded him after his motion forsummary judgment was denied was constitu-tionally sufficient.

Although the district court rejected al-Marri’sclaim that as a matter of law he could not bedetained as an enemy combatant, the districtcourt properly recognized that al-Marri (likeHamdi) retained the constitutional right to chal-lenge the allegations supporting his detention ata hearing satisfying the requirements of due pro-cess. Thus, the district court referred the case toa magistrate judge for a determination of what

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entitles the prisoner to a meaningful opportunity to demon-strate that he is being held pursuant to ‘the erroneous appli-cation or interpretation’ of relevant law” and that “thehabeas court must have the power to order the conditionalrelease of an individual unlawfully detained.” Id. at ___, slipop. at 50. But, the Court went on to recognize that these areonly “the easily identified attributes of any constitutionallyadequate habeas corpus proceeding. . . . [D]epending on thecircumstances, more may be required.” Id. As noted by theCourt, “common-law habeas corpus was, above all, an adapt-able remedy. Its precise application and scope changeddepending upon the circumstances.” Id. (emphasis added);see also id. at ___, slip op. at 8-9 (Roberts, C.J., dissenting)(“Because the central purpose of habeas corpus is to test thelegality of executive detention, the writ requires most fun-damentally an Article III court able to hear the prisoner’sclaims and, when necessary, order release. Beyond that, theprocess a given prisoner is entitled to receive depends on thecircumstances and the rights of the prisoner.” (citation omit-ted) (emphasis added)).

process al-Marri was entitled to in his efforts tochallenge his designation.

During a status conference held before themagistrate judge, al-Marri sought full discoveryfrom the government, arguing that such discov-ery was appropriate because many of the factorsweighing against expansive discovery that wereappropriate in Hamdi would not apply to himbecause Hamdi had been seized by military offi-cers in a combat setting.8 Unlike in Hamdi, al-Marri argued, the discovery he sought would beprimarily, if not entirely, from civilian agenciesand therefore would not interfere with the warpowers or operations of the government. Al-Marrithus argued that the discovery he sought wouldbe more akin to information obtained in a stan-dard criminal investigation.

The magistrate judge, however, denied al-Marri’s attempts to obtain evidence under § 2246,rejected al-Marri’s attempts to distinguishHamdi, and ruled that Hamdi ’s relaxed eviden-tiary standard and presumption in favor of the

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8 Specifically, al-Marri sought all statements made byal-Marri; all documents relied upon by Rapp or describingthe sources of information referenced in the Rapp Declara-tion; all documents upon which the government intended torely; all documents upon which the CIA, Department of Jus-tice, Department of Defense, and the President relied indetermining whether al-Marri was an enemy combatant; alldocuments describing the standard for the designation; andany exculpatory evidence. The request, therefore, includedall documents pertaining to interrogations and interviewsconducted by United States officials or others acting on theirbehalf. In addition, al-Marri sought to depose the sourcesreferenced in or relied upon by Rapp in his declaration,including the high-level officials in the Executive Branch.

government were equally and automaticallyappropriate for al-Marri’s enemy-combatant pro-ceeding. Thus, the magistrate judge concludedthat the Rapp Declaration was sufficient by itselfto provide al-Marri with notice of the factualbasis for his designation as an enemy combatantand to meet the government’s initial burden toset forth credible evidence that he met theenemy-combatant criteria. The magistrate judgeaccorded al-Marri sixty days to file factual evi-dence to rebut the Rapp Declaration by “morepersuasive evidence.”9 If al-Marri was “unable toproduce more persuasive evidence than that pro-duced by the government,” i.e., the Rapp Decla-ration, “the inquiry [would] end there.” J.A. 183.But if al-Marri proved by more persuasive evi-dence that he was not an enemy combatant, hewould not necessarily receive relief. If the gov-ernment so desired, the magistrate judge wouldgive the government another chance and proceedto a “full-blown adversary hearing” with the gov-ernment having the burden to show “by clear andconvincing evidence that the petitioner repre-sents a continuing, present and grave danger tothe national security of the United States andwhose detention is necessary to prevent him fromaiding al Qaeda in its efforts to attack the UnitedStates.” J.A. 183.

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9 The Hamdi framework requires the individual tomeet the government’s evidence with proof that is “morepersuasive,” and this is what the magistrate judge explicitlyrequired of al-Marri. Thus, there is no basis for the argu-ment that al-Marri needed only to come forward with “someevidence” to contradict the Rapp Declaration.

Al-Marri thereafter filed a response generallydenying the government’s allegations. However,al-Marri asserted that the magistrate judge haderred in relieving the government of its consti-tutional and legal burden of coming forward withsufficient admissible evidence establishing thatal-Marri was, in fact, an enemy combatant. Al-Marri thus “decline[d] at th[at] time the Court’sinvitation to assume the burden of proving hisown innocence,” which he deemed to be an“unconstitutional, unlawful and un-American”burden. J.A. 243 (internal quotation marks omit-ted).10 The magistrate judge then issued a reportand recommendation that the habeas petition bedismissed based upon al-Marri’s failure to rebutthe Rapp Declaration. Because al-Marri “pre-sent[ed] nothing but a general denial to the Exec-utive’s assertion of facts,” J.A. 243, themagistrate judge concluded, al-Marri had“refused to participate in a meaningful way,” J.A.244, thus “squander[ing] his opportunity to beheard.” J.A. 248.

Over al-Marri’s objections, the district courtadopted the report and recommendation and dis-missed the petition. Although recognizing thelack of any “binding standard for reviewing thefactual basis supporting the detention of analleged enemy combatant” and the “little guid-

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10 Al-Marri also complained that large portions of theRapp Declaration deemed classified were not shared withhim or his counsel, severely hampering his ability to refutethe allegations against him. After the district court advisedthe parties that it would not consider information not pre-sented to al-Marri, the government filed an updated, declas-sified version of the Rapp Declaration.

ance” provided by the Supreme Court in Hamdi,the district court concluded that the frameworkdiscussed by the Hamdi plurality should beapplied to al-Marri’s situation. Al-Marri, 443 F.Supp. 2d at 778. The district court found uncon-vincing al-Marri’s contention that “Hamdi doesnot apply here because the ‘constitutional bal-ance’ it struck is limited to cases where thealleged enemy combatant is captured on a foreignbattlefield.” Id. In the district court’s view,Hamdi was “not tethered to the facts surround-ing [Hamdi’s] apprehension and detention,” and“the Supreme Court intended the due processstructure it announced in Hamdi to apply to anychallenge to detention mounted by an allegedenemy combatant.” Id. at 779. “As Hamdi hasbeen interpreted as supporting the authority ofthe President to designate Padilla and al-Marrias enemy combatants and to order their deten-tion,” the district court noted, “it makes littlesense to cast aside the framework it announcedfor analyzing the factual evidence supportingthat detention. The Court concludes, then, thatthe due process requirements outlined in Hamdiapply here.” Id. at 780 (internal citations omit-ted). The district court therefore held that thehearsay declaration of Rapp was sufficient to sat-isfy the government’s initial burden of providingal-Marri notice of the factual allegations sup-porting his designation and that al-Marri had noright to cross-examination or discovery in makinghis initial response.

Turning to the adequacy of al-Marri’s responseitself, the district court agreed that al-Marri hadabandoned his opportunity to respond, “ren-

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der[ing] the [g]overnment’s assertions uncon-tested” and placing al-Marri “in an untenableposition.” Id. at 785. Al-Marri’s “failure to offerany evidence on his behalf” necessarily resultedin his failure “to present ‘more persuasive evi-dence’ to rebut” the Rapp Declaration. Id.“[U]nder Hamdi’s outline of the procedures appli-cable in enemy combatant proceedings,” the dis-trict court concluded that it “need go no further”and dismissed the petition. Id. According to thedistrict court, al-Marri “received notice of thefactual basis supporting his detention” and was“afforded a meaningful opportunity to rebut thatevidence.” Id. I respectfully disagree.

C.

The dispute in this appeal is relativelystraight-forward, although its resolution is not.Al-Marri contends that he stands in a differentposture from Hamdi and that due processdemands more rigorous procedural safeguardsthan those provided by the district court hereand by the plurality in Hamdi. The governmentcounters that the Hamdi plurality’s frameworkprovided al-Marri all the process he was due,asserting (1) that the Hamdi framework for pro-viding process to a citizen enemy combatant cap-tured on a foreign battlefield is, a fortiori,constitutionally sufficient for an alien enemycombatant seized in the United States; and (2)that al-Marri failed to take advantage of the pro-cess he was provided, making his claim for addi-tional process unpersuasive.

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Having carefully considered the plurality’sguidance in Hamdi and the precedents uponwhich it relies, I am of the opinion that the dis-trict court erred in categorically applying theframework discussed by the Hamdi plurality toal-Marri’s situation and accepting the Rapp Dec-laration as sufficient to shift the burden of per-suasion to al-Marri without considering thespecific circumstances before it. As was the casein Hamdi, “the full protections that accompanychallenges to detentions in other settings [might]prove unworkable and inappropriate in [al-Marri’s] enemy-combatant [proceeding].” Hamdi,542 U.S. at 535. But that remains to be seenbecause, in my opinion, the district court erred inthe initial step of accepting the hearsay affidavitof Rapp “as the most reliable available evidencefrom the [g]overnment,” id. at 534, without anyinquiry into whether the provision of nonhearsayevidence would unduly burden the government,and erred in failing to then weigh the competinginterests of the litigants in light of the factualallegations and burdens placed before it for con-sideration.11

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11 I find no guidance from Padilla on this particularquestion. Like Hamdi, Padilla “associated with forces hostileto the United States in Afghanistan and took up armsagainst the United States forces in that country in our waragainst al Qaeda.” Padilla, 423 F.3d at 388. And like al-Marri, Padilla was then “recruited, trained, funded, andequipped by al Qaeda leaders to continue prosecution of thewar in the United States” through additional terrorist activ-ities here, but was apprehended in this country before hecould complete his mission. Id. Although we held in Padillathat the place of capture did not affect the President’s powerto detain Padilla, neither this court nor the Supreme Court

1.

I begin with a general observation of thebreadth of the ruling below. The district courtconcluded that the Hamdi decision was not lim-ited to the facts surrounding Hamdi’s apprehen-sion and that the Supreme Court intended itsframework to apply to every habeas petition filedby an alleged enemy combatant. On this broadpoint, I have no particular quarrel. However,from this premise, the district court also ruledthat the Rapp Declaration, like the Mobbs Dec-laration in Hamdi, was sufficient to satisfy thegovernment’s initial step in the burden-shiftingscheme, without requiring any showing by thegovernment that the circumstances demandedthat the proceedings should be “tailored to alle-viate their uncommon potential to burden theExecutive” or that the hearsay affidavit of Rappwas “the most reliable available evidence fromthe [g]overnment” because the presentation ofmore reliable evidence would unduly burden thegovernment or otherwise interfere with the mil-itary or other national security efforts of theExecutive. Id. at 534.

In my opinion, the Hamdi plurality neithersaid nor implied that normal procedures and evi-dentiary demands would be lessened in everyenemy-combatant habeas case, regardless of thecircumstances. And I cannot endorse such a view,which would allow the government to seize andmilitarily detain any person (including Americancitizens within this country) and support such

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has held that the place of capture does not affect the mini-mum constitutional process due.

military detention solely with a hearsay decla-ration of a government official who has no first-hand information about the detainee—regardlessof whether more reliable evidence is readilyavailable or whether the presentation of suchevidence would impose any burden upon the gov-ernment or interfere at all with its war ornational security efforts.12

Although I do not rule out the possibility thathearsay evidence might ultimately prove to bethe most reliable available evidence from thegovernment in this case, Hamdi does not supportsuch a categorical relaxation of the protectionsdue persons who are detained within our borders.As noted earlier, the Hamdi plurality balancedthe competing interest of the detainee in beingfree from governmental detention against theinterest of the government in detaining thosewho pose a threat to national security and con-cluded that “the full protections that accompanychallenges to detentions in other settings mayprove unworkable and inappropriate in theenemy-combatant setting.” Id. at 535 (emphasisadded). The Hamdi plurality’s acceptance ofhearsay evidence from the government in suchsettings, however, clearly arose from the context

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12 Once such evidence (which might also enjoy a favor-able presumption) is presented, the burden will shift to thedetainee to rebut the showing with evidence that is “morepersuasive” than that of the government. See Hamdi, 542U.S. at 534. A detainee’s general denial of the hearsay alle-gations will be insufficient. Rather, he will be required torefute the fact-specific allegations made against him by pre-senting “more persuasive evidence that he falls outside thecriteria.” Id.

of a battlefield detainee, the “exigencies of [such]circumstances,” and the “uncommon potential toburden the Executive at a time of ongoing mili-tary conflict.” Id. at 533. The relaxed evidentiarystandard was accepted in the balance as appro-priate in light of the facts of that case—a personinitially detained abroad by our allies on a bat-tlefield in Afghanistan. The plurality rejected anoutright disapproval of such hearsay declara-tions, and described lesser procedures it believedmight be sufficient to satisfy the due processrights of such detainees, noting that the normalevidentiary requirements might need to berelaxed to account for the governmental interestin military matters. See id. at 533-34 (explainingthat hearsay “may need to be accepted as themost reliable available evidence from the[g]overnment” and “a presumption in favor of the[g]overnment’s evidence” would not “offend[ ]” theConstitution in battlefield detainee proceedings).But while the plurality refused to categoricallyprohibit hearsay declarations, neither did it cat-egorically approve the use of such hearsay dec-larations in all enemy-combatant proceedings.13

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13 Thus, I do not believe Hamdi recognized that thegovernment’s burden in enemy-combatant proceedings couldalways be satisfied by a knowledgeable affiant who sum-marizes the evidence on which the detention was based.That is not what Hamdi said at all. Instead, the pluralitymerely noted that, in the context of the case before it, theGovernment had made it clear “that documentation regard-ing battlefield detainees already is kept in the ordinary courtof military affairs” and that “[a]ny factfinding impositioncreated by requiring a knowledgeable affiant to summarizethese records to an independent tribunal is a minimal one.”Hamdi, 542 U.S. at 534 (emphasis added). For this reason,

Hearsay declarations may be accepted upon aweighing of the burdens in time of warfare of“providing greater process” against the detainee’sliberty interests. Id. at 529. But to decidewhether a hearsay declaration is acceptable, thecourt must first take into account “the risk oferroneous deprivation” of the detainee’s libertyinterest, “the probable value, if any, of any addi-tional or substitute procedural safeguards,” andthe availability of additional or substitute evi-dence which might serve the interests of both lit-igants. Id. (internal quotation marks omitted).

In sum, I disagree that the plurality in Hamdiendorsed a categorical acceptance of suchhearsay declarations for all alleged enemy com-batants regardless of the place of seizure or theother circumstances at hand. In my view, the bal-ancing test set forth in Mathews, and discussedin the context of enemy-combatant proceedings inHamdi, presumes that the process due adetainee, including enemy combatants, willindeed vary with the facts surrounding thedetention and the precise governmental burdensthat would result from providing the normal pro-cedures due under our constitution. See Mathews,424 U.S. at 334 (“[D]ue process, unlike somelegal rules, is not a technical conception with afixed content unrelated to time, place and cir-cumstances. Due process is flexible and calls for

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the Hamdi plurality was unpersuaded by the government’sclaim that “this basic process [would] have [a] dire impacton the central functions of warmaking.” Id. I cannot readthis language divorced from the context in which it waswritten and would demand no more than the same bene-fits/burdens analysis given to Hamdi.

such procedural protections as the particular sit-uation demands” (internal quotation marks andalteration omitted)); Hamdi, 542 U.S. at 526(noting that courts in habeas cases “retain someability to vary the ways in which” enemy com-batants may present and rebut facts “as man-dated by due process”). This balancing willrequire flexibility on the part of the habeas courtin order to deal with the wide variety of situa-tions involved in each individual case and is anecessary component of the Hamdi framework.Thus, on remand, the locus of al-Marri’s seizurewill not forbid his classification as an enemycombatant subject to military detention or fore-close the district court from lessening the normalprocedures where appropriate in the balance ofthe competing interests, but it is not irrelevantto the task of weighing the interests at stake andbalancing the risks involved to determine whatdue process protections are due him in his questto challenge his designation and continued deten-tion by our military. See Mathews, 424 U.S. at334 (“[R]esolution of the issue of whether [the]procedures provided . . . are constitutionally suf-ficient requires analysis of the governmental andprivate interests that are affected.”).14

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14 Thus, the locus of capture is not an artificial or cat-egorical distinction, nor is it the lynchpin of my view. I havemade it clear that I do not rule out the possibility that theRapp Declaration might be acceptable, although al-Marri isentitled to have the basis for such acceptance explained toan Article III court before he is deprived of his liberty inter-est in being free from physical detention. Actually, I proposethat al-Marri receive exactly what the Hamdi plurality gaveto Hamdi—a directive that the district court weigh his

2.

In this case al-Marri’s “private interestaffected by the official action” is the same as thatof Hamdi, i.e., the liberty interest in being freefrom unlawful seizure and detention. Hamdi, 542U.S. at 529 (internal quotation marks and ellip-sis omitted). The risk of an erroneous deprivationof al-Marri’s liberty interest, however, is notidentical to the risk that was present in Hamdi.Al-Marri was not captured on the battlefields ofAfghanistan or Iraq, nor even apprehended in aneighboring country where al Qaeda trains itssoldiers. He was arrested by civilian federalauthorities while residing in Illinois. I amacutely aware of the dangers of detention andimprisonment without compliance with criminalprocess safeguards, dangers that are evengreater when the military detains persons insidethe borders of the United States. In my view, therisk of erroneously detaining a civilian or citizenin this country as an enemy combatant is muchgreater inside the United States than in the verydifferent context addressed by the SupremeCourt in Hamdi, i.e., a conventional battlefield

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rights against the actual governmental burdens to deter-mine whether a lessening of the normal procedures is war-ranted. For the reasons discussed by the Hamdi plurality,the locus of capture affects the question of whether weshould accept less reliable evidence, such as a hearsay affi-davit, than we normally would in habeas cases. But this isbecause capture in a war zone almost certainly will increasethe burden placed upon the Executive by requiring produc-tion of direct or first-hand evidence supporting the desig-nation. It is not simply because the detainee was abroadwhen seized.

within the borders of a foreign country in whichwe are fighting our enemies.

On the other hand, we must consider the gov-ernment’s interest “in detaining those who actu-ally pose an immediate threat to the nationalsecurity of the United States during ongoinginternational conflict,” Hamdi, 542 U.S. at 530,and in “ensuring that those who have in factfought with the enemy during a war do notreturn to battle against the United States,” id. at531, as well as “the burdens the [g]overnmentwould face in providing greater process,” id. at529.

Here, the government asserts that the RappDeclaration, which summarizes the intelligencegathered on al-Marri’s activities as an al-Qaedaoperative, is sufficient to meet its initial burdenof proving that al-Marri was properly designatedan enemy combatant. However, unlike in Hamdi,the government has presented only the RappDeclaration. It has made no attempt to show thatthis hearsay evidence “need[s] to be accepted asthe most reliable available evidence from the[g]overnment,” id. at 533-34, or that additionalprotections to ensure that the innocent are notdetained by our military would be “unworkableand inappropriate in th[is] enemy-combatant set-ting,” id. at 535. Nor has there been any consid-eration of the “probable value, if any, ofadditional or substitute procedural safeguards”or the availability of more reliable evidence thatmight be presented by substitute methods whichaccount for the government’s weighty interests.Id. at 529 (internal quotation marks omitted).

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As previously noted, al-Marri argued belowthat he believed the discovery sought would beprimarily from civilian agencies that could pro-duce it without interfering with the war powersand war operations of this government.15 At aminimum, I believe the government should berequired to demonstrate to the district court whythis is not the case and why, in balancing the lib-erty interest of the detainee and the heightenedrisk of erroneous deprivation, the Rapp Decla-ration should be accepted as the most reliableavailable evidence the government can producewithout undue burden or serious jeopardy toeither its war efforts or its efforts to ensure thenational security of this nation.

3.

In this context, the Constitution prohibits sub-jecting an individual inside the United States tomilitary detention unless he fits within the legalcategory of an enemy combatant in the armed

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15 For example, it seems that at least some portions ofthe Rapp Declaration merely summarize interviews of al-Marri conducted by FBI agents after his civilian arrest andby DOD personnel once he was transferred to military cus-tody and imprisoned in the Charleston Naval Brig. There isevery indication that these governmental agents have first-hand information about the basis for al-Marri’s detentionand, unlike the military personnel at issue in Hamdi, arepresent in the United States. The government has made noshowing that it would be unduly burdensome to the wareffort or, more particularly, to its efforts to carry out thedirectives of the AUMF, to have them appear, either in per-son or by their own first-hand affidavits, before the districtcourt.

conflict against al Qaeda or its supportingnations. If the allegations contained within theRapp Declaration are true, then al-Marri fitswithin the exception and can be properly desig-nated an enemy combatant and militarilydetained pursuant to the authority granted thePresident in the AUMF. He would be properlyclassified as an enemy combatant who infiltratedour country under false pretenses for the purposeof waging war via terrorist activities.

Because al-Marri was seized and detained inthis country, however, he is entitled to habeasreview by a civilian judicial court and to the dueprocess protections granted by our Constitution,interpreted and applied in the context of thefacts, interests, and burdens at hand. To deter-mine what constitutional process al-Marri is due,the court must weigh the competing interests,and the burden-shifting scheme and relaxed evi-dentiary standards discussed in Hamdi serve asimportant guides in this endeavor. Hamdi doesnot, however, provide a cookie-cutter procedureappropriate for every alleged enemy-combatant,regardless of the circumstances of the allegedcombatant’s seizure or the actual burdens thegovernment might face in defending the habeaspetition in the normal way.

Al-Marri clearly stands in a much differentposition from Hamdi. He was not captured bear-ing arms on the battlefield of Afghanistan, butwas arrested within the United States by the FBIas a result of the 9/11 investigation and subse-quent intelligence operations conducted by ourgovernment. This does not preclude his designa-tion as an enemy combatant, but we cannot

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ignore that the evidence supporting his desig-nation is not likely buried under the rubble of aforeign battlefield—although it might be equallyunavailable for national security reasons. Thus,unlike in Hamdi, the government’s interest “inreducing the process available to alleged enemycombatants” may not be “heightened by the prac-tical difficulties that would accompany a systemof trial-like process.” Id. at 531 (emphasisadded). In sum, the government has not demon-strated that al-Marri’s fair opportunity for rebut-tal requires no more than that which would havebeen accorded to Hamdi on remand.

Al-Marri, like any person accused of being anenemy combatant, is entitled to a fair, meaning-ful opportunity to contest that designation byrequiring the government to demonstratethrough “the most reliable available evidence”that he is an enemy combatant, denying the alle-gations against him, and presenting evidence insupport of his contest. Id. at 534. As in Hamdi,the evidence which will be accepted and thedetermination of the manner in which due pro-cess proceedings must occur will again be leftlargely to the district courts. See id. at 538-39(noting that “[w]e anticipate that a District Court[will] proceed with the caution that we have indi-cated is necessary in this setting, engaging in afactfinding process that is both prudent andincremental. We have no reason to doubt thatcourts faced with these sensitive matters will payproper heed both to the matters of national secu-rity that might arise in an individual case and tothe constitutional limitations safeguardingessential liberties that remain vibrant even in

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times of security concerns”); accord Boumediene,553 U.S. at ___, slip op. at 67-68 (“We make noattempt to anticipate all of the evidentiary andaccess-to-counsel issues that will arise duringthe course of the detainees’ habeas corpus pro-ceedings. We recognize, however, that the Gov-ernment has a legitimate interest in protectingsources and methods of intelligence gathering;and we expect that the District Court will use itsdiscretion to accommodate this interest to thegreatest extent possible. . . . These and . . . otherremaining questions are within the expertise andcompetence of the District Court to address inthe first instance.”). In this regard, the districtcourt retains all its normal flexibility to vary themanner in which the presentation of evidenceoccurs in enemy-combatant proceedings. It is notprecluded from accepting the hearsay declarationshould it conclude that threats to national secu-rity or the war efforts dictate its use. See Hamdi,542 U.S. at 533-34; see also Boumediene, 553U.S. at ___, slip op. at 67 (Habeas corpus courtsmay not “disregard the dangers the detention inthese cases was intended to prevent. . . . Certainaccommodations can be made to reduce the bur-den habeas corpus proceedings will place on themilitary without impermissibly diluting the pro-tections of the writ.”). But, it is not handcuffedby an inflexible procedure that would demandacceptance of a hearsay declaration from the gov-ernment simply because the government haslabeled al-Marri an enemy combatant.

The general rule, therefore, is that al-Marriwould be entitled to the normal due process pro-tections available to all within this country,

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including an opportunity to confront and ques-tion witnesses against him. But, if the govern-ment can demonstrate to the satisfaction of thedistrict court that this is impractical, outweighedby national security interests, or otherwiseunduly burdensome because of the nature of thecapture and the potential burdens imposed onthe government to produce non-hearsay evidenceand accede to discovery requests, then alterna-tives should be considered and employed. Giventhe grave national security concerns in matterssuch as this, and that the Rapp Declaration ref-erences not only al-Marri’s activities in thiscountry but also those he engaged in abroad priorto his entry here, the Rapp Declaration mightconceivably prove to be “the most reliable avail-able evidence” within the meaning of Hamdi, atleast as to some allegations. However, I am notsatisfied to let matters stand as they are whenthe government has not even been required todemonstrate to the district court why it cannot orshould not be required to produce, even for exparte examination, any of the supporting evi-dence relied upon by Rapp to justify al-Marri’sdetention. Here, the government has made noshowing that “[h]earsay . . . [needs] to beaccepted as the most reliable available evidencefrom the [g]overnment” or that the “exigencies ofthe circumstances . . . demand . . . [that the]enemy-combatant proceeding[ ] . . . be [otherwise]tailored to alleviate their uncommon potential toburden the Executive at a time of ongoing mili-tary conflict.” Hamdi, 542 U.S. at 533-34; cf.Boumediene, slip op. at 64-65 (“Practical consid-erations and exigent circumstances inform the

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definition and reach of the law’s writs, includinghabeas corpus. The cases and our traditionreflect this precept.”).16

I think due process, at a minimum, demandsthat the government make this showing. It isonly after that showing has been made, i.e., “oncethe [g]overnment puts for credible evidence thatthe habeas petitioner meets the enemy-combat-ant criteria,” that “the onus could shift to the

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16 The Boumediene Court held that the procedural pro-tections given to enemy combatants under the Military Com-missions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600,fell “well short of the procedures and adversarial mecha-nisms that would eliminate the need for habeas corpusreview,” id., 553 U.S. at ___, slip op. at 37, noting in par-ticular that while “[t]he detainee is allowed to present ‘rea-sonably available’ evidence, . . . his ability to rebut theGovernment’s evidence against him [which is accorded a pre-sumption of validity] is limited by the circumstances of hisconfinement and his lack of counsel at th[at] stage,” id., 553U.S. at ___, slip op. at 38 (citation omitted). And while thedissent disagreed that the CSRT hearings were an insuffi-cient substitute for habeas, it too pointed out in defense thatthe CSRT provides “every petitioner . . . the right to presentevidence that he has been wrongfully detained,” “includ[ing]the right to call witnesses who are reasonably available,question witnesses called by the tribunal, introduce docu-mentary evidence, and testify before the tribunal.” Id., 553U.S. at ___, slip op. at 17 (Roberts, C.J., dissenting).Nowhere, in either Hamdi or Boumediene, do I find supportfor the view that a detainee may be wholly deprived of alldiscovery and all rights to cross-examination and con-frontation—regardless of the availability of the witnessesand documentary evidence—without any inquiry intowhether exigent circumstances or other concerns fornational security necessitate such a drastic lessening of theprocess normally available who challenge their executivedetention.

petitioner to rebut that evidence with more per-suasive evidence that he falls outside the crite-ria.” Id. at 534 (emphasis added). “In the wordsof Mathews, process of this sort would suffi-ciently address the ‘risk of an erroneous depri-vation’ of a detainee’s liberty interest whileeliminating certain procedures that have ques-tionable additional value in light of the burdenon the [g]overnment.” Id.

D.

Concluding that the procedural frameworkemployed below has not been shown to be con-stitutionally sufficient, however, does not com-pletely end the inquiry. The district court heldthat the Hamdi framework, with its relaxed evi-dentiary standards and presumption in favor ofthe government, applies to every enemy-com-batant case, permitting the government to meetits initial burden with a hearsay declarationregardless of the location of capture or the citi-zenship of the detainee. The district court alsoheld that the Rapp Declaration was sufficient tomeet the government’s initial burden, entitling itto the favorable presumption and shifting to al-Marri the burden of refuting the allegations by“more persuasive” evidence. However, al-Marri’spetition was not ultimately dismissed becausethe district court weighed competing factual evi-dence and determined that it supported a findingthat al-Marri was an enemy combatant, i.e., thatthe allegations of the Rapp Declaration weretrue. Rather, the district court dismissed thepetition because al-Marri failed to come forward

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with affidavits and documents of his own asrequired by the court’s order, thereby ostensiblyfailing to contradict the government’s position“with more persuasive evidence.”

Al-Marri, however, did not ignore the districtcourt. He filed a pleading in which he denied theallegations in the Rapp declaration, he deniedthat he was an enemy combatant, and he deniedhe had entered the United States to commit hos-tile acts. In this, his first opportunity to contesthis designation as an enemy combatant, he hadbeen completely denied any discovery, not beenallowed to see the evidence upon which the alle-gations were based, and not told even the iden-tity of his accusers, all without adequateexplanation or justification. Given that his bur-den was not just to contest, but to disprove, hewas placed at a substantial disadvantage. Anddespite the efforts that have been made to sloughoff or ignore the burden of proof placed upon him,the fact warrants emphasis that al-Marri wasrequired under these circumstances to prove thathe was not an enemy combatant by more per-suasive evidence. See J.A. 183 (holding that al-Marri would be given sixty days to file factualevidence to rebut the Rapp Declaration by “morepersuasive evidence, but if “unable to producemore persuasive evidence than that produced bythe government,” i.e., the Rapp Declaration, “theinquiry [would] end there”). He did contest theconstitutionality of the process to which he hadbeen subjected, and he declined for the timebeing “to assume the burden of proving his inno-cence.” J.A. 231. Had he produced evidence, it ispossible that the district court might have found

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his contrary evidence sufficiently “more persua-sive” than the Rapp Declaration, but proving hewas not the enemy would have gotten al-Marriexactly nothing as a practical matter since thegovernment had been guaranteed the option offurther proceedings against him.

In the end, the district court rejected al-Marri’spetition because it presumed that the process itutilized was a constitutional one, the point onwhich I disagree. I am aware of no case in whicha person detained in this country has beenstripped of the opportunity to contest the legalityof his detention for refusing to participate in anunconstitutional process. Nor has any beenpointed out to me. A criminal defendant cannotclaim a procedural due process violation after hehas refused to avail himself of protections thatcomport with his constitutional rights, but al-Marri is not presently a criminal defendant andhe refused to participate in a process that, in myjudgment, was not constitutional.

In any event, given the unique and uncertaincircumstances in which al-Marri found himself ashe progressed in his challenge, I think it wouldbe unfair to punish al-Marri by dismissing hispetition on this basis. Al-Marri had been chargedcriminally with serious crimes prior to his des-ignation as an enemy combatant. After his trans-fer from civilian to military custody, he advanceda novel but plausible argument that, as a resi-dent seized within this country, he should be con-sidered a civilian who could not be detained asan enemy combatant and he should be returnedto the criminal justice system. Were he ulti-mately successful on this issue, al-Marri would

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be accorded the presumption of innocence andthe Fifth Amendment right not to “be compelled. . . to be a witness against himself.” U.S. Const.Amend. V. Al-Marri simultaneously advanced asecond, plausible argument that the Hamdiframework would not meet the minimum proce-dural due process requirements in his quite dif-ferent situation, and that he was entitled tosomething more akin to the criminal process pro-tections. As evidenced in Hamdi, Padilla, andthis case, the government frequently changes themanner in which it deals with alleged enemycombatants during the pendency of habeas pro-ceedings, including transferring detainees backand forth from civilian to military detentionwhen it deems it prudent. Accordingly, al-Marrihad every reason to fear that were he to give evi-dence on his behalf in an attempt to meet the“more persuasive” standard, the governmentmight then choose to transfer him back to civil-ian custody and use his own evidence againsthim.

Given the serious nature of the claims beforeus and the uncertainties which existed at thetime, and the fact that al-Marri was deprived ofany opportunity to obtain any direct or first-handevidence from those who had arrested him andlater detained him, I cannot be overly critical ofal-Marri’s strategy of not responding to the RappDeclaration with rebuttal evidence beyond hisgeneral denial, and I cannot sanction dismissal ofal-Marri’s habeas petition based upon a choicenot to participate in the constitutionally and

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statutorily insufficient procedure.17 Al-Marri mayhave squandered an opportunity to contest hisdesignation, but he did not squander a “mean-ingful opportunity” to do so.

IV. Conclusion

To conclude, the issues we decide today are sig-nificant for the reasons stated throughout all ofthe opinions. But, in my judgment, there areadditional concerns implicated by our decisionthat may have gone without sufficient notice. Thecase before us deals on the surface with a foreignnational who has entered the United States. Butthe rights al-Marri asserts are those availableunder our Constitution to anyone within our bor-ders, including, obviously, American citizens.Under the current state of our precedents, it islikely that the constitutional rights our courtdetermines exist, or do not exist, for al-Marri willapply equally to our own citizens under like cir-cumstances. This means simply that protectionswe declare to be unavailable under the Consti-tution to al-Marri might likewise be unavailableto American citizens, and those rights which pro-tect him will protect us as well.

The Hamdi court gave the government theopportunity to use hearsay testimony when prac-

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17 See 28 U.S.C.A. § 2246 (“On application for a writ ofhabeas corpus, evidence may be taken orally or by deposi-tion, or, in the discretion of the judge, by affidavit. If affi-davits are admitted any party shall have the right topropound written interrogatories to the affiants, or to fileanswering affidavits.”) (emphasis added).

tical considerations required it, and the courtsuggested that this evidence might also beaccompanied by a presumption of validity. See id.at 534. Because the detainee must prove a nega-tive—that he is not an enemy combatant—toobtain release and he or someone on his behalfmust do it with more persuasive evidence in cir-cumstances where the military may be holdingthe detainee incommunicado, simple fairnessseems to me to require that first-hand evidencefrom the government should be the norm and theuse of hearsay the exception. Add to the mix thatthe individual could be an American citizen andthat the government’s evidence could be here inthe United States, easily accessible and publiclydisclosable, and the need for a check on the gov-ernment’s use of a hearsay affidavit to justify thelong-term military detention of a person becomesobvious.

In these uncertain times, we must tread care-fully when balancing our need for national secu-rity with our rights as individuals. This case isfraught with danger to individual rights and forthat reason, I expressly limit the reach of myopinion and decide no more than is explicit andnecessary to address the issues presented to us.

If the allegations against al-Marri are true, al-Marri is a foreign national and member of alQaeda who entered the United States with a pur-pose to commit additional hostile and war-likeacts within our homeland, and he may thereforebe detained as an enemy combatant under theAUMF. Accordingly, I would affirm the districtcourt’s order denying al-Marri’s motion for sum-mary judgment on the issue of whether the Pres-

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ident possesses the legal authority to detain al-Marri as an enemy combatant.

However, because al-Marri was present withinour borders at the time our intelligence sourcesidentified him as an enemy combatant, he is enti-tled to contest his designation under the burden-shifting scheme outlined in Hamdi. Under thisscheme, the government may demonstrate thatthe balance of the competing interests weighs onthe side of lessened due process protections,which al-Marri and his counsel may contest. Butbecause the district court applied Hamdi ’s less-ened procedures to al-Marri without any addi-tional inquiry or balancing of the respectiveinterests, I would hold that the process al-Marrireceived was constitutionally insufficient, vacatethe district court’s order dismissing al-Marri’spetition, and remand for further proceedings.

GREGORY, Circuit Judge, concurring in the judg-ment:

I join the per curiam opinion reversing andremanding the district court’s decision because“al-Marri has not been afforded sufficient processto challenge his designation as an enemy com-batant.” (Per Curiam Op. at 5). Further, I join inJudge Motz’s concurrence. While I respect theopinions and tireless work of my colleagues, Iwrite separately to provide historical context andto express my intransigent belief that the Con-stitution requires a person detained in theUnited States under the Authorization for theUse of Military Force (“AUMF”) receive a deter-minate level of due process to justify the denial ofhis liberty. And it is the role of this Court to pro-

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vide clear guidance as to the contours of that dueprocess.

The horrific attack on 9/11 resulted in con-gressional passage of the AUMF, the most far-reaching bestowal of power upon the Executivesince the Civil War. The AUMF authorizes thePresident to “use all necessary and appropriateforce against . . . persons” with a connection—however attenuated that connection may be—tothe 9/11 attacks in order to “prevent any future[terrorist] attacks . . . against the United States.”Pub. L. No. 107-40, 115 Stat. 224 (2001). As I dis-cuss below, the AUMF punishes conduct, not sta-tus. Therefore, the location and citizenship of aputative enemy should be of no consequence indetermining the level of due process that anenemy combatant detained in America under theAUMF, like al-Marri, should receive.

The majority of my colleagues agree that a per-son of al-Marri’s status is entitled to more dueprocess than that which he received, but unfor-tunately, there is no concrete guidance as towhat further process is due. Little doubt existsthat this judgment will leave the district courtwith more questions than answers. In decidingwhat this process should entail, the district courtcan find wise counsel in Supreme Court andFourth Circuit precedent, including our decisionin United States v. Moussaoui, 382 F.3d 453 (4thCir. 2004), and in the statutory frameworkCongress created for handling classified materialin a judicial setting, the Classified InformationProcedures Act (“CIPA”), 18 U.S.C. App. 3, §§ 1-16 (West 2000 & Supp. 2007).

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I.

Every American, unless clearly abrogated bycongressional act or deprived by due process oflaw, has a right to freedom—a right protected bythe writ of habeas corpus.1 Senator ArlenSpecter, in introducing a bill to restore habeascorpus to all aliens detained within U. S. terri-tory, reminded us that the venerated right tohabeas corpus is “a right which has existed inAnglo Saxon jurisprudence since King John in1215 at Runnymede.” 152 Cong. Rec. S 11196-01(December 5, 2006). Indeed, the writ is so cher-ished that it has been referred to by Blackstoneas “the most celebrated writ in the English law”,3 William Blackstone, Commentaries *129, a rev-erence echoed by the Supreme Court. See Exparte Bollman, 4 Cranch 75, 95 (1807) (describ-ing the writ of habeas corpus as the “[G]reat[W]rit.”)

Alexander Hamilton lauded “the establishmentof the writ of habeas corpus” along with “the pro-hibition of ex-post-facto laws, and of TITLES OFNOBILITY” as the Constitution’s “greate[st]securities to liberty and republicanism.” The Fed-eralist No. 84 (Alexander Hamilton) (emphasis inoriginal); see also, Boumediene v. Bush, 553 U.S.___, ___, slip op. at 12, No. 06-1195 (June 12,2008) (“That the Framers considered the writ a

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1 The Great Writ originally concerned whether thecourt had jurisdiction, see e.g., Ex parte Watkins, 28 U.S. 193(1830), but it has “evolved as a remedy available to effectdischarge from any confinement contrary to the Constitutionor fundamental law.” Preiser v. Rodriguez, 411 U.S. 475, 485(1973).

vital instrument for the protection of individualliberty is evident from the care taken to specifythe limited grounds for its suspension[.]”). Thebroad language of the AUMF, literally construed,gives the President carte blanche to take anyaction necessary to protect America against anynation, organization, or person associated withthe attacks on 9/11 who intends to do futureharm to America. Nevertheless, nothing calls forthe lifting of the Great Writ in the AUMF, in itslegislative history, or even in congressional orpresidential public statements. But, if weapproved the “due process” al-Marri received, wewould do precisely that.

When an American citizen2 can be designatedan enemy combatant, arrested by the military,and held incommunicado with no knowledge ofthe justification for his detention (other than adeclaration from a government official who hasno first-hand knowledge of the situation), it isnot only al-Marri’s rights that are at stake, butrather the rights of every man, woman, and childwho breathe the fragrant scent of liberty in thisgreat land. I am cognizant that the Commander-in-Chief must be able to conduct a war withoutundue interference from a co-equal branch of gov-ernment. Accordingly, I recognize the delicateconstitutional balance that must be struckbetween military detention and the possibility ofabridged due process proceedings during times of

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2 As I explain below, while al-Marri is not an Ameri-can citizen, that distinction is insignificant under theAUMF, and the rights al-Marri receives will no doubt be thestandard by which we measure the due process rights of allenemy combatants detained in the United States.

war. However, an independent judiciary isobliged to preserve the fundamental buildingblocks of our free society—in this case, the rightto know why one has been deprived of his libertyand a fair opportunity to answer that charge. SeeBoumediene, 553 U.S. at ____, slip op. at 9 (“TheFramers viewed freedom from unlawful restraintas a fundamental precept of liberty, and theyunderstood the writ of habeas corpus as a vitalinstrument to secure that freedom.”).

Our judgment today, while entitling al-Marri toan indeterminate measure of further due process,leaves much to be desired. Regrettably, theunvarnished result is that the AUMF authorizesthe President to substitute the full protections ofthe Great Writ for any enemy combatantdetained in the United States with an alternativedue process framework tethered to mere sugges-tions.

The uncertain duration of this conflict—theseven-year anniversary of 9/11 is less than threemonths away—and the fact that America is notfighting a traditional nation-state means that theprospect of future al-Qaeda operatives enteringthe country for deleterious purposes is very realand ongoing with no foreseeable end. See Boume-diene, 553 U.S. at ___, slip op. at 56, 41 (predict-ing that the war on terrorism may “last ageneration or more” and noting that it is “alreadyamong the longest wars in American history”). Itstretches the bounds of credulity to think that aTreaty of Versaillesesque ceremony will ever endall terrorist hostilities against the United States.

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With this troubling thought in mind, I attemptto provide a legal framework to assist the districtcourt in adjudicating this matter on remand.

II.

The factual circumstances underlying this case“are entirely unlike those of the conflicts thatinformed the development of the law of war,”Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004),thus it is incumbent upon us to outline the con-tours of the due process framework for the dis-trict court.3 In doing so, we must respect theFramers’ decision to place the power to conduct awar in the hands of the Executive, see U.S.Const. art. II, § 2, cl. 1, but we must also recallthe Supreme Court’s admonition that “a hermeticsealing off of the three branches of Governmentfrom one another would preclude the establish-ment of a Nation capable of governing itself effec-tively.” Buckley v. Valeo, 424 U.S. 1, 121 (1976)(per curiam). This is particularly true when, ashere, the situation demands adjudication. It is,without question, the sole province of the judicialbranch to determine what process a personshould receive. See Boumediene, 553 U.S. at ___,slip op. at 36 (holding that “the writ of habeascorpus is itself an indispensable mechanism formonitoring the separation of powers”). As we

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3 The din of my good colleagues urging an incrementaldue process approach is problematic because “the relevantlanguage in Hamdi did not garner a majority of the Court.”Boumediene, 553 U.S. at ___, slip op. at 55.

pointed out in United States v. Moussaoui, 382F.3d 453, 469 (4th Cir. 2004):

This is not a case involving arrogation ofthe powers or duties of another branch.The district court orders requiring pro-duction of the enemy combatant wit-nesses involved the resolution ofquestions properly-indeed, exclusively-reserved to the judiciary. Therefore, ifthere is a separation of powers problemat all, it arises only from the burden theactions of the district court place on theExecutive’s performance of its duties.

Accordingly, the separation of powers issue is ofno moment here as the remand requires the dis-trict court to perform a purely judicial function:determine which evidence the Government mustturn over to al-Marri. Moreover, as we have seenin Moussaoui, and more recently in United Statesv. Abu Ali, 528 F.3d 210 (4th Cir. 2008), thequestion of whether that evidence is publicly dis-closable is of little relevance. Rather, the perti-nent question is whether al-Marri will be able toreview such evidence, and if so, in what formthat evidence will be presented.

A.

While Judge Traxler states that “it is likelythat the constitutional rights our court deter-mines exist, or do not exist for al-Marri willapply equally to our own citizens under like cir-cumstances” ante at 98 (Traxler, J., concurring injudgment) (emphasis added), it is beyond perad-

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venture that the Constitution will furnish anAmerican citizen, detained under these circum-stances, no more rights than those we provide al-Marri. Indeed, any other result would beinconsistent with the very text of the AUMF andthe Constitution. After Hamdi, we decided Hanftv. Padilla, 423 F.3d 386 (4th Cir. 2005), wherewe explained that the “distinction between anenemy combatant captured abroad and detainedin the United States, such as Hamdi, and anenemy combatant who escaped capture abroadbut was ultimately captured domestically anddetained in the United States, such as Padilla” isinsignificant when determining who is an enemycombatant. Id. at 393. Though we did not addressthe issue of what process, if any, the Constitutionowed Padilla, his arrest in the United Statesentitled him to the same level of process that al-Marri should receive.

As the district court recognized, the Hamdiplurality set out some guideposts for determiningthe due process rights of an enemy combatant.Most importantly, the Supreme Court held that“a citizen-detainee seeking to challenge his clas-sification as an enemy combatant must receivenotice . . . and a fair opportunity to rebut theGovernment’s factual assertions[.]”. Hamdi, 542U.S. at 533 (emphasis added). The circumstancesunderlying al-Marri’s detention, when juxtaposedwith the facts in Moussaoui, Padilla, and AbuAli, and with the Executive’s decision as to whichof them should be designated enemy combatants,inform my view as to what is “fair” in this case.

The Executive’s process for designating an al-Qaeda operative an enemy combatant has very

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real legal consequences. Padilla, Moussaoui, andAbu Ali, all al-Qaeda operatives bearing thetrademarks of an enemy combatant, werecharged, like al-Marri, in the civilian criminalsystem. Unlike al-Marri, however, the Executiveallowed the other defendants to proceed in civil-ian criminal trials for reasons that are unknown.

In Padilla, the Executive’s decision to desig-nate Padilla as an enemy combatant upon hisarrest gave credence to that decision. Foregoingany discussion of due process, we held that “theavailability of criminal process cannot be deter-minative of the power to detain,” Padilla, 423F.3d at 394, because detention prevented theenemy combatant from “return[ing] to the field ofbattle.” Id. at 395. Moreover, if Padilla was notdetained, “criminal prosecution would impede theExecutive in its efforts to gather intelligencefrom the detainee and to restrict the detainee’scommunication with confederates so as to ensurethat the detainee does not pose a continuingthreat to national security even as he is con-fined.” Id. Given these justifications, the Execu-tive’s subsequent decision to transfer Padillafrom military to civilian custody on the eve of theSupreme Court’s review of our decision came, inthis Court’s view, at a “substantial cost to thegovernment’s credibility before the courts,”Padilla v. Hanft, 432 F.3d 582, 585-86 (4th Cir.2005) because:

we would regard the intentional mootingby the government of a case of thisimport out of concern for Supreme Courtconsideration not as legitimate justifi-

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cation but as admission of attemptedavoidance of review. The governmentcannot be seen as conducting litigationwith the enormous implications of thislitigation-litigation imbued with signifi-cant public interest-in such a way as toselect by which forum as between theSupreme Court of the United States andan inferior appellate court it wishes to bebound.

Though much of the Government’s evidenceagainst Padilla, Moussaoui, and Abu Ali remainsclassified, the sheer volume of that evidence isoverwhelming.4 Beyond the Rapp Declaration,the Government turned nothing over to al-Marri.Therefore, at this stage, it is impossible to deter-mine if evidentiary concerns played any role inthe Executive’s decision to designate al-Marri anenemy combatant.

Al-Marri was arrested and imprisoned for eigh-teen months in the civilian criminal system, andwith less than one month before the commence-ment of his trial, the Executive authorized al-Marri’s transfer to military custody. Just as weexpressed our skepticism with the Government’s

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4 For example, the Government ultimately providedMoussaoui “with millions of pages of documents, includingmore than 166,000 FBI interview reports and over 1.7 mil-lion pages of documents from the FBI’s ongoing criminalinvestigation of the September 11 attacks (the PENTTBOMinvestigation). In addition, the Government provided a num-ber of other evidentiary materials, such as audio and videotapes and grand jury information.” United States v. Mous-saoui, 483 F.3d 220, 224 (4th Cir. 2007).

attempt to transfer Padilla from the military tothe civilian criminal system three and a halfyears after his initial detention, the Executive’sdecision to designate al-Marri an enemy com-batant on the very eve of his civilian criminaltrial raises a similar concern.

B.

While the Hamdi court held that “full protec-tions that accompany challenges to detentions inother settings may prove unworkable and inap-propriate in the enemy-combatant setting,”Hamdi, 542 U.S. at 535 (emphasis added), thismay not be the case for al-Marri. Determiningthe “workability” of providing al-Marri with first-hand evidence to support the Rapp Declaration iscritical, especially in light of the harsh conditionsto which enemy combatants are subject. As mycolleagues point out, al-Marri was neitherarrested on the battlefield in some far-flung loca-tion nor were his alleged criminal activities cen-tered abroad. Moreover, from the informationavailable to us, al-Marri’s crimes relate todefrauding American financial institutions andlying to American law enforcement. Nothing inthe record undermines al-Marri’s contention thatthe majority of evidence relied upon by the Gov-ernment is in the possession of U.S. governmen-tal agencies. If this proves to be the case,obtaining such evidence should be “workable,”and “fairness” requires an in-camera, ex-partereview of such evidence. See Boumediene, 553U.S. at ___, slip op. at 64-65 (“Practical consid-erations and exigent circumstances inform the

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definition and reach of the law’s writs, includinghabeas corpus.”).

During this in-camera, ex-parte proceeding, theGovernment could present evidence supportingthe allegations against al-Marri and would pre-sumably make its case for keeping such evidencefrom him. The district court would then decidewhich evidence is “appropriate” for al-Marri toreview, and subsequently, provide a rationale asto why any remaining evidence is “inappropri-ate.” In fashioning the process by which the dis-trict court should make its evidentiarydetermination, we need not develop a frameworkfrom whole cloth. Supreme Court and Fourth Cir-cuit precedent, when considered alongside CIPA,provides the Judiciary with a step-by-step guidefor balancing the national security interests ofthe country with individual due process rights.

C.

In Abu Ali, we presciently set forth the fol-lowing statement on the treatment of terroristsin our criminal system:

Persons of good will may disagree overthe precise extent to which the formalcriminal justice process must be utilizedwhen those suspected of participation interrorist cells and networks are involved.There should be no disagreement, how-ever, that the criminal justice systemdoes retain an important place in theongoing effort to deter and punish ter-rorist acts without the sacrifice of Amer-

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ican constitutional norms and bedrockvalues. As will be apparent herein, thecriminal justice system is not withoutthose attributes of adaptation that willpermit it to function in the post-9/11world. These adaptations, however, neednot and must not come at the expense ofthe requirement that an accused receive afundamentally fair trial.5

Abu Ali, 528 F.3d at 221 (emphasis added). Ourjudicial system is well-equipped to handle clas-sified material efficiently and to balance anaccused’s right to review evidence againstnational security interests. In Mathews v.Eldridge, 424 U.S. 319 (1976), the SupremeCourt “dictate[ed] that the process due in anygiven instance is determined by weighing theprivate interest that will be affected by the offi-cial action against the Government’s assertedinterest, including the function involved and theburdens the Government would face in providinggreater process.” Hamdi, 524 U.S. at 529 (inter-nal quotation marks and citation omitted).Because much of the evidence al-Marri requestsmay be readily available, assuming that evidencewould not compromise the Executive’s ability towage war, the Government should provide it tothe district court.

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5 Like Moussaoui, Abu Ali was tried in the civilianjudicial system. Because both Abu Ali and Moussaoui couldhave been detained under the AUMF, I find that the processprovided to them is informative.

i.

The Mathews calculus, albeit helpful, leavesmany questions unanswered, particularly thoseconcerning how the district court should assessthe classified information’s relevance. “In thearea of national security and the government’sprivilege to protect classified information frompublic disclosure, we [have] look[ed] to CIPA forappropriate procedures.” Abu Ali, 528 F.3d at245. Prior to CIPA’s enactment, the Governmentwas placed in the unenviable position of “aban-don[ing] prosecution rather than risk possibledisclosure of classified information.” Id. (internalquotation marks and citation omitted). By struc-turing a framework for evaluating the use andadmissibility of classified evidence without pub-lic disclosure, CIPA alleviates this dilemma. Itprovides that any hearing conducted “shall beheld in-camera” if the Attorney General providesthe court with reasons for why “that public pro-ceeding may lead to the disclosure of classifiedinformation.”6 18 U.S.C.App. § 6(a).

Section 6 of CIPA sets out a clear procedure forthe district court to utilize in handling classifiedevidence and determining its “use, relevance andadmissibility.” 18 U.S.C.App. § 6(a). If the dis-trict court finds the classified information rele-vant and material, CIPA requires that thedistrict court give it to the accused unless anadequate substitute can be provided. See Mous-

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6 Section 6 also allows the district court to seal therecords from any in-camera proceedings. 18 U.S.C.App.§ 6(d).

saoui, 382 F.3d at 476. In determining the acces-sibility of such information, the district courtshould “take[ ] cognizance of both the state’sinterest in protecting national security and thedefendant’s interest in receiving a fair trial.”United States v. Fernanadez, 913 F.2d 148, 154(4th Cir. 1990).

When weighing the competing interests of theGovernment and the accused, common law priv-ileges protecting the disclosure of evidence con-tinue to apply. See United States v. Smith, 780F.2d 1102, 1107 (4th Cir. 1985) (en banc). Thus,common law privileges protecting classified infor-mation from disclosure on account of military orstate secrets remain applicable. However, in thecontext of CIPA, we held that privilege would“give way” if the classified information “is rele-vant and helpful to the defense of an accused oris essential to a fair determination of a cause.”Id. at 1107 (internal quotation marks and cita-tion omitted) (emphasis added).

ii.

CIPA provides the accused with access to clas-sified documents, not witnesses. Nevertheless, inMoussaoui, we held that, while CIPA was notdirectly applicable, it “provides a useful frame-work for considering the questions raised byMoussaoui’s request for access to the enemy com-batant witnesses.” Moussaoui, 382 F.3d at 472n.20. Similarly, CIPA is not directly applicable toal-Marri’s case because he is not entitled to the“equivalent of a full blown” criminal trial.Hamdi, 542 U.S. at 524. Yet, CIPA can certainly

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guide the district court’s consideration of al-Marri’s evidentiary requests especially giventhat al-Marri primarily requests documents.

Additionally, we held that Moussaoui shouldhave qualified access to material enemy com-batant witnesses and their prior statements. Inorder to establish the witnesses’ relevance, heonly had to make a “plausible showing” of mate-riality. Moussaoui, 382 F.3d at 472 (internal quo-tation marks and citation omitted). As al-Marriwill likely be placed in the same evidentiaryquandary as Moussaoui—i.e., no direct access toenemy combatant witnesses—he should likewisebe held to the same lower threshold in estab-lishing the materiality of witnesses. Further, wealso held that substituting actual testimony fromenemy combatants with an alternative procedureshould “be an interactive process among the par-ties and the district court.” Id. at 480. Recog-nizing that “the burdens that would arise fromproduction of the enemy combatant witnesses aresubstantial,” id. at 471, there are times whensuch evidence, even via an affidavit, will be nec-essary to substantiate the Government’s evi-dence.

As a practical matter, this process could takeplace in an in-camera, ex-parte hearing wherethe Government responds to al-Marri’s requestsfor information and explains why national secu-rity concerns preclude disclosing evidence. Whilesome of al-Marri’s requests, such as to deposehigh-level members of the Executive, may indeedprove onerous, Moussaoui is an excellent tem-plate for the district court. It demonstrates how,in consultation with the relevant parties, a court

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can craft remedies that satisfy an enemy com-batant’s unique evidentiary requests withoutunduly burdening the Government or compro-mising national security. Ultimately, in givingal-Marri a “fair opportunity” to dispute his des-ignation as an enemy combatant, the districtcourt should “seek a solution that neither dis-advantages [al-Marri] nor penalizes the govern-ment (and the public) for protecting classifiedinformation that may be vital to national secu-rity.” Id. at 477.

III.

If our remand is to be meaningful, the districtcourt must demand evidence supporting theveracity of the Rapp Declaration. Presumably, al-Marri’s civilian grand jury reviewed materialportions of al-Marri’s file prior to his classifica-tion as an enemy combatant. Common senseleads to the conclusion that many of the docu-ments al-Marri requests are located here in theUnited States. As we set out in Moussaoui andAbu Ali, should the Government object to turningover documents on the basis of national securityconcerns, the district court has a very specificfederal statute, CIPA, to guide its determinationof what documents can be turned over to al-Marri. In addition, the Supreme Court’s decisionsin Mathews and Hamdi provide the appropriatebalance that the district court should strike uponreviewing such evidence.

In this time of angst and fear, we can findsolace and wisdom in the words of Thomas Jef-ferson—words that have kept our nation’s focus

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on noble principles in the worst of times. Speak-ing at his First Inaugural, Jefferson included the“protection of habeas corpus” among those “prin-ciples [which] form the bright constellation whichhas gone before us and guided our steps throughan age of revolution and reformation . . . andshould we wander from them in moments of erroror of alarm, let us hasten to retrace our steps andto regain the road which alone leads to peace, lib-erty, and safety.” Thomas Jefferson, First Inau-gural Address, March 4, 1801. I urge the districtcourt to “retrace our steps” as it considers thiscase on remand.

WILLIAMS, Chief Judge, concurring in part anddissenting in part:

While I respect the lengthy and thorough writ-ings in this case, I believe that Ali Saleh Kahlahal-Marri’s 28 U.S.C.A. § 2241 (West 2006 & Supp.2007) petition presents a relatively straightfor-ward factual situation.1 According to the decla-ration filed in this case (and sworn under pain ofperjury) by Jeffrey N. Rapp, the Director of theJoint Intelligence Task Force for Combating Ter-rorism (the “Rapp Declaration”), Al-Marri is amember of al-Qaeda who underwent training inAfghanistan between 1996 and 1998 and wassent to the United States as a sleeper agent on

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1 In light of Boumediene v. Bush, 553 U.S. ___, ___ S.Ct. ___ (June 12, 2008), I agree with the plurality opinionthat we have jurisdiction over al-Marri’s 28 U.S.C.A. § 2241(West 2006 & Supp. 2007) petition.

September 10, 2001.2 Accepting these allegationsas true, I believe, pursuant to the Authorizationfor Use of Military Force Joint Resolution, Pub.L. No. 107-40, 115 Stat. 224 (September 18,2001) (“AUMF”), the President has the power todetain al-Marri. Thus, on this issue I agree withthe separate opinions of Judge Traxler, JudgeWilkinson, and Judge Niemeyer. Unlike JudgeTraxler, however, given al-Marri’s failure to“participate in a meaningful way,” (J.A. at 244),before the magistrate judge and district court, Iwould hold that al-Marri cannot now challengethe factual basis for his detention before ourcourt. Accordingly, like Judge Wilkinson andJudge Niemeyer, I would affirm the dismissal ofal-Marri’s § 2241 petition and therefore dissentfrom the judgment of the court.

I.

A.

Following the September 11 attacks, Congress,on September 18, 2001, enacted the AUMF,which authorized the President, acting as Com-mander-in-Chief, to “use all necessary and appro-priate force against those nations, organizations,or persons he determines planned, authorized,committed, or aided” the terrorist attacks thatoccurred on September 11, 2001. 115 Stat. at224. The purpose of such authorization, Congress

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2 Because the separate opinions have spelled out thedetails of the allegations in the Rapp Declaration, I do notrepeat them here.

made clear, was to “prevent any future acts ofinternational terrorism against the United Statesby such nations, organizations, or persons.” Id.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), theSupreme Court held that the AUMF granted thePresident the power to detain “enemy combat-ants”—as the term was defined in that case—including a United States citizen capturedoverseas during the conflict in Afghanistan. Id.at 521. As the Court explained, detention of anenemy combatant fell within the range of “nec-essary and appropriate force” granted by theAUMF because “detention to prevent a combat-ant’s return to the battlefield is a fundamentalincident of waging war.”3 Id. at 519; see also In reTerrito, 156 F.2d 142, 145 (9th Cir. 1946) (notingmilitary detention serves “to prevent the cap-tured individual from serving the enemy.”) Ofequal import, however, is the Supreme Court’sholding that civilians may not be subject to mil-itary detention. Ex Parte Milligan, 71 U.S. 2(1866). Thus, in my view, if al-Marri is an“enemy combatant” who falls within the scope ofthe AUMF, he may be detained; if, however, he isnot an enemy combatant, and therefore a merecivilian, the Constitution forbids such detention.

In Hamdi, the Supreme Court defined the term“enemy combatant” for purposes of that case as“an individual who . . . was part of or supporting

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3 Indeed, the practice of detaining enemy combatantsmilitarily predates our Constitution. See Ex Parte Quirin,317 U.S. 1, 31 (1942) (noting that “[s]uch was the practice ofour own military authorities before the adoption of the Con-stitution, and during the Mexican and Civil Wars.”).

forces hostile to the United States or coalitionpartners in Afghanistan and who engaged in anarmed conflict against the United States there.”Hamdi, 542 U.S. at 516 (plurality) (internal quo-tation marks omitted). The Hamdi Court left it tolower courts to further refine the definition infuture cases, see Hamdi, 542 U.S. at 522 n.1(“The permissible bounds of the [enemy combat-ant] category will be defined by the lower courtsas subsequent cases are presented to them.”).

In the context of World War II, the Courtdefined the term “unlawful combatant” toinclude:

those who during time of war pass sur-reptitiously from enemy territory intoour own, discarding their uniforms uponentry, for the commission of hostile actsinvolving destruction of life or property,have the status of unlawful combatantspunishable as such by military commis-sion.

Ex Parte Quirin, 317 U.S. 1, 35 (1942). The Courtexpounded later that “enemy belligerents”“includ[ed] those acting under the direction ofthe armed forces of the enemy, for the purpose ofdestroying property used or useful in prosecutingthe war.” Id. at 37.

A distillation of these precedents, I believe,yields a definition of an enemy combatant subjectto detention pursuant to Congressional autho-rizations as an individual who meets two criteria:(1) he attempts or engages in belligerent actsagainst the United States, either domestically or

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in a foreign combat zone; (2) on behalf of anenemy force.

Given the specific allegations against al-Marri,I have little difficulty concluding that he satisfiesthe first criterion. First, the allegations set forthin the Rapp Declaration, if true, clearly showthat al-Marri was on United States soil to com-mit acts of belligerency against the UnitedStates. See Quirin, 317 U.S. at 31 (stating thatunlawful combatants include those who commit“hostile acts involving destruction of life or prop-erty” on United States soil).

According to the Rapp Declaration, al-Marrialso meets what I view as the second require-ment of an enemy combatant: that the belligerentacts be carried out on behalf of an enemy force.Unlike the plurality, I cannot accept al-Marri’scontention that because he allegedly has ties onlyto al Qaeda, a terrorist organization that doesnot control any nation, he does not meet this por-tion of the definition of enemy combatant.

The plurality opinion may very well be correctthat, under the traditional “law of war,” personsnot affiliated with the military of a nation-statemay not be considered enemy combatants. And Irecognize the respect domestic courts have longafforded the “law of nations.” See Murray v.Schooner Charming Betsy, 6 U.S. (2 Cranch) 64,118 (1804) (“[A]n act of Congress ought never tobe construed to violate the law of nations if anyother possible construction remains.”). Here,however, Congress has, through the AUMF,addressed precisely this question by clearlyauthorizing the President to use force against“organizations,” as well as against nation-states.

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See Padilla v. Hanft, 423 F.3d 386, 395-96 (4thCir. 2005) (noting “the AUMF constitutes . . . aclear statement” in favor of detention). As a spe-cific and targeted congressional directive, theAUMF controls the question of who may bedetained, for purposes of domestic law—at leastwith respect to those individuals that fall withinits scope.

The AUMF grants the President power to useforce against “organizations” that he determines“planned, authorized, committed, or aided in” theSeptember 11 attacks. Al Qaeda is obviously an“organization” that “planned, authorized, com-mitted, or aided in” those attacks. Thus, in myview, the AUMF has labeled al Qaeda an enemyforce.4 See also Hamdi, 542 U.S. at 518 (“Therecan be no doubt that individuals who foughtagainst the United States in Afghanistan as partof the Taliban, an organization known to havesupported the al Qaeda terrorist network respon-sible for those attacks, are individuals Congresssought to target in passing the AUMF.”); Padilla,423 F.3d at 389 (defining “al Qaeda” as “an entitywith which the United States is at war”). In fact,al Qaeda provided the impetus for the enactmentof the AUMF. Indeed, “read in light of its purposeclause . . . and its preamble . . . , the AUMFapplies even more clearly and unmistakably to

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4 While I understand al-Marri’s concern that, taken toits extreme, the AUMF’s reference to organizations or per-sons who “aided in” the September 11 attacks might produceabsurd results, I do not believe we need linger on that con-cern in this case. According to the Rapp Declaration, al-Marri is a member of al Qaeda, which “planned,”“authorized,” and “committed” those attacks.

[al-Marri] than to Hamdi.” Padilla, 423 F.3d at396.

Certainly, the Constitution does not permit “amilitary trial . . . for any offence whatever of acitizen in civil life, in nowise connected with themilitary service.” Milligan, 71 U.S. at 121-22.However, the result in Milligan followed becausethe petitioner Milligan was not “part of or asso-ciated with the armed forces of the enemy,”Quirin, 317 U.S. at 45, and I see nothing in theConstitution that prohibits the President, oper-ating with the express consent of the Congress,from declaring an individual associated with anorganization that has undertaken acts of waragainst the United States to be an enemy com-batant. See Youngstown Sheet & Tube Co. v.Sawyer, 343 U.S. 579, 635 (Jackson, J., concur-ring) (noting Presidential power is “at its maxi-mum” when the President operates withCongressional authorization).

I wish to emphasize that by permitting thePresident to militarily detain al-Marri pursuantto the AUMF I am not being expansive; in al-Marri we are dealing with someone squarelywithin the purposes of the AUMF, which waspassed to target organizations, like al Qaeda,responsible for the September 11 attacks and toprevent future terrorist attacks. This case doesnot present what to me are more difficult issuesregarding enemy combatants and the scope ofAUMF, such as the status of an individual whojoined al Qaeda after September 11, 2001, or anindividual who is part of a designated foreignterrorist organization, see U.S. Dep’t of State,Office of the Coordinator for Counterterrorism,

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Foreign Terrorist Organizations Fact Sheet 2008(Apr. 8, 2008), http://www.state.gov/s/ct/rls/fs/08/103392.htm (last visited May 5, 2008), thatplayed no role in the September 11 attacks.Instead, al-Marri is clearly an “individual[ ]Congress sought to target in passing the AUMF.”Hamdi, 542 U.S. at 518. In addition, while“indefinite detention” of enemy combatants is notpermitted, see generally Hamdi, 542 U.S. at 519-20, we remain engaged against the forces of alQaeda in the border regions of Afghanistan tothis day.5

Moreover, it is important to note the breadth ofal-Marri’s argument. According to al-Marri, wereauthorities to have detained one of the hijackerson September 11, box-cutter in hand, thathijacker could have been militarily detained inthe immediacy of the situation, but thereafterwould have had to be turned over to civiliancourts.6 This result would follow despite the factthat the hijacker would have been poised to com-mit an act of war—in fact an act of unlawful bel-ligerency, see Quirin, 317 U.S. at 31—against theUnited States. The result also seems in tensionwith the Court’s reminder in Quirin that:

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5 I therefore need not address whether, if our militaryremained only engaged in the conflict in Iraq, al-Marri’songoing detention would be permitted under the AUMF.

6 Indeed, as I understand al-Marri’s argument, ifOsama bin Laden had been captured after September 18,2001, but before actual military operations in Afghanistantook place, he, too, would not be subject to military deten-tion.

By a long course of practical adminis-trative construction by its militaryauthorities, our Government has likewiserecognized that those who during time ofwar pass surreptitiously from enemy ter-ritory into our own, discarding their uni-forms upon entry, for the commission ofhostile acts involving destruction of lifeor property, have the status of unlawfulcombatants punishable as such by mili-tary commission.

Id. at 35.

B.

Notwithstanding the broad congressionalauthorization provided in the AUMF, al-Marriargues that Congress later circumscribed thePresident’s power of detention by passing thePatriot Act, Pub. L. 107-56, 115 Stat. 272 (2001)(entitled “Mandatory Detention of Suspect Ter-rorists; Habeas Corpus; Judicial Review”). ThePatriot Act, passed shortly after the AUMF, pro-vides, in relevant part, for the short term“[d]etention of [t]errorist [a]liens.” Patriot Act§ 412(a). The power to detain is vested in theAttorney General, but the Act prohibits “indefi-nite detention.” Instead, it requires that “notlater than 7 days after the commencement ofsuch detention,” the Attorney General musteither (1) begin “removal proceedings” or (2)“charge the alien with a criminal offense.” Id.§ 412(a). The Patriot Act does permit an exten-sion of “additional periods of up to six months” if

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removal is “unlikely for the reasonably foresee-able future” and the alien’s release “will threatenthe national security of the United States or thesafety of the community or any person.” Id.

Al-Marri argues that these more-specific pro-visions governing the scope of detentions governthe more-general authorization found in theAUMF. See Long Island Care at Home, Ltd. v.Coke, 127 S.Ct. 2339, 2348 (2007) (“[N]ormallythe specific governs the general.”); Warren v.N.C. Dept. of Human Resources, 65 F.3d 385, 390(4th Cir. 1995) (same). Of course, this maxim isonly true if the two provisions deal with the samesubject matter. Here, I view section 412 of thePatriot Act to refer to the President’s power,under Article II § 3, to “take Care that the Lawsbe faithfully executed.” U.S. Const., art. II, § 3.The statute refers to the Attorney General, thePresident’s agent in implementing the Take CareClause, and it is found nestled within the immi-gration code. Fairly read, the Patriot Act doesnot therefore purport to limit the President’s sep-arate Commander-in-Chief power. See Article II,§ 2, cl. 1 (“The President shall be Commander inChief of the Army and Navy of the United States,and of the Militia of the several States, whencalled into the actual Service of the UnitedStates.”). But the authorization granted in theAUMF, with its explicit reference to militaryforce, relates to the Commander-in-Chief power.Whatever limitations are present in the PatriotAct, therefore, do not restrict the separate anddistinct grant of power effected by the AUMF.

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C.

I am left with a simple set of facts: the AUMFgrants the President, who already has someinherent Article II power to wage war, see, e.g.,Chicago & S. Air Lines, Inc. v. Waterman S. S.Corp., 333 U.S. 103, 109 (1948) (“The President. . . possesses in his own right certain powersconferred by the Constitution on him as Com-mander-in-Chief and as the Nation’s organ in for-eign affairs.”), the power to use necessary andappropriate force against organizations and per-sons with a role in the September 11 attacks; theSupreme Court has stated that military deten-tion is a “fundamental incident of waging war,”Hamdi, 542 U.S. at 519; and, the Governmentalleges that al-Marri has been a member of alQaeda since at least 1996. I think it clear underthese circumstances that al-Marri can bedetained as an enemy combatant and agree withthe separate opinions of Judge Traxler, JudgeWilkinson, and Judge Niemeyer that so hold. Asthe Court wrote over half a century ago,

[T]he detention and trial of petitioners—ordered by the President in the declaredexercise of his powers as Commander inChief of the Army in time of war and ofgrave public danger—are not to be setaside by the courts without the clear con-viction that they are in conflict with theConstitution or laws of Congress consti-tutionally enacted.

Quirin, 317 U.S. at 25.

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Finding no such “clear conviction,” particularlygiven that the President is acting in concert withCongress, I would hold that the President, oper-ating pursuant to the AUMF, had the power todetain al-Marri as an enemy combatant.

II.

I do not agree, however, with Judge Traxler’sseparate concurrence, which concludes that aremand is necessary to permit al-Marri to furtherchallenge his detention. Instead, because al-Marri short-circuited the lower court’s attempt tocraft procedures meant to protect his due processrights, I would not reward his refusal to partici-pate with a remand. To the contrary, the magis-trate judge and district court judge are to becommended for the extent to which theyresponded to al-Marri’s concerns, and, indeedaccommodated his only specific request. In orderto explain this conclusion, I briefly revisit theproceedings below.

A.

On July 8, 2005, the district court entered anorder concluding that al-Marri could be detainedas an enemy combatant and referring the case tothe magistrate judge for development of theappropriate procedures.7 On August 15, the mag-istrate judge held a telephonic conference with

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7 Because of this assignment by the district court, mydiscussion focuses in large part upon the actions of the mag-istrate judge.

the Government and al-Marri’s attorneys to dis-cuss what procedures might be used in deter-mining whether al-Marri was an enemycombatant. During the hearing, the magistratejudge requested that both parties “brief . . . thequestion of whether the Government’s affidavitin this case is entitled to the presumption, asoutlined in Hamdi, and if so, what must the peti-tioner do to rebut the presumption.” (J.A. at 154.)

Following briefing from the parties, the mag-istrate judge entered an order on December 19,2005, setting forth suggested procedures foraddressing al-Marri’s detention. Citing to Hamdi,the magistrate judge concluded “it appears thatin the context of a classification of an individualas an enemy combatant by the Chief Executive,due process requires the petitioner receive noticeof the factual basis for his classification, and afair opportunity to rebut the government’s fac-tual assertions by presenting more persuasiveevidence before a neutral decisionmaker.” (J.A.at 182.) To this end, the magistrate judge indi-cated it would “review the government’s credibleevidence in the form of affidavits, such as theMobbs Affidavit in the Hamdi case,” and thenwould review “any responsive rebuttal evidencein the form of affidavits and documents” from al-Marri. (J.A. at 182.) The magistrate judge alsonoted “[a]dditional guidance by the court inHamdi indicates that presumption in favor of thegovernment may be appropriate and hearsay mayneed to be accepted.” (J.A. at 179.) Thereafter,however, the magistrate judge made no furtheruse of the word “presumption,” and insteadexplained that “[i]f the petitioner is unable to

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produce more persuasive evidence than that pro-duced by the government, the inquiry will endthere.” (J.A. at 183.) If, however, al-Marri putforth “more persuasive evidence than that pro-duced by the government,” something more akinto a “full-blown adversarial hearing” would occur.(J.A. at 183 (emphasis added).)

In describing the protections that might attendto such a hearing, the magistrate judge noted, forinstance, that objections under the Federal Rulesof Evidence to material “gathered on the field ofbattle,” might be inappropriate but “might lie asto domestic evidence obtained by law enforce-ment in the course of the war on terror.” (J.A. at184.) After finding that the Government hadindeed provided al-Marri notice of the factualbasis of his classification in the form of the RappDeclaration, the magistrate judge concluded theorder by requiring al-Marri to file “any rebuttalevidence within sixty days.” (J.A. at 184.)

After the district court withheld ruling on themagistrate judge’s order until the proceduresbefore the magistrate judge concluded, al-Marrifiled a response to the magistrate judge’s order,stating that, without being permitted to reviewthe Rapp Declaration in full, he was unable torespond as required by the December 19, 2005order. The magistrate judge agreed, and on April5, 2006, the Government filed a declassified copyof the Rapp Declaration. On May 4, 2005, al-Marri filed his response, contending that “he isunable to disprove the allegations contained inthe Rapp declaration because he has been deniedthe opportunity to see the evidence upon whichthe allegations are based.” (J.A. at 231.) The

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response further stated that al-Marri “hasdenied” and “continues to deny” the Govern-ment’s allegations. (J.A. at 230-31.) Al-Marri’sresponse concluded by noting that “Petitionerrespectfully declines at this time the Court’sinvitation to prove his own innocence, a burdenthat is unlawful, unconstitutional, and un-Amer-ican.” (J.A. at 231.)

The magistrate judge entered a Report andRecommendation on May 8, recommending dis-missal of al-Marri’s § 2241 claim. It began by ref-erencing its earlier order and summarizing theRapp Declaration, explaining that the “issue hereis which is more persuasive on the issue ofwhether the petitioner falls outside the enemycombatant criteria, the government’s credibleevidence or the responsive rebuttal evidencewhich the petitioner wishes to present, with spe-cial attention to the ‘risk of erroneous depriva-tion.’ ” (J.A. at 243 (emphasis added).) Themagistrate judge proceeded to note al-Marri’sstatement that he declined “at this time” to sub-mit evidence and his attendant failure to putforth anymore than a general denial of the Gov-ernment’s allegations.

It summarized: “Al-Marri brought this actionand has now refused to participate in a mean-ingful way. As a result, there is nothing specificbefore the court to dispute even the simplest ofassertions which al-Marri could easily dispute,were they not accurate.” (J.A. at 244.) For exam-ple, “Al-Marri present[ed] no information con-cerning his graduate studies and [did] notdispute or offer easily obtainable evidence tocounter the assertion that by December 2001 he

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had rarely attended classes and was in a failingstatus.” (J.A. at 244.) The magistrate judgeexpressed frustration with al-Marri’s failure toengage “fact-finding procedures that are intendedto be both prudent and incremental,” (J.A. at248), and recommended that al-Marri’s § 2241petition “be dismissed,” (J.A. at 249.) In so doing,the magistrate judge concluded that “it appearsto the court that the Executive Declaration ismore persuasive than Petitioner’s general denial. . . and there is no basis for concluding that anerroneous deprivation has occurred.” (J.A. at248.)

Following a de novo review, the district courtadopted the magistrate judge’s Report “to theextent” it was consistent with the district court’sorder. (J.A. at 355.) In analyzing al-Marri’s peti-tion, the district court concluded that the frame-work created by Hamdi applied, that it wouldentertain a presumption in favor of the Govern-ment’s evidence, and that once the Governmentput forth credible evidence the burden moved toal-Marri to “rebut that showing with more per-suasive evidence.” (J.A. at 347 (internal quota-tion marks omitted).) The district court firstdiscussed the Rapp Declaration and rejected al-Marri’s contention that, at the preliminary fact-finding stage, the Government could not rely ona hearsay declaration; it determined that“hearsay may be used to satisfy the Govern-ment’s burden of providing an alleged enemycombatant with notice of the factual allegationsagainst him.” (J.A. at 349.) The Rapp Declarationwas thus permissible “at the initial phase,” (J.A.at 349) and the district court expressly noted

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“[w]hether the Rapp Declaration would be admis-sible during the later phases of such a proceedingis not a question before the Court today.” (J.A. at351.)

The district court found that the Rapp Decla-ration “met [the Government’s] burden of pro-viding a factual basis in support of [al-Marri’s]classification and detention as an enemy com-batant.” (J.A. at 352.) The district court, like themagistrate judge, then recounted al-Marri’s com-plete refusal to offer anything more than a gen-eral denial. Finding that al-Marri’s “stance . . .ignores his responsibility to prosecute thishabeas action,” the district court then orderedthe dismissal of al-Marri’s § 2241 petition. (J.A.at 354.)

B.

In Hamdi, the Court provided three avenues ofguidance for lower courts when consideringfuture enemy combatant cases. First, the Courtnoted that due process requires that an “enemycombatant must receive notice of the factualbasis for his classification, and a fair opportunityto rebut the Government’s factual assertionsbefore a neutral decisionmaker.” Hamdi, 542U.S. at 533. Second, the Court noted that “§ 2241and its companion provisions provide at least askeletal outline of the procedures to be affordeda petitioner in federal habeas review.” Id. at 525.Thus, “Congress envisioned that habeas peti-tioners would have some opportunity to presentand rebut facts and that courts in cases like thisretain some ability to vary the ways in which

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they do so as mandated by due process.” Id. at526. Finally, the Court explained that whateverprocess is to be utilized, it must be carried outwith “caution,” and be “both prudent and incre-mental.” Id. at 539.

In this case, the magistrate judge, and laterthe district court, attempted to follow those guid-ing principles. First, both the magistrate judgeand district court remained ever-cognizant ofHamdi’s command that the enemy combatant beprovided notice and an opportunity to be heard,structuring the proposed procedures around thatcommand. I see nothing in Hamdi that forbids asworn statement—like the Rapp Declaration—from providing sufficient “notice” of the allega-tions against al-Marri. Moreover, as noted, themagistrate judge required the Government toprovide al-Marri the declaration in response tohis request.

With respect to the Supreme Court’s guidancethat the process resemble customary habeasreview, the procedures the magistrate judge pro-posed for handling the initial stage of the pro-ceedings—which the district court later adoptedin substantial part—in many ways mirrored tra-ditional habeas practice under 28 U.S.C.A. § 2254and § 2255 by requiring both parties to put forthaffidavits and other materials for an initialdetermination of which party’s presentation wasmore persuasive.

In this regard, the initial procedures adoptedby the magistrate judge also hewed to the com-mon precept that “the habeas petitioner gener-ally bears the burden of proof.” Garlotte v.Fordice, 515 U.S. 39, 46 (1995); see, e.g., Vega v.

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U.S., 493 F.3d 310, 319 (3d Cir. 2007) (noting inadopting rule for sentencing credit cases under§ 2241 that “[a]s with any habeas petition, thistest puts the initial burden on the prisoner toshow his right to relief”). Again, this approachappears consistent with the guidance provided inHamdi, that § 2241 and its companion provisionsmay provide an outline for how to proceed inenemy combatant cases.

Finally, and most importantly, Hamdi stressedthe need for a “prudent” and “incremental” pro-cess. The magistrate judge proposed just that,outlining an iterative process in which al-Marrifailed to participate “in any meaningful way.”(J.A. at 244.) Indeed, as the magistrate judgenoted, al-Marri refused to deny allegations in theRapp Declaration that were peculiarly within al-Marri’s knowledge. He failed to dispute even theassertion that he was performing poorly inschool. It is simply beyond the pale for al-Marrito contend that he was unable, without furtherdiscovery from the Government, to put forth evi-dence that he did or did not attend class. By fail-ing to participate, Al-Marri simply short-circuitedthe entire “incremental” process.

I am unwilling to criticize the lower courts for,in essence, failing to be more creative. Hamdi isthe only Supreme Court case providing any guid-ance on habeas procedures in enemy combatantcases, so it was only natural for the lower courtsto start with Hamdi’s framework. The magistratejudge was faced with al-Marri’s position that onlya criminal trial was adequate—a position thatoverlooked the fact that, under Hamdi, once thedetention question is answered in the affirma-

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tive, it a fortiori follows that a criminal trial isnot required. The magistrate judge reiterated itsconcern with al-Marri receiving a factual basisfor his classification and having the opportunityto respond before a neutral decisionmaker. Themagistrate judge then set forth a proposed two-stage process similar to the normal procedures ofa habeas action that would have, if fully imple-mented, given al-Marri procedures far beyondthose adopted in Hamdi, including discovery. Butthis process was not implemented fully preciselybecause al-Marri refused to participate in theproceedings, proceedings that contemplated theactive participation of al-Marri—the habeas peti-tioner. Thus, it is because of al-Marri’s ownactions that we are here today, unsure of howthose procedures would have worked. Given thatthe procedural posture of this case is a result ofhis own intransigence, I would not reward al-Marri, the petitioner and the party with the bur-den of prosecuting his habeas action, with aremand.

Judge Traxler, in contrast, believes the realproblem is that the magistrate judge and districtcourt engaged in a presumption in favor of theGovernment’s evidence. Indeed, after recountingthe detailed allegations of the Rapp Declaration,the district court “[a]fford[ed] this evidence afavorable presumption,” (J.A. at 352), and foundthat the Government had met its initial burden,shifting the burden to al-Marri to rebut the Gov-ernment’s factual case against him. This “pre-sumption” was nothing more than a finding thatthe Government’s evidence was sufficient to moveto the next step in the “incremental” fact-finding

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process—a process common to traditional habeaspractice and embraced by Hamdi as the recipe forfuture cases. Beyond this initial stage, we simplydo not know how the Government’s evidencewould have later been treated by the districtcourt had al-Marri not declined to participatefrom the start.

C.

In sum, I am certainly sympathetic to the con-cerns laid out by Judge Traxler that Americancitizens and resident aliens apprehended anddetained on American soil have access to proce-dures to safeguard their due process rights, andI would likely view this case quite differently if Ibelieved that the magistrate judge had presumedal-Marri to be an enemy combatant from thestart. I likewise find merit in Judge Wilkinson’sposition that we not force the Government torelease information bearing on national securityunnecessarily. I simply find it unnecessary, in al-Marri’s case, to try to strike this delicate bal-ance. The magistrate judge suggested an“incremental” procedure that mirrored tradi-tional habeas actions and would have, had al-Marri simply supplied “more persuasive”evidence in the form of affidavits and documents,ultimately provided al-Marri with process farbeyond that required by Hamdi. In that context,al-Marri’s total refusal to assist the magistratejudge is inexcusable. Because al-Marri has“hoist[ed] [himself] with his own petar,” WilliamShakespeare, Hamlet Act 2, sc. 2, I would notremand the case for further proceedings.

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III.

I would thus affirm the district court’s denialof al-Marri’s § 2241 petition.8

Judge Duncan has authorized me to indicatethat she joins in this opinion.

WILKINSON, Circuit Judge, concurring in partand dissenting in part:

I respectfully dissent from the reversal of thejudgment. I agree that we possess jurisdiction toentertain al-Marri’s habeas petition. I alsobelieve the district court to be right in allrespects and that its judgment dismissing thepetition should be affirmed.

I wish to express my respect for those who seethis matter differently. I admire the skill withwhich my fine colleagues and the principal andamicus briefs have argued the case for reversal,and I respect the sense of conviction and princi-ple that animates their views. I realize too thatthe opinions in this case are lengthy, but thatreflects nothing more than the conscientiousattention each member of the court has giventhis important case.

I quite disagree with the reversal of the judg-ment. I believe that Congress in the AUMF has

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8 Although I, like Judges Wilkinson, Niemeyer, andDuncan, would decide this case differently than the plurality(Judges Michael, Motz, King, and Gregory) and JudgeTraxler, I want to express my deepest respect for theirviews. My colleagues’ efforts in this case are to be com-mended.

authorized the military detention of al-Marri andthat al-Marri has received the process he is due.

I recognize that the military detention of some-one lawfully in this country is a momentous step,but a refusal to recognize Congress’s ability toauthorize such a detention in these circum-stances would be more momentous still. The pre-sent case reminds that we live in an age wherethousands of human beings can be slaughteredby a single action and where large swaths ofurban landscape can be leveled in an instant. Ifthe past was a time of danger for this country, itremains no more than prologue for the threatsthe future holds. For courts to resist this politi-cal attempt to meet these rising dangers risksmaking the judiciary the most dangerous branch.

I say this not as an exhortation to panic orfear, but rather as a call for prudence. Theadvance and democratization of technology pro-ceeds apace, and our legal system must showsome recognition of these changing circum-stances. In other words, law must reflect theactual nature of modern warfare. By placing somuch emphasis on quaint and outmoded notionsof enemy states and demarcated foreign battle-fields, the plurality (the opinion authored byJudge Motz) and concurrence (the opinionauthored by Judge Traxler) misperceive thenature of our present danger, and, in doing so,miss the opportunity presented by al-Marri’s caseto develop a framework for dealing with new dan-gers in our future. There is a way to respect bothour commitment to liberty and the need for secu-rity without which liberty cannot flourish. But itis not the way my fine colleagues have chosen,

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and I must respectfully dissent from the reversalof the judgment.1

The essence of the plurality’s view is that lawdeprives this country of those means of adjust-ment that the political branches deem essentialto success in the struggle against those wholaunched and prepare again to launch attacksagainst America. I am happy indeed that the plu-rality did not prevail in its view that the AUMFfails to authorize the military detention at issuein this case. That the judiciary should embrace asense of rigidity and complacency not elsewherereflected in our democratic process seems both anexpansion of judicial warrant and a course of

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1 Given the nature of the court’s judgment in this case,the matter of how to designate my colleagues’ views hasproven somewhat difficult. This is largely because the so-called Screws rule, adopted by Judge Motz and those whojoin her opinion, has traditionally been invoked by a smallergroup of judges (usually one or two) joining the judgment ofa larger number, rather than vice versa. See Screws v.United States, 325 U.S. 91, 113 (1945) (Rutledge, J., con-curring in the result); see also, e.g., Hamdi v. Rumsfeld, 542U.S. 507, 553 (2004) (Souter, J., with Ginsburg, J., concur-ring in part, dissenting in part, and concurring in the judg-ment); US Airways, Inc. v. Barnett, 535 U.S. 391, 408 (2002)(O’Connor, J., concurring); Olmstead v. L.C. ex rel. Zimring,527 U.S. 581, 607-08 (1999) (Stevens, J., concurring in partand concurring in the judgment). Despite the “reverse-Screws” wrinkle of this case, I refer to the opinion authoredby Judge Motz as the plurality because her opinion enjoysthe largest number of judges in support of the ultimate judg-ment. Likewise, I refer to the opinion authored by JudgeTraxler as the concurrence, inasmuch as he has not joinedthe plurality. For the sake of clarity, I refer to the otheropinions filed in this case by the name of the author.

error that may lead to tragic results and lastingregrets.

By ignoring the AUMF’s plain language andpatent meaning, the plurality comes all too closeto holding that no person lawfully in the UnitedStates may be seized as an enemy combatant andsubjected to military detention, and certainly notsubjected to detention of any appreciable length.That to me is the plain import of the plurality’sview, and its interpretation of the AUMF notonly undermines Congress’s intent but also sug-gests that the “serious constitutional questions”underlying the case compel a ruling in al-Marri’sfavor. Ante at 20.

Similarly, the concurrence, by forsaking theburden-shifting scheme established in Hamdiand imposing more rigorous procedural protec-tions at the very outset of enemy combatant pro-ceedings, implies that something more akin to acriminal trial is in order. In so doing, the con-currence accomplishes through constitutionalinterpretation much of what the pluralityattempts to accomplish through statutory con-struction: an erosion of the elected branches’ability to pursue the current conflict in accor-dance with the laws of war.

The plurality and the concurrence thus bothoverlook the fact that our Constitution is a featof architecture as well as a charter of cherishedrights. To overlook the constitutional allocationof authority to Congress and the President inthis case is to replace the Framers’ design withour own precarious arrangements.

Moreover, with their judgment, the pluralityand the concurrence abandon any recognized

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understanding of procedural due process andleave this case totally up in the air. The touch-stone of procedural due process has always beenaccuracy. The plurality and concurrence, how-ever, now mandate the imposition of some uncer-tain quantum of procedures despite the fact thatal-Marri, although represented by counsel andgiven every opportunity by the trial court to doso, did not cast the slightest doubt on any of thegovernment’s extensive declarations. Additionalprocedures may of course be required when theaccuracy of the government’s evidence is calledinto question, and the burden on al-Marri in thisregard is not high. Imposing additional processat the outset, however,—completely untetheredfrom any need to ensure accuracy—will lead tomore graymail, more fishing expeditions, andmore thrashing litigiousness, all without any cor-responding benefit in terms of reliable determi-nations or practical effect. Moreover, this novelprocedural approach provides the district courtwith precious little direction on remand. I simplyhave no idea what constitutes “the most reliableavailable evidence,” ante at 8, nor do I knowwhat procedures should be used to determinewhether the government’s evidence meets thisstandard. The district court will be similarlymystified.

The problem presented here is greater than al-Marri’s case and even than 9/11. The sources ofthis nation’s vulnerability—its long borders, itsmultiple ports of entry, its densely-packed cities,the dispersions of lethal materials, the march ofadvancing technologies, and the widening dis-tribution of knowledge as to the means and

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implements of mass destruction—long predatedSeptember 11th and will long continue even asthe events of that day recede in memory.

Some of the scenarios are discounted as far-fetched, until suddenly they are not. Nucleardevices capable of inflicting enormous casualtiescan now fit inside a suitcase or a van. Congresscan and has made clear that the use of such adevice by persons or groups associated with the9/11 attacks would be more akin to an act of warthan to ordinary crime. Regrettably, however, theplurality and, to a somewhat lesser extent, theconcurrence regard these acts quite differently—as mere criminal offenses to be tried through thecriminal justice process or something that willbecome increasingly its equivalent. This reluc-tance to allow Congress to distinguish betweenwar and crime will hinder the elected branches intheir effort to tame the true tragedy of moderntimes: the indiscriminate slaughter of innocentlife.

The events of 9/11 have afforded us an oppor-tunity to address these non-chimerical concernsand to build a framework for this most dangerousfuture. Congress in the AUMF and the SupremeCourt in Hamdi provided us with building blocksfor a set of post-9/11 legal principles. By forsak-ing the evident intent of the AUMF, and depart-ing from the Hamdi framework, however, theplurality and concurrence have missed thisopportunity. It is for this reason too that I dis-sent in this case.

This need for some legal framework is not justan opportunity. It is our obligation. The militarydetention of American citizens or aliens lawfully

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within this country is a huge step. It is a mistaketo take this step without asking where the jour-ney leads. A failure to locate enemy combatantdetentions within a general or principled frame-work will serve only to heighten concerns thatopen-ended detentions of American citizens lie inthe offing. A principled framework, by contrast,addresses the limits of executive authority. Whilea minimalist method has much to commend it inmany circumstances, it has its drawbacks here.This is not an area where ad hoc adjudicationprovides either guidance or limits, and it leavesthe most basic values of our legal system—libertyand security—in limbo.

I thus have some points of difference with eachof my good colleagues. I do not agree with theplurality, as I believe the AUMF does authorizeal-Marri’s detention. I do not agree with the con-currence or Judge Gregory, as I believe that al-Marri received the process he was due. I do notagree with the Chief Judge or Judge Niemeyerthat we can resolve a question of this order ofmagnitude—namely the military detention ofAmerican citizens or lawful aliens in this country—without addressing the serious constitutionalissues that attend such a move. If I couldapproach this whole question in such a fashion, Iwould surely do so. But the Supreme Court’srecent decision in Boumediene v. Bush, 553 U.S.___(2008), demonstrates that even coordinatedaction by the democratic branches is subject toconstitutional limits. Indeed, the scope of theexecutive’s detention authority turns not only on“whether the AUMF authorizes,” but also on

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whether “the Constitution permits,” militarydetention to take place. Id. at 59.

The danger of ignoring this constitutionalinquiry is that we would proceed through incre-ments and accretions to a system that featurescontradictory court rulings on military deten-tions throughout our land, gives no notice toCongress or the executive as to what the per-missible boundaries of enemy combatant deten-tions might be, and, at worst, ends up inflictinggrave damage to the constitutional fabric at theend that none of us intended at the start. Farbetter, it seems to me, to at least start this jour-ney with a map, lest this case of first impressionbecome an aimless voyage.

The plurality derides this attempt to delineatea constitutional framework as a policy-basedexercise in “inventi[on].” Ante at 8; see also anteat 20-21 n.9, 43-44. But the policymaking in thiscase comes from those who would aggressivelyinterfere with democratic prerogatives in the con-text of armed struggles, not from those whowould interpret our foundational document witha proper respect for separation of powers and aproper demonstration of judicial restraint. Thepolicymaking in this case comes from those whowould so torture the text of the AUMF as to ren-der it inapplicable even to al Qaeda members sit-uated identically to those who perpetrated the9/11 attacks. I certainly do not hold the positionreflected in the judgment that courts shouldcounteract Congress’s plain intention or con-struct some set of unspecified procedures accord-ing to judicial designs. At the same time, thejudiciary plays a vital role in ensuring that

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enemy combatant detentions are consistent withthe constitutionally prescribed war powers andnot a subterfuge for circumventing our cherishedBill of Rights. I make no apologies for regardingthe restraint of the third branch as the startingpoint for all my inquiries in matters pertainingto the conduct of war. I make no apologies eitherfor recognizing that there are constitutional lim-its on the military detention power and for tryingto determine what they are.

I shall thus attempt to provide some frame-work as to why al-Marri’s detention is lawful andwhy, at the same time, the military detentionauthority is anything but open-ended. My ownopinion proceeds as follows. In Section I, I dis-cuss why the AUMF applies on its own terms tojustify al-Marri’s detention. In Section II, Iaddress the basic premise of al-Marri’s argu-ment—that formal criminal charges are requiredin order for the government to detain him. InSection III, I address the serious constitutionalquestions that arise from, as well as the limitsthat apply to, the military detention of a citizenor lawful alien apprehended on American soil. InSection IV, I address my concurring colleague’sargument that the procedures afforded al-Marriwere constitutionally deficient. Finally, in Sec-tion V, I discuss, in a larger sense, why the dis-missal of al-Marri’s petition can be squared withAmerica’s cherished legal heritage.

To reverse this judgment because al-Marri wasnot captured on a foreign battlefield or foreignsoil is akin to a judicial declaration thatCongress and the executive may fight only thelast war. This is wrong. Access to the courts is

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important, and I would certainly provide it here.But litigation is not the only friend of liberty.Democracy is a guarantor of human life and free-dom, too.

I thus have no doubt that this detention is law-ful. This detention has been authorized byCongress. This detention is, and remains, subjectto judicial oversight. This detention is a directoutgrowth and response to massive attacks onthe U.S. homeland. This detention is consistentwith Supreme Court precedent. This detention isin accordance with the laws of war. And thisdetention should be sustained.

I. THE AUMF AUTHORIZES THEDETENTION OF AL MARRI.

On September 18, 2001, one week after themost devastating attack on the U.S. homeland inits history, Congress passed the Authorizationfor Use of Military Force (“AUMF”). The plural-ity recognizes—as it must—that the AUMFauthorizes the President to order the militarydetention of enemy combatants. See ante at 23-24(Motz, J., concurring in the judgment). The plu-rality also notes that the primary issue before usin this case is whether the petitioner, Ali SalehKahlah al-Marri, is an enemy combatant withinthe meaning of the AUMF. See ante at 12-13.

Despite spending much of its opinion inter-preting the AUMF, however, the plurality barelydiscusses the AUMF’s purpose, so plainlyreflected in its text: to hold those responsible forthe September 11th attacks accountable, and toprevent similar acts of terrorism from ever hap-pening again. This omission is telling. By failing

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to appreciate the entire reason for the AUMF,the plurality is able to produce an incredibleresult: it interprets the AUMF so that even the9/11 attackers themselves would not be consid-ered enemy combatants under it.

The plurality’s conclusion is a paradox withoutparallel. A resolution designed to address a prob-lem is read to leave the problem unaddressed.The reach of a resolution responding to hijackeddomestic flights aimed at domestic targets anddesigned to inflict massive domestic casualties isconfined to a foreign battlefield. In holding thatthe 9/11 hijackers would not be enemy combat-ants within the meaning of the foremost con-gressional response to 9/11, the plurality deniesthe legislative branch the ability to mean what itsays. It deprives not only this congressionalaction of effect, but, in essence, grants the judi-ciary an expanding veto over future congres-sional efforts to protect this country.

To appreciate fully the error of the plurality’sways, one need consider nothing more than theAUMF itself, which, in the more than six yearssince its passage, has never been amended, muchless rescinded:

[T]he President is authorized to use allnecessary and appropriate force againstthose nations, organizations, or personshe determines planned, authorized, com-mitted, or aided the terrorist attacks thatoccurred on September 11, 2001, or har-bored such organizations or persons, inorder to prevent any future acts of inter-national terrorism against the United

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States by such nations, organizations orpersons.

AUMF, Pub. L. No. 107-40, 115 Stat. 224 (2001).The AUMF grants the President broad power:

the power to use “all necessary and appropriateforce” to prevent “any” future acts of terrorism bythose who perpetrated the September 11thattacks and their affiliates. The President’spower is not limited temporally: he may use forceagainst those who “planned” 9/11 as well as thosewho prepare “future” acts of terrorism. Nor is thePresident’s power limited geographically: thepreamble of the AUMF specifically directs thePresident “to protect United States citizens bothat home and abroad.” Id. (emphasis added).Finally, recognizing the new security risks pre-sented by global terrorist organizations, such asal Qaeda, and global terrorists, such as Osamabin Laden, the AUMF authorizes the President touse force against not only the “nations,” but alsothe “organizations” and “persons,” that wereresponsible for the September 11th attacks.

Al-Marri does not so much as dispute the alle-gations against him, which we are obliged there-fore to credit for purposes of this case. See anteat 6, 12. According to the Rapp Declaration, inwhich the government details the evidence sup-porting the detention of al-Marri as an enemycombatant, al-Marri was closely associated withal Qaeda, the terrorist organization that perpe-trated the September 11th attacks. Al-Marriattended an al Qaeda terrorist training camp inAfghanistan for fifteen to nineteen months, andsubsequently cultivated relationships with the

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most senior members of the al Qaeda organiza-tion: he met personally with Osama bin Ladenand volunteered to martyr himself for the alQaeda cause; he entered the United States as asleeper agent under the direction of KhalidShaykh Muhammed, the mastermind of the 9/11attacks; and he received substantial funding forhis mission from Mustafa Ahmed al-Hawsawi,the financial facilitator of 9/11. Id. at 11.

And that is not all. Al-Marri was actively plan-ning terrorist attacks at the time of his arrest inthe United States. Before he was apprehended,al-Marri had been gathering technical informa-tion about poisonous chemicals on his laptop, andwas in communication with both Muhammed andal-Hawsawi. Id. Moreover, he had undertakenefforts to obtain false identification, credit cards,and banking information, including stolen creditcard numbers. Id.

It should be clear that al-Marri is the paradigmof an enemy combatant under any reasonableinterpretation of the AUMF. When Congressdirected the President to “use all necessary”force—including the power of military deten-tion—“to prevent any future” attacks by those“organizations” responsible for 9/11, it must cer-tainly have targeted al Qaeda “sleeper agents”planning similar attacks in the United States. Tosay that Congress did not have persons such asal-Marri in mind is to say that Congress had verylittle in mind at all.

In what I suppose is intended as a criticism,the plurality says I would give full effect to the“broad language” of the AUMF. Ante at 48. But ofcourse. Judges take and treat with respect what

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Congress gives them. I do not pretend that thereare not hard cases under the AUMF: for example,if the President were to detain an alleged ter-rorist with more tenuous links to al Qaeda ormore ambiguous intentions than al-Marri has.There are indeed difficult questions as to thereach of the authority Congress has conferredupon the President. But the possibility of hardcases does not hide the fact that this case fitssquarely within the bounds of the AUMF. Al-Marri was indisputably a member of al Qaeda,and he was indisputably planning terroristattacks to kill American citizens and destroyAmerican property. If al-Marri is not an “enemycombatant” under the AUMF, then who is?

The plurality’s view also rests on four faultypremises. First, the plurality erroneously assertsthat al-Marri cannot be considered an enemycombatant because the government has “neveralleged that he is a member of any nation’s mil-itary [or] has fought alongside any nation’sarmed forces.” Ante at 6 (emphasis added). Theplurality bases this “nation” affiliation require-ment on a misguided reading of the SupremeCourt’s opinion in Hamdi v. Rumsfeld, 542 U.S.507 (2004) (plurality op.), and our circuit’s opin-ion in Padilla v. Hanft, 423 F.3d 386 (4th Cir.2005), which relied heavily on Hamdi. Accordingto the plurality, a relationship with the Taliban,“the de facto government of Afghanistan at thetime,” ante at 23, was critical to each court’s ulti-mate holding that the petitioner could be classi-fied as an enemy combatant. Thus, the pluralitycontends, absent such an affiliation with anenemy nation, an individual cannot qualify as an

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enemy combatant. Ante at 25-26, 27 (assertingthat enemy combatant status rests on an indi-vidual’s “affiliation with the military arm of anenemy nation”).

The plurality’s “nation” affiliation requirementfinds no basis in the text of the AUMF, misreadsthe opinions in Hamdi and Padilla, and fails torecognize the backdrop against which the AUMFwas passed. As noted earlier, the AUMF statesquite explicitly that “the President is authorizedto use all necessary and appropriate forceagainst those nations, organizations, or persons”responsible for the September 11 attacks. AUMF,115 Stat. 224 (emphasis added). Thus, the plu-rality’s notion that enemy combatants under theAUMF must be affiliated with a “nation” at warwith the United States flatly contradicts theAUMF’s text.

Furthermore, the plurality erroneously limitsthe scope of the holdings in Hamdi, and thereforePadilla. According to the plurality, under thesetwo cases, “affiliation with the military arm of anenemy nation” is a necessary condition for beinglabeled an enemy combatant under the AUMF.Ante at 26 (emphasis added).

Of course, the petitioners in both Hamdi andPadilla were at one time affiliated with Talibanunits in Afghanistan. See ante at 23, 24. How-ever, neither the Hamdi Court nor the Padillacourt made this fact the lynchpin of its decision.For instance, in Hamdi, the Supreme Court madevery clear that its decision only answered “thenarrow question” of whether the detainee, basedon the facts alleged, could be classified as anenemy combatant. Hamdi, 542 U.S. at 516. The

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Court never indicated that those facts circum-scribed the outer bounds of the enemy combatantcategory. Id. at 517.

In fact, Hamdi specifically noted that the “per-missible bounds of the [enemy combatant] cate-gory will be defined by the lower courts assubsequent cases are presented to them.” Id. at522 n.1. If the facts alleged in Hamdi were, asthe plurality suggests, binding requirements forenemy combatant status, then the Court’s obser-vation and directive to lower courts would havebeen unnecessary. Thus, any claim that Hamdisets forth the exclusive requirements of theenemy combatant category has a problem: it can-not be reconciled with the Court’s own state-ments.

Finally, the plurality’s “nation” affiliationrequirement ignores the context in whichCongress passed the AUMF. When interpretinglegislation that authorizes the use of forceagainst both “nations” and “organizations,” Istruggle to find any meaningful distinctionbetween affiliating with a so-called “de facto gov-ernment,” like the Taliban, and affiliating with aterrorist organization like al Qaeda. This is par-ticularly true given the fact that, in many ways,it is impossible to distinguish al Qaeda from a“de facto government”:

[It] has a standing army; it has a trea-sury and a consistent source of revenue;it has a permanent civil service; it has anintelligence collection and analysis cadre;it even runs a rudimentary welfare pro-gram for its fighters, and their relatives

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and associates. It has a recognizablehierarchy of officials; it makes allianceswith other states; it promulgates laws,which it enforces ruthlessly; it declareswars.

Philip Bobbit, The Shield of Achilles 820 (2002).

The second faulty premise of the plurality isthe erroneous claim that al-Marri does not qual-ify as an enemy combatant because he was notallegedly “seized on, near, or having escapedfrom a battlefield on which the armed forces ofthe United States or its allies were engaged incombat.” Ante at 11 (emphasis added). This pur-ported “battlefield” requirement is also based onthe plurality’s mistaken interpretation of Hamdiand Padilla. See ante at 23 (noting that Hamdiwas captured on a battlefield); id. at 24-25 (not-ing that Padilla had been on a battlefield).

Although I will discuss the relevance of thebattlefield in more detail later, it suffices for nowto say that the plurality’s “battlefield” require-ment also does not comport with the text of theAUMF, relevant case law, or the context in whichthe AUMF was enacted. It is every bit as much agloss on the AUMF as the “nation” affiliationrequirement is—and every bit as misplaced.

To begin, the text of the AUMF is in no wayrestricted to those persons who have fought orseen action on a foreign battlefield. As mentionedearlier, the AUMF contains no such location lim-itation and specifically states that its animatingpurpose is to “protect United States citizens bothat home and abroad.” AUMF, 115 Stat. 224.While the plurality attempts to support its con-

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clusion that the AUMF was not meant to operate“right here in the United States” with statementsmade by members of Congress more than fouryears after the passage of the AUMF, see ante at40, I would hope the judicial branch wouldrespectfully bypass post-hoc commentary by dis-tinguished members of the legislative branchintended either to expand or restrict or otherwisereinterpret what Congress plainly expressed andjust as plainly stands by.

Next, although Hamdi and Padilla had seenaction on a battlefield, such a factor represents apotentially sufficient condition, not a necessaryone, for qualifying as an enemy combatant underthose cases. An absolute requirement that some-one must have been on a battlefield in order toreceive enemy combatant status would run head-long into Ex parte Quirin, 317 U.S. 1 (1942). Inthat case, the Nazi saboteurs were not capturedon or near a battlefield, but rather in the UnitedStates, after surreptitiously entering “fromenemy territory into our own.” Id. at 35. TheCourt held that even though they had not“entered the theatre or zone of active militaryoperations,” i.e. the battlefield, the saboteurswere properly detained as enemy combatants. Id.at 38.

Finally, the notion that enemy combatants canonly be found on the battlefield is completelyantithetical to Congress’s purpose for passing theAUMF. The September 11th hijackers targetedcivilians on American soil, not a foreign battle-field. The thousands slaughtered in the TwinTowers, the Pentagon, and aboard United Flight93 were not on any battlefield. To condition the

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enemy combatant category on battlefield partic-ipation is simply wrong.

Third, the plurality appears to be influenced bythe fact that the length of the current struggle“has no bounds” and thus the current detentionmay be an “indefinite” one. See ante at 62. I doappreciate the plurality’s concern in this regard.No formal armistice with al Qaeda or its off-shoots is in the offing, and while 9/11 marked thebeginning of widespread awareness that we wereat war, no similarly defining event is likely tomark the end. But as much as I respect the plu-rality’s concern on this point, I cannot ultimatelyaccept it, because it is tantamount to an asser-tion that Congress should have repealed theAUMF or limited its duration, which Congresshas not done.

There is in fact nothing in the text of theAUMF that limits the duration of its operationalforce—it applies both retrospectively to bringthose responsible for 9/11 to justice and prospec-tively to prevent future attacks. And as noted,Congress has not repealed the AUMF or modifiedits language in any way. I am not prepared tosecond guess its judgment. There is evidence thatal Qaeda, which has announced an intent tolaunch further attacks upon America, is not adegraded force but a reconstituted one, operat-ing, among other places, in the Waziristanregions of northwest Pakistan. See, e.g., ScottShane, Same People, Same Threat, N.Y. Times,July 18, 2007, at A1. Whatever the case may be,it is surely within the ambit of constitutionaljudgment for Congress to conclude that theAUMF should continue in effect and that an

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ongoing threat must be met with an ongoing res-olution.

Until the AUMF undergoes some change fromthe body that enacted it, the courts must honorits express intent. To approach this war on terrorotherwise would allow separation of powers inthis long-protracted struggle to fall victim to ashort judicial attention span.

The plurality’s fourth faulty assumption is thatEx parte Milligan, 71 U.S. (4 Wall.) 2 (1866), pre-cludes a determination that al-Marri is an enemycombatant under the AUMF. The plurality con-tends that Milligan’s conduct “mirror[s] the Gov-ernment’s allegations against al-Marri.” Ante at37. But this overlooks the basic differencebetween the two cases: Congress never autho-rized the use of military force against the Sons ofLiberty, Milligan’s organization, see Milligan, 71U.S. at 6, but Congress has authorized the use offorce against al Qaeda, al-Marri’s organization,see AUMF, 115 Stat. 224. Milligan ’s constitu-tional force is felt only after it has been deter-mined the individual may not be classified as anenemy combatant. See Quirin, 317 U.S. at 45.Because al-Marri plainly qualifies as an enemycombatant under the AUMF, the principles ofMilligan do not preclude detention here.

Similarly, al-Marri argues that the PatriotAct’s detention provisions supersede, and there-fore abrogate, the President’s authority underthe AUMF to detain enemy combatants. See Briefof Appellants at 14-15. The plurality wiselyrejects this contention, recognizing that “thePatriot Act does not eliminate the statutoryauthority provided the President in the AUMF to

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detain individuals who fit within the legal cate-gory of enemy combatant.” Ante at 42 (internalquotation marks omitted).

Al-Marri’s argument properly fails because theAUMF and Patriot Act have different spheres ofoperation. While the AUMF represents a specificresponse to the 9/11 attacks, authorizing militaryforce against those responsible for the attacks,the Patriot Act has a different point of emphasis:providing law enforcement with additional toolsand tactics—such as an increased ability toaccess records, regulate financial transactions,and perform surveillance—designed to preventterrorism generally, regardless of whether thesuspect was associated with 9/11. See Pub. L. No.107-56, 115 Stat. 272 (2001). Thus, to the extentthat there is even a hint of potential conflict, theAUMF undoubtedly controls in the present situ-ation as it alone specifically addresses militarydetention in response to the 9/11 attacks. There-fore, like Milligan, the provisions of the PatriotAct are relevant only after it has been deter-mined an individual does not constitute anenemy combatant—not before.

The particular errors in applying the AUMFlead to one transcendent flaw. By failing to giveproper effect to the AUMF, the plurality has sim-ply assumed the authority belonging to the leg-islative branch. The plurality states thatCongress has not issued the “particularly clearstatement . . . necessary to authorize” al-Marri’sdetention, ante at 39, but Congress has expressedits intentions quite plainly and emphatically, andto require more is to simply move the goal postson the legislature. Courts cannot, under the

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guise of interpretation, require Congress to dowhat Congress has already done. To do otherwisevitiates the long accepted approach of JusticeJackson in Youngstown Sheet & Tube Co. v.Sawyer, 343 U.S. 579 (1952). See SamuelIssacharoff & Richard H. Pildes, Between CivilLibertarianism and Executive Unilateralism: AnInstitutional Process Approach to Rights DuringWartime, 5 Theoretical Inquiries L. 1, 5-6 (2004)(explaining that the Court has long followed theYoungstown approach when faced with questionsconcerning the scope of the executive’s wartimeauthority); Cass R. Sunstein, Minimalism atWar, 2004 Sup. Ct. Rev. 47, 83 (same). Underthat rubric, the legality of executive action is for-tified by congressional approval: “[w]hen thePresident acts pursuant to an express or impliedauthorization of Congress, his authority is at itsmaximum,” while, conversely, the President’spower is at its “lowest ebb” when he “takes mea-sures incompatible with the expressed or impliedwill of Congress.” Youngstown, 343 U.S. at 635-37 (Jackson, J., concurring).

With its decision in this case, the plurality, inthe guise of interpreting the AUMF, has stoodthe Jackson approach on its head. In doing so, ithas ushered in a novel constitutional arrange-ment: now, rather than the judiciary respectingthe lead of the elected branches in the most con-sequential of all democratic decisions—those oflife and death during periods of war—the electedbranches are told they must once more take stepsthey have already taken to protect the nation.

One searches Youngstown for the slightest hintof imprimatur for this new arrangement—but it

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is nowhere to be found. In Youngstown, the Courtdeclared President Truman’s seizure of thenation’s steel mills unconstitutional, despite thePresident’s contention that the seizure was anecessary wartime measure. Id. at 583 (Opinionof the Court). While this demonstrates that thejudiciary has a role, even during wartime, inmaking sure that the executive does not exceedits authority, one must not forget the forcebehind the Supreme Court’s decision: the factthat, as even President Truman “conceded,” hisactions were not taken pursuant to a “congres-sional authorization.” Id. at 638 (Jackson, J.,concurring); see also id. at 585 (Opinion of theCourt) (“Indeed, we do not understand the Gov-ernment to rely on statutory authorization for[the] seizure.”). Youngstown has thus alwaysstood for the proposition that the judiciary servesas an important check on the executive’s powerwhen it acts without legislative approval.

What was absent when President Trumanseized the nation’s steel mills is present here:clear and explicit legislative approval of the exec-utive’s actions. By ignoring the plain text of theAUMF, the plurality ignores the teachings ofYoungstown and negates the synchronized actionof the President and Congress. It does thisdespite the fact that “it is difficult to conceive ofan area of governmental activity in which thecourts have less competence” than militaryaffairs. Gilligan v. Morgan, 413 U.S. 1, 10 (1973);see also Benjamin Wittes, Law and the Long War103-04 (2008) (noting that “the judiciary’s capac-ity to design the kind of creative policies Americaneeds in this conflict is exceptionally limited”);

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Mark Tushnet, Controlling Executive Power inthe War on Terrorism, 118 Harv. L. Rev. 2673,2679 (2005) (arguing that federal courts lack thecapabilities necessary to determine “whethersome particular response to a threat to nationalsecurity imposes unjustifiable restrictions onindividual liberty or is an unwise allocation ofdecisionmaking power”). Thus, the plurality’sapproach is not only constitutionally problematicand patently undemocratic. It is dangerouslyunsound.

II. THE CRIMINAL JUSTICE SYSTEM ISNOT THE ONLY LAWFUL MEANS OFREADDRESSING THE TERRORISTTHREAT.

Notwithstanding Congress’s explicit mandateauthorizing the executive to detain all personsaffiliated with the “organizations” that “planned”the 9/11 attacks, the plurality reaches a strik-ingly different conclusion: the Government can-not “subject them to indefinite militarydetention.” Ante at 7. The plurality holds that itis unlawful for the President to detain al-Marriwithout criminal process, and finds that thePresident must subject al-Marri to formal“charge[s], trial, and punishment in a civiliancourt.” Ante at 33. While the plurality seeks topose the dispute as a mere matter of statutoryinterpretation, it goes well beyond that. Bybrushing aside the AUMF’s plain text and reject-ing accepted notions of separation of powers, theplurality asserts its unabashed preference forusing the criminal justice system in all instances

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involving suspected terrorists similarly situatedto al-Marri.

Al-Marri and several amici express every bit asforcefully their preference for criminal prosecu-tion in all instances. Al-Marri argues that hecannot be detained “without charge in civiliancourt” and that “[a]ll persons in the UnitedStates have the right to be charged and tried in acriminal proceeding for suspected wrongdoing.”Brief of Appellants at 15, 26. Likewise, severalamici contend that the executive’s only option fordetaining al-Marri is to bring formal chargesthrough the criminal justice system. See, e.g.,Brief for U.S. Criminal Scholars and Historiansas Amici Curiae Supporting Appellants at 5(arguing that “to the extent the governmentbelieves [al-Marri] acted against the welfare ofthe United States, it should proceed with crimi-nal charges within the civilian justice system”);Brief for Center for National Security Studies etal. as Amici Curiae Supporting Appellants at 14-15.

In the alternative, al-Marri seeks, if not acriminal trial in name, then what is essentially acriminal trial in practice. Even if he may bedetained by military authorities without a crim-inal charge, al-Marri claims that he is entitled toprocesses that are part and parcel of a criminalprosecution, such as the right to discovery and“the right to confront and cross-examine wit-nesses in an evidentiary hearing.” Brief of Appel-lants at 11; see also Reply Brief of Appellants at31-32; Brief for Professors of Evidence and Pro-cedure as Amici Curiae Supporting Appellants at12-26 (asserting that the Federal Rules of Evi-

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dence and the Due Process Clause render theRapp Declaration inadmissible). These processesfar exceed those suggested by the Supreme Courtin Hamdi. See Hamdi, 542 U.S. at 533-34 (notingthat in “enemy-combatant proceedings,” hearsay“may need to be accepted as the most reliableavailable evidence from the Government” and a“burden-shifting scheme” that includes a rebut-table “presumption in favor of the Government’sevidence” may be warranted).

Based on these various assertions, the onlyreasonable inference I can draw is that the plu-rality, as well as petitioner and his amici sup-porters, endorse a ringing preference for thecriminal justice system to the exclusion of anyother option for dealing with suspected al Qaedaassociates apprehended on American soil. Bydefining the scope of the AUMF and the enemycombatant category so narrowly, it is hard to findanything other than a desire by the plurality toestablish a requirement of criminal prosecutionin almost every case.2

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2 In his concurrence, Judge Gregory expresses a sim-ilar preference for criminal prosecution. He suggests thatbecause the executive chose to criminally prosecute severalindividuals who might potentially have been detained underthe AUMF—e.g., Moussaoui, Padilla, and Abu Ali—it mustprovide al-Marri with procedures that at least resemble acriminal trial. Ante at 104-106, 110 n.5. This argument, ofcourse, overlooks the executive’s discretion to choosebetween criminal prosecution and military detention inthose instances where Congress has deemed the latterappropriate. The fact that the executive has judiciously cho-sen to forego using its detention power under the AUMF insome cases where it is available does not deprive it of the

While I would be the first to agree that thecriminal justice system retains an importantplace in our constitutional system when handlingthe terrorist threat, the notion that it is the onlymanner of dealing with such threats, or is con-stitutionally compelled in all cases involvingapprehensions on American soil, is simply wrong.The democratic branches cannot be compelled towage a struggle with so many of the attributes ofwar through the exclusive medium of the crimi-nal justice system. Nothing in our constitutionrequires the elected branches to treat terrorisminvariably as a criminal offense rather than asan act of belligerency. Indeed, such a constitu-tional approach would burden the Congress andthe Executive to a greater extent than the warpowers will allow. As discussed below, the pros-ecution of terrorists associated with organiza-tions such as al Qaeda often presents intractableevidentiary and logistical difficulties. These dif-ficulties underscore the fact that the judiciaryhas no right in the name of constitutional law tocompel criminal prosecution of terrorist suspectsin all instances. By forcing a particular approachover the wishes of Congress as expressed in theAUMF, the plurality undercuts the role of thelegislative branch in allocating to the executiveoptions to deal with the most dangerous al Qaedamembers in our midst.

One wishes in vain for the plurality to evincesome glint of recognition that two models exist to

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power in other instances where it is necessary. The questionbefore the courts in either circumstance is whether the exec-utive action is a lawful one.

manage the threat presented by suspected ter-rorists: prosecuting them through the criminaljustice system or detaining them as enemy com-batants. Neither approach alone will achieve theappropriate balance between individual libertyand national security. As such, judicial directivesthat the AUMF or the Constitution itself man-date reliance on the single model of criminalprosecution in all cases involving terrorism sus-pects is neither satisfactory nor tenable. Indeed,by formally routing all terrorist suspects appre-hended in this country through the criminal jus-tice system, the plurality has succeeded inimpairing the warmaking powers of Article I andArticle II. The warmaking powers conferred uponCongress and the Executive must likewise conferlatitude in prosecuting or detaining those whowage war; else they are empty grants, bestowingthe power without its necessary incidents. SeeHamdi, 542 U.S. at 518.

A.

I respect the aspiration that criminal prose-cutions be the preferred way of addressing everythreat that awaits the nation. But, as the Courtand constitutional tradition have long recog-nized, this is not an ideal world, and not everythreat to community safety can be handled by thecriminal justice system.

The Framers attached profound importance tojust criminal trials, and the Bill of Rights reflectstheir commitment. The Fourth, Fifth, Sixth, andEighth Amendments grant all persons a numberof protections against the coercive power of the

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government in the context of a criminal investi-gation and prosecution. The importance of theseconstitutional guarantees is consistent with apreference for using the criminal justice systemto try and punish suspects.

This preference, however, is by no means abso-lute: the Constitution has never laid down a “cat-egorical imperative” that the criminal justicesystem be the sole mode of apprehending sus-pected wrongdoers. United States v. Salerno, 481U.S. 739, 748 (1987). For instance, pragmaticconcerns of “community safety” may, in some cir-cumstances, allow the executive to deprive anindividual of liberty without a traditional crim-inal proceeding. See id. As the plurality properlyrecognizes, see ante at 15-16, this is true in con-texts as diverse as the detention of dangeroussuspects before a criminal trial, see Salerno, 481U.S. at 755 (adults); Schall v. Martin, 467 U.S.253 (1984) (juveniles); the civil commitment ofthe mentally ill, see Addington v. Texas, 441 U.S. 418 (1979); and the confinement of recidivistsex offenders unable to control their behavior, seeKansas v. Hendricks, 521 U.S. 346 (1997).

As the plurality acknowledges, each of thecases noted above constitutionally allows “deten-tion based on process less than that attendant toa criminal conviction.” Ante at 15. Although theplurality mentions these examples, see id., itfails to recognize their import. In all of thesecases, the Supreme Court acknowledged two keyfacts: first, a failure to act may leave unad-dressed a serious threat to community safetyand, second, special circumstances present sig-nificant barriers to criminal prosecution. As a

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result, the Court has consistently held that, incertain limited situations, the executive may usealternatives—such as military detention—to for-mal criminal charges so long as it does so pur-suant to a proper legislative authorization. Theplurality acknowledges this point, ante at 16 &n.6 (citing cases), but, at the same time, refusesto recognize that the AUMF is just such anauthorization. By denying Congress’s clear intentin this manner, the plurality essentially man-dates that the criminal justice system is the onlytool for pursuing a struggle that, in Congress’sview, bears many of the salient characteristics ofa modern war. This simply cannot be the case.

Indeed, the Court’s recognition of alternativesto criminal prosecution is not thought to com-promise our constitutional values, and the plu-rality is wrong for suggesting that the presentdetention does just that. Though I recognize thedetention at issue here is military rather thancivil in nature, the relevant analysis is no dif-ferent. This, at least, was the Supreme Court’sview in Boumediene, when it said that enemycombatant “proceedings need not resemble acriminal trial.” Boumediene, slip op. at 54. Infact, if anything, enemy combatants, such as al-Marri, present an even greater need for an alter-native to the criminal justice system than do thecategories of persons at issue in Salerno andHendricks.

It is unquestionable that a failure to incapaci-tate individuals such as al-Marri may have dra-matic consequences. As the plurality rightlynotes, the law of war permits enemy combatantsto be detained until the end of hostilities, in

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order to prevent their return to battle. See anteat 23 (quoting Hamdi, 542 U.S. at 519). Thesame concern is present with those responsiblefor the 9/11 attacks. Indeed, there is evidencethat suspected combatants released by theUnited States have subsequently been foundfighting against American troops in Afghanistan.See John Mintz, Released Detainees Rejoining theFight, Wash. Post, Oct. 22, 2004, at A1. More-over, the risks of failing to restrain an enemycombatant are even more pronounced when thecombatant is a suspected terrorist like al-Marri.Rather than return to a foreign battlefield, al-Marri, upon his release, may well resume hisefforts to launch a catastrophic attack againstAmerican interests either on U.S. soil or abroad.See Cass R. Sunstein, National Security, Liberty,and the D. C. Circuit, 73 Geo. Wash. L. Rev. 693,702 (2005) (noting that the costs of error whendealing with terrorism “may turn out to be dis-astrous rather than merely harmful”).

B.

There exists not only the obvious need toimmobilize enemy combatants, particularly sus-pected terrorists; there are also often seriousbarriers to their criminal prosecution. To begin,the arrest of terror suspects will sometimes nec-essarily be based on evidence that does not meetthe constitutional and statutory requirements ofa traditional criminal proceeding. The “fog ofwar” creates confusion, and, in active combatzones such as Afghanistan and Iraq, it is oftendifficult to respect the evidentiary standards,

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such as an unbroken chain of custody, that arethe hallmarks of criminal trials. See Ruth Wedg-wood, Al Qaeda, Terrorism, and Military Com-missions, 96 Am. J. Int’l L. 328, 330-31 (2002). Inaddition, it will often be implausible to allow aterror suspect to confront the witnesses againsthim because of the difficulties in having Ameri-can combat personnel leave the front lines to tes-tify. See, e.g., Hamdi, 542 U.S. at 531-32.

While the plurality implicitly recognizes, as itmust under Hamdi, that such evidentiary prob-lems support the detention of enemy combatantswho have fought on a battlefield, it inexplicablylimits that detention to those who have battle-field experience.3 In reaching this conclusion, theplurality fails to realize that some of the signif-icant difficulties associated with criminal pros-ecution are equally present when a suspectedterrorist has never been on a foreign battlefield.Indeed, these obstacles are present both beforeand during trial.

For instance, pretrial protections affordedcriminal defendants, such as a right to a speedytrial and the immediate assistance of counsel,may hinder the government’s need to gatherinformation that could save hundreds, if notthousands, of lives. While all agree that “indefi-nite detention for the purpose of interrogation” isnot allowed, Hamdi, 542 U.S. at 521, and torture

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3 The plurality notes that in Hamdi I made the sug-gestion that domestic detentions and detentions of enemycombatants on foreign battlefields present different sets ofproblems. See ante at 29 n.15 . I agree with this, and I haveapproached the issue in this case with these differences inmind.

must not be tolerated under any circumstance,this does not negate the fact that terror suspectsare likely the “best source of information” on howto prevent future terrorist attacks. See WilliamJ. Stuntz, Local Policing After the Terror, 111Yale L.J. 2137, 2162 (2002). Obviously, thisinformation will often be accessible only afterinterrogation. See id. at 2161-62. And interro-gation, particularly effective non-torturesomeinterrogation, typically takes time and maynecessitate “[h]olding a terrorist suspect incom-municado.” See Richard A. Posner, Not a SuicidePact: The Constitution in a Time of NationalEmergency 63 (2006). Thus, even if the govern-ment has no plans to interrogate a terror suspectindefinitely, the criminal justice system mayimpede the ability to gather critical information,even in the short term, because of a criminal sus-pect’s pretrial rights.

The problems presented by the criminal pros-ecution of terrorists are even more pronounced attrial. Of course, there is a strong argument forbringing all suspected terrorists to trial: a trialconducted pursuant to the open and publicrequirements of the criminal justice system pro-vides a showcase of American values and demon-strates our commitment to fairness for even themost pernicious members of society. See MichaelGerman, Trying Enemy Combatants in CivilianCourts, 75 Geo. Wash. L. Rev. 1421, 1426 (2007).But while the benefits of a criminal trial maycarry the day in most instances, I do not believethat the argument is so one-sided as to rule outthe ability of Congress to adopt otherapproaches. This is because the public prosecu-

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tion of a suspected terrorist entails several seri-ous problems.

First, while a showcase of American values, anopen and public criminal trial may also serve asa platform for suspected terrorists. Terror sus-pects may use the bully pulpit of a criminal trialin an attempt to recruit others to their cause.Likewise, terror suspects may take advantage ofthe opportunity to interact with others duringtrial to pass critical intelligence to their allies.For instance, before his appointment as AttorneyGeneral, former federal Judge Michael B.Mukasey recounted the story of how, “in thecourse of prosecuting Omar Abdel Rahman (theso-called ‘blind sheik’) and others for their role inthe 1993 World Trade Center bombing and othercrimes, the government was compelled . . . to turnover a list of unindicted coconspirators to thedefendants.” Michael B. Mukasey, Jose PadillaMakes Bad Law, Wall St. J., Aug. 22, 2007, atA15. One of those coconspirators, it turns out,was Osama bin Laden. Within ten days, a copy ofthe list was in bin Laden’s hands, “letting himknow that his connection to that case had beendiscovered.” Id.

Second, and relatedly, the prosecution of someterrorists could present security concerns of adifferent sort: witnesses and jurors may be sub-jected to threats of violence or become the targetsof attack. The willingness of terrorist organiza-tions to retaliate against civilian participants ina terrorist trial cannot be overlooked. Al Qaedahas already “carried out a mass killing abroadand left a written message stating that thekilling was in retaliation for the actions of [a]

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federal trial judge.” Wedgwood, supra, at 331. Itis not unreasonable to believe that such a ruth-less organization could easily target the trialparticipants themselves in the future. See 18U.S.C. § 1512 (2000) (prohibiting tampering witha witness, victim, or informant).

To place jurors and witnesses in this sort ofdanger goes far beyond the price that we fairlyask citizens to pay as responsible members of afree society. For while it may of course be possi-ble to protect jurors and witnesses during trial, itlikely will prove very difficult to fully protectthem after a trial has been concluded. See Wedg-wood, supra, at 331. The plurality, by insistingon criminal prosecution in nearly all instances,fails to consider that a highly publicized inter-national terror trial may perfectly suit the inter-ests of an organization, such as al Qaeda, thatthrives on propaganda and intimidation.

Third, and finally, the plurality also neglects todiscuss another serious concern: traditional crim-inal proceedings, especially public trials, may notbe responsive to the executive’s legitimate needto protect sensitive information. Neither the plu-rality nor anyone else suggests that suspectedterrorists, such as al-Marri, are arrested pur-suant to anything other than intelligence of themost sensitive sort.

If such highly classified intelligence were dis-closed to suspected terrorists, the consequenceswould be devastating. Any further use of thatintelligence to either prevent future attacks orcapture other suspected terrorists would be jeop-ardized, if not lost. Moreover, the loss of secrecywould place the sources of sensitive information

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in danger of reprisal. It is for these reasons thatthe Court has recognized that the “[g]overnmenthas a compelling interest in protecting . . . thesecrecy of information important to our nationalsecurity.” CIA v. Sims, 471 U.S. 159, 175 (1985)(quoting Snepp v. United States, 444 U.S. 507,509 n.3 (1980) (per curiam)) (internal quotationmarks omitted).

However, the government’s desire to protectsuch sensitive intelligence may conflict with adefendant’s confrontation and compulsory pro-cess rights. By employing those rights, a terrorsuspect like al-Marri may, in a tactic commonlyreferred to as “graymail,” request highly sensi-tive materials. See William H. Simon, The Ethicsof Criminal Defense, 91 Mich. L. Rev. 1703, 1705(1993). Such a request leaves the governmentfacing a Hobson’s Choice. The government canwithdraw all or part of its case to protect itsinformation, or proceed and surrender its sensi-tive intelligence and possibly its source. Andeven if the government is able to suppress thedefendant’s request, defense counsel will be ableto insinuate that the government is hiding infor-mation that is favorable to the defendant.

I do not suggest these concerns should carrythe day. But Congress may certainly take theminto account in deciding that the criminal justicesystem is not the sole permissible means of deal-ing with suspected terrorists. In light of theseconcerns, it seems apparent that the criminaljustice system may be ill-suited to deal with theunique problems presented by the prosecution ofterrorists such as al-Marri. This, at least, wasthe calculus of Congress in passing the AUMF.

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By ignoring these concerns and the clear text ofthe AUMF, however, the plurality sends theunmistakable message that the criminal justicesystem is the unquestioned template for dealingwith domestic terrorists, regardless of the con-sequences.

C.

To be sure, corrective measures have beenadopted by Congress to alleviate many of theproblems presented by the criminal prosecutionof suspected terrorists. For instance, the Classi-fied Information Procedures Act was specificallydesigned to handle classified information in thecourse of a criminal proceeding in a manner thatbalances the legitimate need of national securityagainst the legitimate need for the assertion ofbasic rights. See Classified Information Proce-dures Act (“CIPA”), 18 U.S.C. app. III §§ 1-16(2000); see also United States v. Fernandez, 913F.2d 148 (4th Cir. 1990). Courts and parties havebecome familiar with the customary toolsemployed in these cases, such as in camera hear-ings, redactions, and placing information underseal. In addition to such statutory measures,there is also case law designed to balance a vari-ety of pressing governmental interests with adefendant’s criminal process rights. See, e.g.,Maryland v. Craig, 497 U.S. 836, 853 (1990) (bal-ancing the state’s “interest in the physical andpsychological well-being of child abuse victims”against a defendant’s desire for face-to-face con-frontation); Roviaro v. United States, 353 U.S.53, 62 (1957) (holding that the determination of

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whether an informant’s identity must be dis-closed requires “balancing the public interest inprotecting the flow of information against theindividual’s right to prepare his defense”).

But if the plurality’s insistence on using thecriminal justice system to prosecute all domesticterrorists rests on the presence of corrective mea-sures such as CIPA, it must also recognize thatthese corrective measures are not always avail-able and, even when available, are not able toaddress every difficulty. Despite CIPA’s purpose,it is not a panacea for the problems presented bythe criminal prosecution of some suspected ter-rorists. This is because CIPA does not pretend toovercome all limitations on the judicial perspec-tive. Because courts understandably tend to befocused on the specific cases before them (that is,after all, the nature of the judicial process), thereis a risk that they, understandably, will fail toappreciate the broader dangers associated with apotentially sensitive piece of information. SeeSims, 471 U.S. at 176 (explaining that judgeshave “little or no background in the delicate busi-ness of intelligence gathering” and that “[t]hereis no reason . . . to have great confidence in theability of judges to make” intelligence-relatedjudgments correctly).

And there is no guarantee that even the mostconscientious attempts to protect classified infor-mation will always be effective. For instance,during the criminal trial of Ramzi Yousef, “anapparently innocuous bit of testimony in a publiccourtroom about delivery of a cell phone batterywas enough to tip off terrorists still at large thatone of their communication links had been com-

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promised.” Mukasey, supra, at A15. Given alQaeda’s ambitions, such mistakes have ramifi-cations that last far beyond a specific trial—mis-takes Congress sought to prevent in granting thePresident the authority to detain enemy com-batants under the AUMF, and mistakes the plu-rality fails to acknowledge when suggesting thatthe criminal justice system is the only model fordealing with al-Marri and those similarly situ-ated.

In the long run, the plurality’s preference formaking the criminal justice process the exclusivevehicle for dealing with domestic terrorism maydisserve nothing so much as the criminal justicesystem itself. In adopting corrective measures todeal with the unique problems presented by ter-rorism prosecutions, courts may dilute the coreprotections of the criminal justice system inother cases. In the past, the “urgency involved interrorism cases” has “led courts to accept conductby the government that might well have been dis-approved in other contexts.” John Farmer, A Ter-ror Threat in the Courts, N.Y. Times, Jan. 13,2008, § 4, at 14. Furthermore, in order to effec-tively prosecute terrorists, courts have beenmuch more willing to extend the “reach” of mate-rial witness and conspiracy statutes “to conductthat has never before been punishable as acrime.” Id.

It is naive to think that this sort of dilution ofour procedural and substantive criminal law willhave no effect on the prosecution of criminal sus-pects who are not terrorists. The government willseek to take advantage of “terrorist precedents”in other cases. Thus, despite the plurality’s

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protestations to the contrary, the best way tomaximize liberty for all may in fact be to mini-mize the instances when such dilutions of crim-inal process are needed in the first place.

The unintended consequences of the plurality’sinsistence on the criminal justice model do notend with the dangers of dilution. In pushing forthe full panoply of criminal process for all sus-pected terrorists arrested in this country, theplurality risks pushing the executive, under-standably intent on protecting the nation, in amore extreme direction. The difference betweenthe elaborate procedural protections required bythe plurality in the United States and thoserequired elsewhere will give the executive branchthe incentive to pursue more extraterritorialdetentions and more acts of rendition—notbecause these actions are necessarily dictated bythe struggle against terror but because of the dis-parities between refined procedural regimes athome and more rudimentary ones abroad. It isfar better for true liberty to seek some balancebetween criminal prosecution and military deten-tion for suspected terrorists in this country thanto pursue the plurality’s one-sided path.

To sum up, while corrective measures such asCIPA are possible and adaptations in criminalprocedures have certainly been undertaken, thefact remains that prosecutions of terrorist sus-pects have frequently proven to be difficult, bothas a practical and logistical matter and as abroader gauge of what the judiciary’s proper roleshould be on matters touching quite intimatelyon the conduct of war. It is often argued thatthese difficulties are nothing more than a func-

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tion of the fact that these post-9/11 cases areones of first impression. This is only partly true.These difficulties are inherent, and no accumu-lation of experience is going to make the under-lying evidentiary dilemmas and problems goaway.

Moreover, it cannot be forgotten that CIPA wasenacted by Congress to apply to criminal prose-cutions, not to military detentions. See, e.g., 18U.S.C. app. III § 8 (stating that the protections ofCIPA are designed to “prevent unnecessary dis-closure of classified information involved in anycriminal proceeding” (emphasis added)). Therehas been no indication from Congress that CIPAshould be extended wholesale beyond its originalscope, and we therefore should not do so here.Likewise, it cannot be forgotten that Congresspassed the AUMF fully cognizant of CIPA andother available corrective measures. WhenCongress authorized the use of necessary force,including the military detention of enemy com-batants such as al-Marri, it did so knowing fullwell that other alternatives were possible. Nev-ertheless, it authorized the President, when“appropriate,” to detain enemy combatants, apower long recognized as a fundamental incidentof waging war. This authorization must not beundermined, as the plurality attempts, throughjudicial subversion in the name of criminal pro-cess. See William H. Rehnquist, All the Laws ButOne: Civil Liberties in Wartime 205 (1998) (stat-ing that “[j]udicial inquiry” is “ill-suited” toaddress issues of “military necessity”).

Thus, while many terrorist threats can andshould be treated through the criminal justice

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system, that preference should by no means beabsolute. Indeed, it has never been the case thatthe criminal justice system is used to the exclu-sion of all other forms of detention. By effectivelyreducing the legislature’s allocation of detentionoptions to the executive and all but directing thatour government deal with such threats in a sin-gle, invariable manner, the plurality is not justwrong, but dangerously so. For the reasons dis-cussed above, it is neither practical nor possibleto prosecute all terrorism suspects using thecriminal justice system. And it is not constitu-tionally required.

D.

I do not wish to be misunderstood. If the pros-ecution of suspected terrorists is simply not pos-sible in all circumstances, neither is the use ofmilitary detention. While the ability to detaineliminates many of the problems associated withcriminal prosecution, open-ended detention is notan acceptable way to conform our historic com-mitments to liberty to the exigencies of this dif-ferent kind of conflict.

Under the military detention model, the Pres-ident may detain enemy combatants without try-ing them in the criminal justice system. SeeHamdi, 542 U.S. at 516-23. This is an awesomepower and, as such, must be properly circum-scribed. Detainees are not afforded the full pro-tections of the Bill of Rights or the Federal Rulesof Criminal Procedure, and the executive’sactions are not subject to the accountability thatis inherent in the criminal justice system. See,

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e.g., Harold Hongju Koh, The Case Against Mili-tary Commissions, 96 Am. J. Int’l L. 337, 338-42(2002).

To turn every crime that might be tenuouslylinked to terrorism into a military matter wouldbreach this country’s most fundamental values.Our acceptance of jurisdiction in al-Marri’s casebespeaks the recognition that indefinite deten-tion with no prospect of review is not an option.Such a broad extension of the executive’s deten-tion powers would suspend not only the Consti-tution, but the very essence of liberty itself.

The hard question is thus not between a full-blown prosecution and an unsupervised deten-tion. The hard question involves theidentification of those who must be formallycharged and prosecuted in the traditional man-ner and those who may be detained pursuant tomore limited procedures set forth by congres-sional proclamation or Supreme Court precedent.See, e.g., Hamdi, 542 U.S. at 524-39 (detailingprocedures that must be afforded American citi-zens detained as enemy combatants).

The dilemma thus is clear: while we have aconstitutional preference for traditional criminalproceedings, the prosecution of many terror sus-pects presents unprecedented challenges. Con-versely, while the ability to detain avoids manyof the problems inherent in the criminal justicesystem, the threat to liberty presented by exec-utive detention commands that it be carefully cir-cumscribed. The choice of which path to take isanything but easy, and the plurality and al-Marriare absolutely wrong to suggest otherwise.

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Instead, there must be a set of criteria thatenable us to identify when military detention isa constitutionally permissible option. This iswhat I shall try to do in Section III. These crite-ria must endeavor to respect the preference forthe criminal justice system to the extent possible,while not compromising the unquestioned con-stitutional prerogative of Congress and the exec-utive to wage war and ensure the security of thisnation and its people.

III. THE DETENTION OF AL-MARRI ISCONSISTENT WITH THE LIMITSESTABLISHED BY OUR CONSTITU-TION ON THE MILITARY DETENTIONOF THOSE LAWFULLY ON AMERICANSOIL.

The text of the AUMF clearly authorizes al-Marri’s detention. Our inquiry cannot end here,however. There are constitutional limits on whatCongress can authorize the executive to do.Those limits must respect both the legitimateoperation of the war powers and simultaneouslyprotect against their abuse—for military deten-tions that bear no relationship to the conduct ofwar serve only to erode the basic charter of ourrights. Those of us who believe the AUMF appliessimply cannot avoid the serious constitutionalissues that result. Because Congress plainly can-not authorize the President to sweep people offthe street without a constitutional basis for doingso, we must also address whether “the Constitu-tion permits” Congress to authorize the militarydetention of someone, such as al-Marri, who waslawfully residing in this country when seized on

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American soil. Boumediene v. Bush, 553 U.S. ___,slip. op. at 59 (2008).

At some point the obligation arises not just toask whether, but why—as in why the militarydetention of those lawfully in this country is aconstitutionally permissible exercise. And notjust why, but when as in when the detention oflawful residents is permissible, and when it isnot. If the basic “wh” questions do not arise inthis case, then I doubt they ever will. The Amer-ican constitutional tradition is not consonantwith the prospect of martial law in other thannecessitous circumstances. See U.S. Const. art. I,§ 9, cl. 2; Ex parte Milligan, 71 U.S. (4 Wall.) 2(1866); see also The Posse Comitatus Act, 18U.S.C. § 1385 (2000). But the American consti-tutional tradition likewise does not countenancejudicial interference in democratic efforts to wardoff war’s gravest dangers. See U.S. Const. art. I,§ 8, cl. 11-16; id. at art. II, § 2, cl. 1; YoungstownSheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37(1952) (granting presidential action taken pur-suant to a congressional authorization “thewidest latitude of judicial interpretation”) (Jack-son, J., concurring). So our obligation becomesone of treading carefully, lest we cross lines with-out reflection.

It is here I believe the plurality falls short. Byinterpreting the AUMF in a manner so plainlycontrary to its text, the plurality all but statesthat Congress is devoid of any constitutionalauthority to authorize detention of al-Marri.Indeed, it proclaims that the application of theAUMF to allow the military detention of an indi-vidual apprehended on American soil and with no

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foreign battlefield experience “would have dis-astrous consequences for the Constitution—andthe country.” See ante at 62-63. In holding theAUMF not to authorize al-Marri’s detention inthe face of a plain textual instruction otherwise,the plurality lays bare its constitutional misgivings about this detention. In fact, the plurality suggests as much by noting the “con-stitutional concerns” and “serious constitutionalquestions” that would attend an interpretation ofthe AUMF that permits the detention of personssuch as al-Marri. Ante at 20.

So the plurality proposes to avoid all theseissues. The plurality is surely right that, “when-ever possible,” a statute such as the AUMFshould be construed to avoid “serious constitu-tional problems.” Ante at 48 (internal quotationmarks omitted). But there is a limit to the extentto which courts may disregard statutory text inthe name of ducking difficult constitutional ques-tions. As Boumediene puts it: “The canon of con-stitutional avoidance does not supplanttraditional modes of statutory interpretation. . . .We cannot ignore the text and purpose of astatute in order to save it.” Boumediene, slip op.at 58. Several members of this court have madeclear that the AUMF simply cannot be read inthe manner the plurality proposes. Our basictask remains that of giving a text some sem-blance of the meaning that Congress intended forit, and the doctrine of constitutional avoidancedoes not absolve us of that duty.

Thus, in the name of constitutional avoidance,the plurality has denied the AUMF its plaineffect. At the same time, however, the govern-

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ment has failed to develop principled limitationson its position, thus causing concern that theexecutive is seeking an authority that is uncom-fortably open-ended. See Hamdi, 542 U.S. at 516(noting that “the Government has never providedany court with the full criteria that it uses inclassifying individuals as” enemy combatants).Because no absolute approach is tenable, theremust be appropriate criteria for determiningwhen the government may constitutionallydetain a suspected terrorist as an enemy com-batant. This is consistent with the SupremeCourt’s plurality opinion in Hamdi v. Rumsfeld,542 U.S. 507 (2004).4

The “threshold question” in Hamdi was“whether the Executive has the authority todetain citizens who qualify as ‘enemy combat-ants.’” Id. at 516. The Court found that theAUMF did authorize the President to engage inthe “fundamental incident[s] of waging war.” Id.at 519. This, the Court explained, included themilitary detention of persons properly classifiedas enemy combatants. Id. at 518-19 (quoting Exparte Quirin, 317 U.S. 1, 28, 30 (1942)).

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4 Of course, to say that military detention is availableis not to say that it is required. Rather, if military detentionis a permissible option, then the specific decision of whetherto detain or prosecute should be left to the sound discretionof the executive branch. See Padilla v. Hanft, 423 F.3d 386,394-95 (4th Cir. 2005) (noting “that the availability of crim-inal process cannot be determinative of the power to detain,if for no other reason than that criminal prosecution maywell not achieve the very purpose for which detention isauthorized in the first place”).

The Court then addressed who was an enemycombatant. Rather than delineate the term’s fullscope, the Court answered only the “narrow ques-tion” of whether Hamdi, based on the factsalleged, qualified as an enemy combatant.Hamdi, 542 U. S. at 516. The Court held thatsomeone who was “part of or supporting forceshostile to the United States or coalition partnersin Afghanistan and who engaged in an armedconflict against the United States there,” couldbe treated as an enemy combatant. Id. (internalquotation marks omitted).

The plurality has consistently overread Hamdi,to the effect that only those engaged in armedconflict on a foreign battlefield fall into theenemy combatant category. See ante at 22-25.But that is not at all what Hamdi said. Recog-nizing “[t]here is some debate as to the properscope of this term,” 542 U.S. at 516, Hamdiobserved that the “legal category of enemy com-batant has not been elaborated upon in greatdetail,” id. at 522 n.1. Instead, “[t]he permissiblebounds of the category will be defined by thelower courts as subsequent cases are presentedto them.” Id.

This is such a case. Because al-Marri’s caseraises such fundamental questions about theexecutive’s power to militarily detain suspectedterrorists lawfully residing in this country, itimposes the obligation to examine the precisecontours of the enemy combatant category and todevelop a framework for determining who underour Constitution may be lawfully detained.5

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5 The plurality asserts that any constitutional limitsplaced on the executive’s ability to abrogate the Bill of

My analysis thus begins with an examinationof traditional law of war principles that mustunderlie any understanding of the enemy com-batant category (subsection A). Next, I shallexplain how these principles have consistentlyaccommodated changes in the conduct of war andin international relations (subsection B). I shallthen discuss the recent changes associated withthe war on terrorism, namely the threat of state-less actors who primarily target innocent civil-ians and may come to possess weapons of massdestruction (subsection C). Based on the princi-ples underlying the law of war and in light of thenew circumstances in this particular conflict, Iwill elucidate what I believe to be the proper cri-teria for determining who may qualify constitu-tionally as an enemy combatant (subsection D)and demonstrate that these criteria are consis-tent with existing Supreme Court and circuit

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Rights amount to what is in effect a limiting construction onthe AUMF itself. See ante at 20-21 n.9. This is quite mis-taken: there is a difference between statutory and consti-tutional interpretation, and the plurality is wrong toconflate the two. Recognizing that there are constitutionallimits as to who the executive may militarily detain is thusa far cry from placing a limiting construction on the AUMF.

Moreover, the limiting construction that the pluralityplaces upon the plain language of the AUMF—namely thatit does not apply to the military detention of any enemycombatant within this country—is a far more dramaticrestriction of congressional language and executive author-ity than the Constitution requires. Quite apart from the dif-ferent result we reach in al-Marri’s case, the plurality’swillingness to intrude upon the exercise of the warmakingpowers in the guise of statutory interpretation bears noresemblance to any constitutional structure I have known.

precedent on the matter (subsection E). Finally,I will apply these criteria to the facts of al-Marri’s detention (subsection F). I can discern noshortcut to this inquiry. Indeed, I think this isthe only way to approach and resolve al-Marri’scase.

A.

At first glance, any discussion of traditionallaw of war principles may seem quite antique.These principles are rooted in times long past,when war was synonymous with classic battle-field combat engaged in by the uniformed armiesof rival nation-states. Our current enemy has, ofcourse, shown only contempt for long-establishedrules of armed conflict. Nevertheless, the law ofwar remains of primary importance in deter-mining the proper contours of the enemy com-batant category. This is true for two reasons.First, as the Court explained in Hamdi, “long-standing law-of-war principles” should informour understanding of the AUMF and, therefore,the scope of the President’s power to detainenemy combatants in the current conflict. SeeHamdi, 542 U.S. at 521; see also ante at 22 (stat-ing that “American courts have repeatedly lookedto . . . the law of war in identifying which indi-viduals” are enemy combatants). Second, andmore fundamentally, traditional law of war prin-ciples are consistent with the belief that indiscriminate detention is antithetical to con-stitutional norms and cannot be tolerated underour system of justice.

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Thus, while I do not claim any special expertisein the law of war and its history, I begin myanalysis by looking to “longstanding law-of-warprinciples.” Although there are those far moreknowledgeable about these matters than am I,certain rudimentary principles do suggest them-selves and, as the Supreme Court has indicated,these principles provide context and assistancefor the inquiry at issue here.

The law of war is not binding of its own force,but rather informs our understanding of the warpowers in Articles I and II and of the enemy com-batant category. The law of war likewise servesas a source of guidance during times of armedconflict, and courts look to the law of war wheninterpreting the content and scope of a congres-sional authorization to use military force, such asthe AUMF. See, e.g., Hamdi, 542 U.S. at 518-19;Ex parte Quirin, 317 U.S. 1, 30-31 & n.7 (1942);Padilla v. Hanft, 423 F.3d 386, 391 (4th Cir.2005). Indeed, the “generally accepted view” isthat “a broad and unqualified authorization touse force empowers the President to do to theenemy what the laws of war permit.” Curtis A.Bradley & Jack L. Goldsmith, CongressionalAuthorization and the War on Terrorism, 118Harv. L. Rev. 2047, 2093 (2005).

The law of war represents a “distinct canon ofthe Law of Nations.” William Winthrop, MilitaryLaw and Precedents 773 (2d. ed., Beard Books2000) (1896). In the United States, it “encom-passes all international law for the conduct ofhostilities binding on the United States or itsindividual citizens, including treaties and inter-national agreements to which the United States

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is a party, and applicable customary interna-tional law.” Dep’t of Defense, DoD Law of WarProgram, DoD Directive 2311.01E, sec. 3.1 (May9, 2006), available at http://www.fas.org/irp/dod-dir/dod/d2311_01e.pdf; see also Jack M. Beard,The Geneva Boomerang: The Military Commis-sions Act of 2006 and U.S. Counterterror Opera-tions, 101 Am. J. Int’l L. 56, 56 n.5 (2007)(quoting the DoD Directive).

1.

Several principles animate the law of war.Foremost among them is the cardinal principle ofdiscrimination, which seeks to minimize theunnecessary destruction of life and property thatresults from “purposeless or wanton violence.”Michael Walzer, Just and Unjust Wars 129 (3ded. 2000). The principle of discriminationrequires warring nations to limit their militarytargets to those persons who actually pose a mil-itary threat. At the same time, it allows warringnations to detain those who do represent a mili-tary threat, ensuring that such persons, but onlythose persons, are removed from the field of con-flict. While mistakes are inevitable in the oftenconfused environment that is warfare, the prin-ciple of discrimination recognizes the indis-putable value, even in wartime, of sparinginnocent life.

This principle of discrimination is effectuatedthrough the category of “enemy combatant.” Only“enemy combatants” may be the intended targetsof military force or militarily detained. Twomajor distinctions define the enemy combatant

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category: (1) the distinction between enemies andnon-enemies and (2) the distinction between com-batants and non-combatants. See, e.g., Walzer,supra, at 135-37; Bradley & Goldsmith, supra, at2107-16.

The first level of classification determines whoqualifies as the “enemy.” Traditionally, the def-inition of “enemy” has been state-based: after theUnited States declares war on another nation, allresidents of that country are deemed enemies ofthe United States. Lamar v. Browne, 92 U.S. 187,194 (1875) (“In war, all residents of enemy coun-try are enemies.”); In re Territo, 156 F.2d 142,145 (9th Cir. 1946) (same). A country’s enemiesinclude “not merely the opposed military forcesbut all the inhabitants of the belligerent nationsor districts.” Winthrop, supra, at 776. Conse-quently, those who reside in neutral countries,even if politically, but not militarily, sympatheticto the enemy nation, are immune from detentionand targeting by military forces.

After determining that a person is an “enemy,”the second level of classification distinguishescombatants from non-combatants. “By universalagreement and practice, the law of war draws adistinction between the armed forces and thepeaceful populations of belligerent nations.” SeeQuirin, 317 U.S. at 30-31. Indeed, the “distinc-tion between combatants and civilians is a car-dinal principle of the law of war.” Beard, supra,at 60.

Combatants have traditionally included “mostmembers of the armed forces,” Bradley & Gold-smith, supra, at 2114, and those “who associatethemselves with the military arm of the enemy

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government,” Quirin, 317 U.S. at 37. Theparadigmatic example of a combatant is a soldierwho actively serves in his nation’s military. SeeProtocol Additional to the Geneva Conventions of12 August 1949, and relating to the Protection ofVictims of International Armed Conflicts art.43(2), June 8, 1977, 16 I.L.M. 1391 (hereinafter“Protocol I”) (stating that “[m]embers of thearmed forces of a Party to a conflict” are “com-batants”). However, “surgeons, assistants andemployees charged with the care and transport ofthe wounded on the field,” even if they are for-mally part of the country’s military organization,generally have not been considered combatants.Winthrop, supra, at 779; Richard J. Regan, JustWar: Principles and Cases 89 (1996) (noting that“the law of nations and international conventionsprohibit attacks on medical military personnel”);see also Military Commissions Act of 2006, Pub.L. No. 109-366, § 950v(a)(2)(C), 120 Stat. 2600,2625 (classifying “military medical or religiouspersonnel” as “protected person[s]”).

Several factors have traditionally been con-sidered relevant to the determination of whethersomeone is a combatant. These include an indi-vidual’s “self-identification through the wearingof a uniform or some other distinguishing char-acteristic” and “participation within the com-mand structure of a party to the conflict.”Bradley & Goldsmith, supra, at 2114; see alsoMilitary Commissions Act of 2006, Pub. L. No.109-366, § 948a(2)(B), 120 Stat. 2600, 2601(including the “wear[ing] [of] a fixed distinctivesign recognizable at a distance” and being “underresponsible command” as part of the determina-

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tion of “lawful enemy combatant”); Geneva Con-vention Relative to the Treatment of Prisoners ofWar art. 4, Aug. 12, 1949, 6 U.S.T. 3316, 75U.N.T.S. 135 (hereinafter “Third Geneva Con-vention”). A person’s presence on a battlefieldhas also been considered particularly relevant tothe combatant determination. See, e.g., Padilla,423 F.3d at 391-92 (citing Hamdi, 542 U.S. at522 n.1).

No single factor must exist in order to qualifya person as a combatant, however. For instance,the Supreme Court has made clear that an indi-vidual may be a combatant even if he is not act-ing on the battlefield. In Quirin, the Court heldthat the petitioners, who had buried their mili-tary uniforms after secretly arriving in theUnited States, were no “less belligerents [i.e.combatants]” even if they had “not actually com-mitted or attempted to commit any act of depre-dation or entered the theatre or zone of activemilitary operations.” 317 U.S. at 38. The failureof the plurality to appreciate this aspect ofQuirin results in a faulty premise. The pluralitymistakenly presumes that in order to be anenemy combatant, an individual must have beenpresent, at one time or another, on an active bat-tlefield. See ante at 28 (finding that al-Marri wasnot an enemy combatant because, among otherreasons, he was “not alleged to have been on thebattlefield during the war in Afghanistan”).Quirin makes plain the concept of a combatant ismuch broader.

Likewise, a person’s citizenship status is notdeterminative of his combatant status. The plu-rality discusses at length the fact that al-Marri,

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as an alien who lawfully entered the UnitedStates, receives “certain [legal] protections—including those rights guaranteed by the DueProcess Clause”—while within the United States.Ante at 14. The plurality emphasizes this point todemonstrate that allowing the detention of al-Marri, a lawful alien, would also permit thedetention of American citizens. See, e.g., ante at6 (arguing that the detention of al-Marri wouldalso allow the “military detention of a similarlysituated American citizen”); id. at 14 (noting that“the Due Process Clause protects not only citi-zens but also aliens”); id. at 33 (noting that “evenordinary American citizens” could be detained).

Once again, the plurality has indefensibly nar-rowed the concept of a combatant. Any implica-tion that an individual’s citizenship statusprevents his detention as an enemy combatantalso runs directly afoul of the Supreme Court’sholding in Quirin. Quirin makes clear that thelaw of war trumps any claim based on Americancitizenship: “Citizenship in the United States ofan enemy belligerent [i.e. combatant] does notrelieve him from the consequences of a bel-ligerency which is unlawful because in violationof the law of war.” 317 U.S. at 37-38.

2.

Depending on one’s status as a combatant ornon-combatant, different rights and obligationsattach.6 For instance, combatants are the only

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6 Non-combatants, also known and referred to by theplurality as civilians, are by definition anyone who is not

ones who may legitimately carry out “the opera-tions of war,” namely the use of force. Winthrop,supra, at 778. Consequently, only they may law-fully kill the opposing forces. However, in exer-cising this awesome power, combatants may onlytarget fellow combatants. And, of course, “oncewar has begun,” combatants may be “attack[ed]at any time (unless they are wounded or cap-tured).” Walzer, supra, at 138.

Combatants are also required to follow thelaws of war. Offenses against the law of war maybe defined by Congress, see U.S. Const. art I., § 8,cl. 10, or based on “the common law of war,” seeHamdan v. Rumsfeld, 126 S. Ct. 2749, 2780(2006). Offenses include “engaging in illegal war-fare as a guerilla,” “acting as a spy,” “abuse orviolation of a flag of truce,” disguising oneself inthe uniforms of the opposing forces, and the“unlawful, unreasonably harsh, or cruel, treat-ment of prisoners.” Winthrop, supra, at 785, 791,839-40; see also Quirin, 317 U.S. at 35-37 (hold-ing that persons who “pass surreptitiously fromenemy territory into our own, discarding theiruniforms upon entry, for the commission of hos-tile acts involving destruction of life or property,have the status of unlawful combatants punish-able as such by military commission”); MilitaryCommissions Act of 2006, Pub. L. No. 109-366,§ 950v(b), 120 Stat. 2600, 2626- 30 (definingtwenty-eight offenses that are triable by militarycommission as law of war offenses); ThirdGeneva Convention art. 3.

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deemed a combatant. See, e.g., Beard, supra, at 60; Bradley& Goldsmith, supra, at 2107, 2113-14; see also Walzer,supra, at 138-59; Winthrop, supra, at 778-79.

If a combatant acts in accordance with the lawof war, he is a lawful combatant and entitled tothe rights thereof. This includes being treated asa prisoner of war if captured. See Third GenevaConvention; Regan, supra, at 88. Because lawfulcombatants are simply following the orders oftheir belligerent nation, the law of war dictatesthat they not be punished for their role in thehostilities. Third Geneva Convention art. 13(“Measures of reprisal against prisoners of warare prohibited.”); Winthrop, supra, at 791.Instead, they are held as prisoners of war,treated humanely, and released or returned totheir home country when the conflict is over. SeeThird Geneva Convention art. 13 (“Prisoners ofwar must at all times be humanely treated.”);Hamdi, 542 U.S. at 520; Winthrop, supra, at 790(noting that captured lawful combatants must be“treated with humanity” and “on the same foot-ing as regards food and clothing as the troops ofthe Government who made them prisoners”).

If a combatant violates the law of war, how-ever, he becomes an unlawful combatant. Unlaw-ful combatants “are subject to trial andpunishment by military tribunals for acts whichrender their belligerency unlawful.” Quirin, 317U.S. at 31; see also Johnson v. Eisentrager, 339U.S. 763, 786 (1950) (noting that the “jurisdictionof military authorities, during or following hos-tilities, to punish those guilty of offenses againstthe laws of war is long-established”). Unlawfulcombatants are to be tried by military commis-sions. See Military Commissions Act of 2006,Pub. L. No. 109-366, § 948c, 120 Stat. 2600, 2602(establishing military commissions for alien

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unlawful enemy combatants); Hamdan, 126 S.Ct. at 2775-78. After trial by military authori-ties, unlawful combatants may be punished inany number of ways, including imprisonment ordeath. Winthrop, supra, at 842-43.

Non-combatants also have unique rights andobligations under the law of war. First and fore-most, civilians should not “be the objects or thetargets of military activity,” Walzer, supra, at151, and “[e]xcept where unavoidable,” they “arenot to be involved in injury to life, person, orproperty,” Winthrop, supra, at 778; Protocol I,art. 51. Those who violate this “rule of immunityof non-combatants . . . become liable to the sever-est penalties as violators of the laws of war.”Winthrop, supra, at 779.

In light of this immunity from the brunt ofarmed conflict, civilians have a related obligationto not “take a direct part in hostilities.” ProtocolI, art. 51(3). If a non-combatant does take adirect part in the conflict, he forfeits his statusas a civilian and may be treated as an unlawfulcombatant.7 See Bradley & Goldsmith, supra, at2115.

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7 The exact line between direct and indirect partici-pation is not a clear one. See Beard, supra, at 60 (notingthat “[d]etermining precisely when noncombatants lose theirprotected status . . . has not always been easy”); Bradley &Goldsmith, supra, at 2115 (noting that “there is uncertaintyabout where the line should be drawn”). However, there isuniversal agreement that a civilian who engages in military-like actions, such as discharging a weapon against theenemy, directly participates.

3.

The above is no more than a concise presenta-tion of the classical model of the laws of war. Noone is so naive as to believe that the classicalmodel governs the behavior of all warring par-ties. The classical model often cracks under thestrain of actual warfare, as the devastation tocivilians in World War II, among other things,bears full testament. And, as was plain from9/11, al Qaeda and other terrorists hold the lawsof war in open contempt. Thus, the classicalmodel is not introduced to suggest guidelines towhich warring parties in fact adhere or stan-dards that would subject the conduct of war inthis country to pervasive litigation.

Instead, I discuss the classical model for a dis-crete and narrow purpose. The attacks of 9/11left this country on the horns of a dilemma:between having our hands tied with Marquess ofQueensberry rules and being so indifferent to thelaw of war that we ourselves became a rogue andlawless nation. The Supreme Court, in attempt-ing to alleviate this tension, suggested that thelaw of war serves as a useful guide as to whomthe President may constitutionally detain. SeeHamdi, 542 U.S. at 518, 521. In other words, anunderstanding of the traditional law of war is thefirst step in defining the concept of an enemycombatant.

In sum, the law of war has historically classi-fied individuals during times of armed conflictinto one of several categories. The process of clas-sification involves two major steps. The firstinquiry is whether a person is an enemy. If so,

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the second inquiry is whether that person is acombatant or a civilian. Different rights attachdepending on these classifications. Most impor-tantly for our purposes, only enemy combatants,both lawful and unlawful, (and civilians who takea direct part in hostilities) may be detained bythe military in accordance with the laws of war.

B.

The classical model is just that: a classicalmodel. War changes. So too the law of war hasnot remained static. Rather, it has responded tothe ever-evolving nature of combat and thedynamic quality of international relations.

To that end, the recent past has witnessed dra-matic changes in the manner in which wars areconducted. War is less a state-based enterprise:the greatest threats to our nation’s security nowinclude those from stateless actors intent onunleashing weapons of mass destruction againstcivilian populations. Thus, while the principle ofdiscrimination and the category of enemy com-batant surely remain a vital part of the law ofwar, they most definitely must accommodate thenew threats to the security of nations. The plu-rality’s perspective, by contrast, is mired in themodels of the past, and completely fails to accom-modate the changing nature of warfare.

Changes in military strategy, technology, andinternational relations are synonymous with waritself. As the following historical examplesdemonstrate, the law of war has always accom-modated new circumstances in order to effectuateits core principles and purposes.

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An early example of such accommodation is theadaptation of the combatant category to theemergence of “guerilla” fighters. Before the CivilWar, guerilla fighters, defined as “[i]rregulararmed bodies or persons not forming part of theorganized forces of a belligerent . . . who engagedin the killing, disabling and robbing of peaceablecitizens or soldiers . . . from motives mostly ofpersonal profit or revenge,” were relativelyunknown. Winthrop, supra, at 783-84.

Because this type of warrior was new, Unionmilitary commanders were unsure whether theseguerilla fighters should be treated as “ordinarybelligerents and be given the same rights as pris-oners of war” or as unlawful belligerents, subjectto trial and punishment by the military. LouisFisher, Military Tribunals & Presidential Power:American Revolution to the War on Terrorism 73(2005). The leading military scholar of the day,Dr. Francis Lieber, opined that the treatment ofsuch guerillas depended on whether they werefighting lawfully or unlawfully and that anabsence of uniform should not be considered deci-sive. Id. at 73-74. If captured during a “fair fightand open warfare,” then guerillas should betreated as prisoners of war. However, if fightingin stealth, such as by disguise or concealment,then guerillas could be punished as unlawful bel-ligerents. Id. This opinion would later appear inDr. Lieber’s landmark military code, which“heavily influenced” the future Hague andGeneva Conventions. Id. at 71-75.

Likewise, the category of unlawful weapons,though consistent in principle, has “increased inmodern times” with the development of new and

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more devastating weaponry. Winthrop, supra, at784. Given the frequency of technologicalchanges and advancements in war weaponry, thelist of legitimate and illegitimate weapons hasnecessarily changed “with the progress of inven-tive science.” Id.; see also Protocol I, art. 36(requiring Parties to determine whether any“new weapon, means or method of warfare” ispermissible). Thus, in just the last century, var-ious types of chemical and biological weaponshave been deemed to be unlawful means of war-fare, probably because “in disabling or causingdeath, [they] inflicted a needless, unusual andunreasonable amount of torture or injury.”Winthrop, supra, at 784.

In addition to changes in who participates inwars and how wars are fought, the law of warhas also accommodated transformations in inter-national relations. Historically, the law of waronly applied when nation-states declared waragainst each other. However, the United NationsCharter now regulates “armed conflict,” in theform of “‘armed attack,’ ‘use of force,’ and‘threat[s] to the peace.’” Bradley & Goldsmith,supra, at 2061 (quoting U.N. Charter art. 2, 42,51). Given this, “the international law role fordeclarations of war has largely disappeared” and“armed conflict” is now the “relevant jurisdic-tional concept” for the law of war. Bradley &Goldsmith, supra, at 2061. The Geneva Conven-tions of 1949 recognized this change when itstated that the law of war applies not only whenthere is a declared war but also when there is“any other armed conflict which may arise.” See,

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e.g., Third Geneva Convention art. 2; see alsoBradley & Goldsmith, supra, at 2061.

My purpose is not to applaud or condemn thisor that particular in the changing law of war. Ilist but a few examples of how the law of war hasaccommodated altered circumstances, but theyserve to demonstrate a larger point: in order toeffectuate its purposes, the law of war has neverremained static. If other principles of the law ofwar have changed, there should be nothingchangeless or immutable about the definition ofenemy combatant.

C.

The current struggle against global terrorismbears some of the hallmarks of traditional war: itconsists of armed enemies fighting over politicaland ideological goals. However, other character-istics are clearly new.

First, and most importantly, is the change inwho fights war. The law of war was initiallydesigned to regulate encounters between nation-states. However, the greatest threats to ournation’s security now include stateless actors. Nolonger are our enemies tethered to individualnations; instead, they are diffuse organizationscomprised of citizens from many different coun-tries around the globe. Put simply, while terror-ism may find support and sponsorship fromnation-states, it does not need to be a state-basedenterprise.

Congress specifically recognized the emergenceof the threat presented by stateless actors whenit authorized the President “to use all necessary

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and appropriate force against those nations,organizations, or persons he determines planned,authorized, committed, or aided the terroristattacks that occurred on September 11, 2001.”AUMF, 115 Stat. 224 (emphasis added).

Second, the means employed by terrorists “rep-resent[ ] [a] breakdown” in the “political codefirst worked out in the second half of the nine-teenth century and roughly analogous to the lawsof war worked out at the same time.” Walzer,supra, at 198. Although terrorist-like acts havealways occurred in war, modern terrorism—thatis, “the random murder of innocent people”—“emerged as a strategy of revolutionary struggleonly in the period after World War II.” Id. Mod-ern terrorists typically blend into the surround-ing community and deliberately strike at softtargets, such as office buildings and other venuesin the public square. This makes the “battlefield”in the current conflict essentially unbounded,and renders the traditional indicia used to deter-mine enemy combatant status, such as appear-ance on a battlefield and the wearing of auniform, woefully unreflective of the risks posedby terrorist organizations.

Finally, the changes in warfare discussed pre-viously—the presence of stateless terroristsintent on targeting innocent civilians—are mag-nified by the fact that weapons of mass destruc-tion, whether chemical, biological, or nuclear innature, are more readily available. See RichardA. Posner, Not a Suicide Pact: The Constitutionin a Time of National Emergency 2 (2006) (dis-cussing the potential effects of a terrorist strikewith weapons of mass destruction). Put simply,

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the consequences of not addressing these risksare vastly greater today than they were a gen-eration ago. Today, a single terrorist can killthousands upon thousands of civilians in aninstant. It simply cannot be the case that the lawof war must be so bound in obsolescence that ithinders a nation’s ability to recognize newthreats.

The plurality surprisingly resists the idea thatthe law of war has evolved as it applies to thesechanged circumstances. Ante at 49. This wouldseem to ignore the fact that the events of 9/11even happened; all who witnessed or rememberthem have no doubt that warfare has reached anew and more dangerous phase. Still, the plu-rality insists that I offer “no legal authority” forthe assertion that the law of war has in fact beenevolving. Id. But the legal authority is there. Infact, the legal authority is right before the plu-rality’s eyes. In the AUMF Congress certainlyaccepted what the plurality does not: that thetraditional principles of the law of war can beadapted to changed circumstances. The text ofthe AUMF recognizes that traditional conceptssuch as “battlefield” and “nationality” do not cap-ture the risks presented by terrorists bent onreplicating the events of 9/11. The plurality con-tends, however, that Congress’s view of law ofwar principles should make not the slightest con-stitutional difference. See ante 49 n.24. In notpermitting the democratic branches to take intoaccount changes in modern warfare the pluralityplainly traps this nation in a time warp. And indenying Congress’s expression under the AUMFany and all constitutional effect, the plurality

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continues its course of reading the Article I § 8war power right out of the document. Id.

In passing the AUMF, Congress sought to rec-ognize that the world around us changes; in con-trast, the plurality’s view of that world remainsquite dangerously static. In fact, while the plu-rality propounds its view in the guise of inter-preting the AUMF, its interpretation—and itscommitment to quaint notions of battlefields andnationality—is so textually incorrect, that it ishardly speculative to suppose that the plurality’sinterpretation is propounded as a constitutionallimitation on the executive as well. Whatever thecase may be, it binds the nation to law of warconcepts that even the most casual observer ofmodern terrorist tactics would never accept.

D.

It is undisputed that enemy combatants, ifproperly classified as such, may be detained bythe military. See Hamdi, 542 U.S. at 516-19, 533-35. Who then may be classified by Congress, act-ing pursuant to our Constitution, as an enemycombatant? The Supreme Court insists we con-sult the law of war. Having examined the law ofwar and considered the recent changes in war-fare and international relations, I believe thatthree criteria best identify who qualifies as anenemy combatant in the current conflict.

I do not suggest that these are the only criteriathat might be set forth. Nor would I be so pre-sumptuous as to suggest that these criteria willeliminate the prospect of difficult cases. I do,however, think it is critical to develop some gen-

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eral rules so that cases such as al-Marri’s may beresolved on a principled rather than an ad hocbasis. In fact, until some general guidance is setforth, the executive will have no idea which mil-itary detentions are permissible and which areplainly beyond constitutional bounds. And with-out general guidance, the fear and specter of anopen-ended executive detention power of personslawfully in this country will remain.

Thus, while I do not for a moment contend thatany set of criteria will be free from difficulty, I doemphatically contend that these three criteriaconform to the evolving principles of the law ofwar; that they apply the limiting principle onenemy combatant detentions that the govern-ment has failed to suggest; and that they shouldavoid the serious “constitutional concerns” thatthe plurality and various amici raise, if theAUMF were held, as I believe it must be, to allowthe detention of an enemy combatant appre-hended on American soil. See ante at 20.

The first two criteria determine who consti-tutes an “enemy.” Historically, the conception of“enemy” has been nation-based. However, as dis-cussed in the prior section, nations are no longerthe only entities that engage in armed conflict.Rather, stateless actors, most prominently ter-rorist organizations, are now a pressing militarythreat to the security of America.

Given these realities, an “enemy” is any indi-vidual who is (1) a member of (2) an organizationor nation against whom Congress has declaredwar or authorized the use of military force.Taken together, these two criteria closely tracktraditional law of war concepts that distinguish

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enemies from non-enemies. At the same time,they recognize that modern military threatsinclude those posed by non-state actors.

I first address the criterion of membership.While the traditional requirement of residency orother affiliation with an enemy nation stillapplies, the advent of enemy organizationsrequires a functional equivalent to residency forthis new stateless actor. This is achieved by therequirement of membership in the enemy orga-nization. Because membership may be consideredmore amorphous than residency or citizenship, itis important that there be identifiable facts thatindicate such affiliation with the enemy organi-zation. Such indicia of membership may include:self-identification with the organization throughverbal or written statements; participation in thegroup’s hierarchy or command structure; orknowingly taking overt steps to aid or participatein the organization’s activities. See, e.g., Bradley& Goldsmith, supra, at 2114-15.8 Thus, for exam-ple, someone who sends money to “a nonprofitcharity that feeds Afghan orphans” that unknow-ingly makes “its way to al Qaeda” would not be amember of the al Qaeda organization, and it is

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8 The plurality chides me for referencing the works of“distinguished legal academics.” Ante at 40 n.20. I of coursemake no apologies for drawing upon the work of distin-guished scholars when attempting to discern the constitu-tional framework within which this question of firstimpression must be located. Indeed, to rule out any relianceupon those who have studied and reflected on these ques-tions seems to me a form of “know-nothingism” in which mydistinguished colleagues in the plurality have also wiselydeclined to indulge.

beyond hyperbole for the plurality to suggest oth-erwise. Ante at 19. Furthermore, the membershiprequirement is important because it aids in dis-tinguishing those who are the enemy from thosewho merely sympathize with the enemy.

The second criterion—congressional autho-rization—recognizes that Congress may autho-rize the use of military force against non-stateactors, such as terrorist organizations, as it hasalready with the AUMF. By contemplating suchauthorization, this second criterion appropriatelyexcludes from the category of “enemy” those per-sons or groups against whom Congress has notauthorized the use of military force. Thus, thenotion that any individual affiliated with anorganization engaged in purported terroristactivities—such as the “environmental group”mentioned by the plurality—could be consideredan enemy combatant is completely unfounded.Ante at 37 n.18. For certain, there are many indi-viduals and organizations engaged in unlawfulconduct, and even terrorism. But most of theseindividuals and organizations have nothing to dowith al Qaeda, its affiliates, or the September 11attacks. Under this criterion, such persons wouldnot be eligible for military detention under theAUMF. This is both consistent with our tradi-tional conception of who should and should not beeligible for detention and appropriate in light ofthe constitutional imperative that militarydetention be the exception and not the rule.Indeed, not to require congressional authoriza-tion for such detentions in this country splits theground beneath the war powers right in two.

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If the first two criteria address who in modernwarfare is the enemy, the third criterionaddresses who is the combatant. Historically,this distinction has separated those with militaryaims from those who do not present a threat toopposing forces. Though yesterday’s soldier hasbeen replaced, at least in part, by those whoeschew the conventions of lawful warfare, thepurpose underlying this distinction remainsunchanged. In light of today’s realities, a “com-batant” is a person who knowingly plans orengages in conduct that harms or aims to harmpersons or property for the purpose of furtheringthe military goals of an enemy nation or organi-zation. Like the first two criteria, this require-ment closely tracks the relevant traditional lawof war rules.

Under this criterion, those who use military-like force against American soldiers or civiliansobviously qualify as combatants. Similarly, mem-bers of an enemy sleeper terrorist cell that havetaken steps, even if preliminary in nature,toward an act of destruction are also consideredcombatants. Conversely, persons traditionallyconsidered civilians, such as members of theenemy organization who do not possess hostile ormilitary designs, are non-combatants and maynot be detained by the military. This includespersons who would clearly be non-combatants,such as a “physician who treated a member of alQaeda,” because they intend no harm to personsor property. Ante at 20. Such persons would notbe subject to military detention.

Two further examples may help illustrate thescope of this framework. First is a person who

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joins a terrorist organization after Congress hasauthorized the use of military force against therespective group. In the present conflict, thiswould include new recruits to al Qaeda or itsaffiliates after 9/11. Under the above criteria,such persons are clearly part of the “enemy,”even if they were not members of the targetedorganization at the time Congress initially acted.This is because it was the organization and itsaffiliates, and not just the then-members of suchgroups, against whom Congress authorized theuse of force. See AUMF, 115 Stat. 224 (authoriz-ing the use of “all necessary and appropriateforce against those . . . organizations [that] . . .committed” the 9/11 attacks, “in order to preventany future acts of international terrorism”).Thus, in the current conflict, any “individual canbecome part of a covered ‘organization’ by joiningit after the September 11 attacks.” Bradley &Goldsmith, supra, at 2110. As a result, such aperson, if also a combatant, would be eligible formilitary detention.

Second is a person who commits, or plans tocommit, a terrorist act but is not otherwise affil-iated with an organization or country covered bya congressional proclamation. Timothy McVeighis one example that comes to mind. Because sucha person is not a member of an enemy organiza-tion, he may not be detained as an enemy com-batant under the above criteria. Indeed,Congress has never declared war against a singleindividual or even a discrete conspiracy (unlessthe Barbary pirates qualify), and it is difficult toenvision a scenario in which it would. This isunsurprising, in part because prosecutions of

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individual terrorists do not ordinarily presentthe same sort of logistical, informational, andevidentiary problems as large scale terrorist net-works or nations. See supra Section II.

However, this in no way suggests that the exec-utive is prohibited from acting preventively insuch instances. Rather, it simply means that thethreat posed by such an individual must beaddressed pursuant to more traditional statutoryprocedures, such as a material witness warrant,see 18 U.S.C. § 3144, or indictment under anynumber of potentially relevant criminal statutes,see, e.g., 18 U.S.C. § 2332a (prohibiting thethreatened, attempted, or actual use of a weaponof mass destruction); 18 U.S.C. § 2332b (pro-hibiting acts of terrorism transcending nationalboundaries); 18 U.S.C. § 2332f (prohibiting thebombing of places of public use or governmentfacilities); 18 U.S.C. § 1751 (prohibiting assas-sinating or conspiring to assassinate the Presi-dent or Vice President of the United States); 49U.S.C. § 46502(a)(2) (prohibiting committing orconspiring to commit aircraft piracy); 18 U.S.C.§ 844(f) (prohibiting the damage or destruction ofany personal or real property of the UnitedStates). In short, such a person can surely bedetained and neutralized, but not through themeans of military detention.

In sum, the following three criteria must bemet in order for someone to be classified as anenemy combatant: the person must (1) be a mem-ber of (2) an organization or nation against whomCongress has declared war or authorized the useof military force, and (3) knowingly plans orengages in conduct that harms or aims to harm

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persons or property for the purpose of furtheringthe military goals of the enemy nation or orga-nization.

These three criteria reach beyond those of theplurality because they may constitutionallyinclude, if Congress so authorizes, personsarrested outside any formal battlefield, personsnot in uniform, and persons arrested on Ameri-can soil. The criteria are at the same time lim-ited, however, and should not be construed asgranting the executive a blank check to brandcertain domestic groups as subversive and mili-tarily detain whomever it pleases. Indeed, underthese criteria, there are at least three significantlimitations on the executive’s ability to militar-ily detain persons lawfully residing in the UnitedStates.

First, there is the significant political check ofcongressional authorization. Specifically, absentsome limited inherent authority needed duringtimes of emergency, the executive may onlydetain those persons against whom Congress hasauthorized the use of force. If history is any indi-cator, Congress does not take such a decisionlightly. Indeed, it was the dire events of Septem-ber 11th that gave rise to the use of militaryforce in the present instance, and it is likely thatonly emergencies of similar magnitude will trig-ger a similar response.

Second, even if Congress were to authorize theuse of military force against a particular group,it would not be authorizing the executive to makea sweep on the basis of mere membership. This isbecause membership, without more, is notenough to qualify as an enemy combatant under

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my proposed criteria. Rather, the person in question must have taken steps to further themilitary goals of the organization. Thus,McCarthy-like accusations of mere group mem-bership would not suffice as a basis for detention.

Third, persons subject to military detention areafforded the opportunity to challenge the accu-racy of their detention before a neutral deci-sionmaker in accordance with the frameworkarticulated in Hamdi. This ensures that the gov-ernment possesses sufficient evidence to justifya measure as serious as military detention.

Given these checks on executive power, anyfear of massive roundups or reckless disregardfor human liberty would be misplaced.

Furthermore, these criteria accommodaterecent changes in a manner that is consistentwith the law of war’s principles and purposes.For instance, one of the purposes of the enemycombatant category is to limit the number of peo-ple subject to military force, including militarydetention, to those who threaten military harm.Each of the above criteria serve that purpose, asthey exclude persons who are not members ofenemy organizations as well as persons in suchgroups who do not try to do harm. Another pur-pose of the category is to determine which per-sons may be properly detained in order toeliminate the threat they pose. The above crite-ria are also consistent with that purpose, as theyallow the military to detain, without fear of hav-ing to release because of an inability to prose-cute, those who present real and serious threatsto our security and safety.

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E.

In addition to comporting with traditional lawof war principles and purposes, these three cri-teria are also in line with all Supreme Court andcircuit precedent on the matter. See Ex parteQuirin, 317 U.S. 1 (1942); Hamdi v. Rumsfeld,542 U.S. 507 (2004) (plurality op.); Padilla v.Hanft, 423 F.3d 386 (4th Cir. 2005). Althougheach of those cases declined to delineate the fullscope of the category, see Quirin, 317 U.S. at 45-46; Hamdi, 542 U.S. at 516; Padilla, 423 F.3d at391-92, the criteria articulated here are plainlyconsistent with their pronouncements about who,at a minimum, qualifies as an enemy combatant.See Quirin, 317 U.S. at 37-38 (finding that peoplewho “associate themselves with the military armof the enemy government, and with its aid, guid-ance and direction enter this country bent onhostile acts” qualified as enemy combatants);Hamdi, 542 U.S. at 516 (finding that someonewho was “part of or supporting forces hostile tothe United States or coalition partners inAfghanistan and who engaged in an armed con-flict against the United States there” qualified asan enemy combatant) (internal quotations omit-ted); Padilla, 423 F.3d at 389 (finding that some-one “who is closely associated with al Qaeda, anentity with which the United States is at war;who took up arms on behalf of that enemy andagainst our country in a foreign combat zone ofthat war; and who thereafter traveled to theUnited States for the avowed purpose of furtherprosecuting that war on American soil, against

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American citizens and targets” qualified as anenemy combatant) (emphasis omitted).

Moreover, these criteria clearly do not runafoul of three potential constitutional concerns.First is the scope of the executive’s power underArticle II. It is widely accepted that the Presi-dent has some inherent constitutional powers,particularly to act in times of emergency whenlarge numbers of American lives may be at stake.See The Federalist No. 70, at 392 (AlexanderHamilton) (Clinton Rossiter ed., 1999) (notingthat the executive branch possesses many qual-ities, such as “[d]ecision, activity, secrecy, anddispatch,” that are essential to the prosecution ofa war); The Federalist No. 74, at 415 (Hamilton)(“Of all the cares or concerns of government, thedirection of war most peculiarly demands thosequalities which distinguish the exercise of powerby a single hand.”). Though the scope of thosepowers is much debated, we need not address thespecific contours of the powers here. This isbecause the Court in Hamdi—a case much likethis one where no immediate exigency was pre-sent—implicitly found no Article II problem whendefining the scope of the enemy combatant cate-gory, as I do here, in accordance with the law ofwar. See Hamdi, 542 U.S. at 518-521. In addi-tion, no other relevant authority indicates thatthese criteria would impinge on the President’sinherent operational authority as commander-in-chief or his ability to act in times of true emer-gency.

Second is the Court’s decision in Hamdi, whichrequired under the due process clause that Amer-ican citizens detained as enemy combatants “be

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given a meaningful opportunity to contest thefactual basis for that detention before a neutraldecisionmaker.” Hamdi, 542 U.S. at 509.Whereas Hamdi established the procedures towhich at least one type of enemy combatant wasentitled, the criteria discussed above address theantecedent question of who qualifies as an enemycombatant. Put another way, this approach artic-ulates a substantive legal definition of enemycombatant, whereas Hamdi enables one class ofalleged combatants to procedurally challenge thefactual basis of their detention. In short, Hamdidoes not present any constitutional problem tothe category of enemy combatant as defined bythese criteria.

Finally, these criteria do not contravene theprinciples established in Ex parte Milligan, 71U.S. (4 Wall.) 2 (1866). In that case, the Courtestablished the bright-line rule that civiliansmay not be tried by military authorities if thecivilian courts are open and functioning. Id. at121. However, as the Court made clear in Quirin,this principle only applies to persons who are notenemy combatants. See Quirin, 317 U.S. at 45(emphasizing that Milligan “was a non-belliger-ent” and thus “not subject to the law of war”).Put simply, the Court in Milligan was notaddressing the definition of enemy combatant butrather the circumstances under which martiallaw (which permits the military trial of civilians)may be declared. Thus, the principles laid downin Milligan apply only after it has been deter-mined that the individual in question is a civil-ian, not a combatant. The framework delineatedabove addresses the earlier question of who qual-

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ifies as a combatant and thus any reliance onMilligan would be misplaced.

Thus, the plurality’s suggestion that the deten-tion of al-Marri would “so alter the constitutionalfoundations of our Republic” as to “render [them]lifeless” is patently incorrect. Ante at 63. For thereasons discussed, al-Marri’s detention perfectlyaccords with the Constitution. In fact, it is dif-ficult to square the plurality’s expressed concernover the constitutionality of al-Marri’s detentionwith its express questioning of our effort toestablish constitutional limits that bind “both theexecutive and legislative branches.” Ante at 49. Itis further curious that the plurality should takeexception to an inquiry that Boumedieneinstructs us to undertake. See Boumediene, slipop. at 59 (stating that the executive’s authoritydepends not only on what the AUMF authorizes,but also on what “the Constitution permits”).Regardless, to the extent that the plurality’serroneous interpretation of the AUMF in thiscase was influenced by constitutional concerns,these concerns were unfounded.

F.

The description of the general frameworkmakes possible a straightforward resolution ofthe specific question of whether the executive hasthe authority to detain al-Marri as an enemycombatant. The framework also permits the deci-sion to be made in a principled, rather than adhoc, fashion, and consistent with the constitu-tional limitations on who may be militarilydetained.

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As discussed earlier, the Supreme Court heldthat the AUMF grants the President the author-ity to detain enemy combatants. See Hamdi, 542U.S. at 518. Since Congress did not articulate aspecific definition of “enemy combatant” in theAUMF, I have looked to the law of war for guid-ance in determining the scope of the President’sdetention authority under the statute. Id. at 518-21.9

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9 In the Military Commissions Act of 2006 (“MCA”),Congress defines “lawful enemy combatant” as a person whois:

(A) a member of the regular forces of a State partyengaged in hostilities against the United States;(B) a member of a militia, volunteer corps, or orga-nized resistance movement belonging to a Stateparty engaged in such hostilities, which are underresponsible command, wear a fixed distinctive signrecognizable at a distance, carry their arms openly,and abide by the law of war; or(C) a member of a regular armed force who pro-fesses allegiance to a government engaged in suchhostilities, but not recognized by the United States.

Military Commissions Act of 2006, Pub. L. No. 109-366,§ 948a(2), 120 Stat. 2600, 2601.

Furthermore, the MCA defines “unlawful enemy com-batant” as “a person who has engaged in hostilities or whohas purposefully and materially supported hostilitiesagainst the United States or its co-belligerents who is not alawful enemy combatant (including a person who is part ofthe Taliban, al Qaeda, or associated forces),” or “who, before,on, or after the date of the enactment of the [MCA], has beendetermined to be an unlawful enemy combatant by a Com-batant Status Review Tribunal or another competent tri-bunal.” Id. § 948a(1).

Though informative in some respects, these definitionsare of limited assistance and relevance in this case. This is

Based on the criteria identified and the factsalleged, al-Marri easily qualifies as an enemycombatant. To begin, he satisfies the two criteriaused to define an “enemy.” The AUMF authorizesthe use of force against al Qaeda, and al-Marrihas clearly taken the steps necessary to be con-sidered a member of the organization. Not onlydid he attend an al Qaeda terrorist camp inAfghanistan, but he also subsequently cultivatedrelationships with the most senior members ofthe al Qaeda organization: he met personallywith Osama bin Laden and volunteered to martyrhimself for the al Qaeda cause; he entered theUnited States as a sleeper agent under the direc-tion of Khalid Shaykh Muhammed, the master-mind of the 9/11 attacks; and he receivedsubstantial funding for his mission from MustafaAhmed al-Hawsawi, the financial facilitator ofthe 9/11 attacks.

Furthermore, al-Marri’s behavior was that of a“combatant.” He did not arrive here with peace-ful purposes in mind. At the time he wasdetained, al-Marri was in the process of prepar-ing cyanide attacks against American civiliansand technological attacks on the U.S. financialsystem. Therefore, it is clear that he knowingly

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because they apply only to the detainees tried by militarycommissions established by the MCA, namely aliens who areunlawful enemy combatants as defined by the MCA. Id.§ 948b-c. Thus, these provisions do not specifically addressthe scope of the President’s detention power under theAUMF nor the definition of “enemy combatant” for purposesother than the military commissions under the MCA. SeeRichard H. Fallon, Jr. & Daniel J. Meltzer, Habeas CorpusJurisdiction, Substantive Rights, and the War on Terror, 120Harv. L. Rev. 2029, 2109 (2007).

planned to engage in conduct that aimed to harmboth life and property. In addition, the directionhe received from the hierarchy of al Qaeda indi-cates that his terrorist actions were undertakento further the military goals of that enemy orga-nization.

Although al-Marri fits easily within the defi-nition of enemy combatant and may therefore bemilitarily detained, there will undoubtedly beharder questions concerning the scope of thePresident’s detention authority in the future.Novel legal problems concerning the proper bal-ance between liberty and security will continueto arise as the struggle against terrorism pro-ceeds. While I respect those who feel differently,I believe the constitutional authority of the exec-utive to detain al-Marri pursuant to clear con-gressional directive is evident. It matters notthat al-Marri was not in uniform, that he was noton some foreign battlefield, or that he was not inthe service of a nation’s armed forces. It mattersnot that his status was that of a lawful alien,that he was arrested on American soil where thethreat of belligerency may be greatest, or that hewas detained militarily rather than prosecutedby civil authority. To hold that these things man-date a grant of the writ requires this country toface contemporary threats of grave dimensionshackled by outmoded notions of the law of war.To rule for al-Marri is to set judicial authority inmatters of armed conflict above the combinedwill and expression of both Congress and theexecutive. To hold in petitioner’s favor wouldhobble the political branches in performing themost basic function that the Framers allocated to

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them—that of providing for the safety and pro-tecting the lives of those they represent, the peo-ple of America.

IV. AL-MARRI RECEIVED THE PROCESSHE WAS DUE.

The concurring opinion in this case (the opin-ion authored by Judge Traxler) finds that al-Marri may be detained as an enemy combatantunder the AUMF. As expressed earlier in thisopinion, I share fully my good colleague’s viewson this matter.

My agreement ends there, however. The con-currence asserts that “the process afforded al-Marri” to challenge his detention “did not meetthe minimal requirements of due process guar-anteed by the Fifth Amendment.” Ante at 64-65.I think this view is in error, and its consequencesare serious.

The district court offered al-Marri each of theprocedures required by the Supreme Court’sHamdi decision, but al-Marri believed he wasentitled to something akin to a full criminal trialand refused to avail himself of any of these pro-tections. As a result, it is quite wrong to suggestthat al-Marri did not receive the full benefits ofdue process as articulated by what all concede isthe most relevant Supreme Court decision. Inaddition, al-Marri also received protections thatsatisfied any requirements that the SupremeCourt’s recent decision in Boumediene could rea-sonably be read to impose.

Al-Marri asserts that due process requiresadditional procedures be afforded him because hewas not a “person initially detained . . . on a bat-

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tlefield in Afghanistan.” Ante at 85-88. But theseadditional procedural safeguards are notrequired by Hamdi, and there is no necessaryconnection between the lack of a foreign battle-field presence and the need for enhanced proce-dural protections. In fact, as discussed earlier inthis opinion, a sleeper agent hiding in the UnitedStates may present a more serious securitythreat and raise more pronounced evidentiaryproblems than an enemy soldier located on a bat-tlefield.

Moreover, nothing could be more contrary tothe Supreme Court’s due process jurisprudencethan the ab initio imposition of inflexible proce-dural requirements based on artificial and cate-gorical distinctions. Procedures should beordained not at the outset but as necessary toensure accurate determinations. To impose suchrequirements ab initio disregards the “prudentand incremental” approach required by Hamdiand neglects the fact that accuracy must be thetouchstone of any procedural due process inquiry.Hamdi, 542 U.S. at 539; see also Boumediene,slip op. at 52.

The approach of my concurring colleague willthus have significant consequences. By forsakingHamdi and categorically insisting on more rig-orous procedural safeguards at the outset of al-Marri’s habeas hearing, the concurrence wouldaccomplish through constitutional means much ofwhat the plurality would accomplish throughstatutory interpretation, namely a future dis-ablement of legitimate legislative efforts toauthorize Hamdi-style proceedings for even the

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most dangerous terrorist suspects within thiscountry.

A.

A brief review of the proceeding below willillustrate the soundness of the district court’sapproach. In July 2004, counsel filed a petitionfor a writ of habeas corpus on al-Marri’s behalf inthe District of South Carolina. The petitionclaimed that al-Marri could not be detained as anenemy combatant, and that the government hadto either criminally charge or release him. In thealternative, al-Marri sought a hearing at whichhe would be able to challenge, with the assis-tance of counsel, the factual basis for his deten-tion. It should be noted that al-Marri has had theassistance of counsel in every proceeding sincethe filing of this habeas petition.

One year later, after further pleadings fromeach party, the district court determined that,based on the facts alleged, al-Marri could bedetained as an enemy combatant. See Al-Marri v.Hanft, 378 F. Supp. 2d 673, 680 (D.S.C. 2005).The district court further recognized that, underthe Supreme Court’s Hamdi decision, al-Marrihad the right to challenge the factual basis of hisdetention at a hearing that satisfied the consti-tutional requirements of procedural due process.See id. at 681-82. The district court referred thecase to a magistrate judge to determine whatprocess was constitutionally due al-Marri underHamdi. See id. at 682.

In proceedings before the magistrate judge, al-Marri sought procedural protections similar to

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those afforded civilian criminal defendants, suchas extensive discovery rights and an opportunityto cross-examine the government’s sources,including high-level Department of Defense offi-cials. See ante at 83 & n.8. The magistrate judgerefused to provide al-Marri with these extensiveprotections, however, and instead adopted incre-mental procedures consistent with the burden-shifting approach outlined in Hamdi. SeeAl-Marri v. Wright, 443 F. Supp. 2d 774, 778-80(D.S.C. 2006). First, it required the governmentto provide notice of the factual basis for al-Marri’s detention. Next, if the government wasable to produce credible evidence that al-Marriwas indeed an enemy combatant, the burdenwould shift to al-Marri to rebut the government’sevidence. Finally, the magistrate judge notedthat, if al-Marri met his burden by presenting“more persuasive evidence,” the governmentwould either have to release al-Marri or partici-pate in a “full-blown adversary hearing,” whichwould include “greater procedural and eviden-tiary safeguards” than the first stage of the bur-den-shifting process. J.A. 191.

Pursuant to these procedures, the magistratejudge found that the Rapp Declaration—which,as described earlier, presented the government’sevidence supporting al-Marri’s detention, seesupra at 135—satisfied the government’s initialburdens of providing al-Marri with notice of thefactual basis for his detention and producingcredible evidence that al-Marri was indeed anenemy combatant. The magistrate judge thengave al-Marri sixty days to present rebuttal evi-dence.

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During this sixty day period, al-Marriprotested that his ability to respond to the RappDeclaration was impeded by the fact that largeportions of the Declaration were classified and,therefore, unavailable to him. The magistratejudge agreed with al-Marri and advised the par-ties that, in determining whether an adversaryhearing was necessary, he would only considerevidence disclosed to al-Marri. In response tothis ruling, the government filed an updated ver-sion of the Rapp Declaration, with many portionsdeclassified.

Al-Marri subsequently filed a response to theupdated Rapp Declaration. In his response, al-Marri generally denied the government’s claims,but “decline[d] . . . to assume the burden of prov-ing his own innocence.” Al-Marri, 443 F. Supp. 2dat 784. Claiming that the procedures developedby the magistrate judge were “unconstitutional,unlawful, and un-American,” al-Marri refused tooffer any sort of rebuttal to the government’s evi-dence. Id.

Because al-Marri failed to offer “any evidenceon his behalf,” the magistrate judge recom-mended the dismissal of al-Marri’s petition. Id.at 785 (emphasis in original). The district courtsubsequently conducted a de novo review of theproceedings before the magistrate judge, andover al-Marri’s objections, adopted the magis-trate judge’s recommendations in full. See id.Because al-Marri failed “beyond question” torebut his “classification and detention . . . as anenemy combatant,” the district court dismissedal-Marri’s habeas petition. Id.

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B.

The district and magistrate judges handledthis case admirably. I can find no fault with theirconclusion that the habeas proceedings providedal-Marri satisfied Hamdi ’s due process require-ments.

As Hamdi made clear, a detainee held in theUnited States has the right to challenge his clas-sification as an enemy combatant.10 Though notentitled to a full criminal trial, enemy combat-ants are entitled to the “core” protections thatconstitute the “minimum requirements of dueprocess.” Hamdi, 542 U.S. at 535, 538. These coreprocedural rights are threefold: first, a detainee“must receive notice of the factual basis for hisclassification”; second, a detainee must have “afair opportunity to rebut the Government’s fac-tual assertions”; and, third, the hearing mustoccur “before a neutral decisionmaker.” Id. at533. The Hamdi opinion repeatedly makes clearthat it is these three “essential constitutionalpromises [that] may not be eroded.” Id.

Even a brief examination of al-Marri’s pro-ceedings demonstrate that he received the bene-fit of each of these “essential promises.” To begin,the district court was unquestionably a “neutraldecision-maker.” Similarly, al-Marri certainly

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10 Specifically, Hamdi established a framework foradjudicating the habeas petitions of “citizen-detainee[s].”Hamdi, 542 U.S. at 533. Although both the government andal-Marri address the issue of whether lawful aliens are enti-tled to the same level of protection as citizens, I need notresolve the issue for the purposes of this case. This isbecause the procedures provided al-Marri are sufficientunder any reading of Hamdi.

received sufficient “notice of the factual basis forhis classification.” In fact, the magistrate explic-itly stated that he would only consider informa-tion made available to al-Marri whendetermining whether al-Marri was indeed anenemy combatant.

To this end, the government put forth the RappDeclaration, which contained extensive evidenceof al-Marri’s affiliation with al Qaeda and hisdestructive designs. For instance, it alleged thatal-Marri attended an al Qaeda terrorist trainingcamp in Afghanistan for fifteen to nineteenmonths; that he subsequently cultivated personalrelationships with the most senior members ofthe al Qaeda hierarchy, including Osama binLaden, Khalid Shaykh Muhammed, and MustafaAhmed al-Hawsawi; that he wanted to martyrhimself for the al Qaeda cause; and that he wasplanning to commit chemical and technologicalattacks in the United States. See supra at 135.This detailed information certainly provided al-Marri with sufficient notice of the factual basisfor his detention.

Likewise, al-Marri was provided a “fair oppor-tunity to rebut the Government’s factual asser-tions.” The magistrate judge gave al-Marri sixtydays to respond to the Rapp Declaration, andstated that a “full-blown adversary hearing”would follow if al-Marri was able to adequatelyrebut the government’s evidence. Since the gov-ernment relied almost exclusively on evidencedirectly imputable to him, al-Marri had personalknowledge of the government’s factual basis, and,therefore, ample ability to offer a meaningfulresponse. Put simply, the procedures developed

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by the magistrate judge provided al-Marri a“fair” and “meaningful” opportunity to be heardin his own defense, and thus were more than suf-ficient under Hamdi. Hamdi, 542 U. S. at 533.

The Supreme Court’s recent decision in Boume-diene does not change this analysis. To begin, theCourt in Boumediene explicitly distinguished thequestion of what procedures are required underthe Suspension Clause from the question of whatprocedures are required under the Due ProcessClause. See Boumediene, slip op. at 55-56. Indoing so, the Court explicitly stated that it made“no judgment” as to the issue addressed inHamdi and presented by al-Marri’s case: whatprocess is constitutionally due to a detaineewhen “[t]he § 2241 habeas corpus processremained in place.” See Boumediene, slip op. 55,56.

Thus, Hamdi is still the controlling opinion forour inquiry, and it is therefore our duty to applyit. Moreover, even if Boumediene were applicableto the matter before us, the process employed bythe district and magistrate judges would still beconstitutional. Al-Marri received each of the pro-tections required by Boumediene: (1) he wasgiven a “meaningful opportunity” to challengethe legal basis for his detention, (2) his petitionwas considered by a court that had the remedialpower to order his release, and (3) he wasgranted the “ability to rebut the factual basis forthe Government’s assertion that he is an enemycombatant.” Boumediene, slip op. at 50-54. Al-Marri benefitted from the assistance of counseland was aware of the allegations against himfrom the very outset of his proceedings, and

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Boumediene recognized these protections as nec-essary to the extent they aid in challenging thefactual accuracy of a detention, something al-Marri did not do in this case. Id. at 54-55.

In fact, there is every indication that al-Marriwould have received the procedures that Boume-diene could reasonably be read to impose if hehad sought to contest the government’s allega-tions in some way. It is true that Boumedienerecognizes that both the ability to confront wit-nesses and some limit on the government’s use ofhearsay evidence may be necessary to ensurethat a detainee has the capacity “to rebut the fac-tual basis” for his detention. Id. at 54-55. But theCourt in Boumediene never indicated that it wasestablishing procedures to be followed inflexiblyin every case. See id. at 49-50, 57, 58 (noting thatthe “extent of the showing required of the Gov-ernment in these cases is a matter to be deter-mined”). Instead, the Court emphasized thathabeas corpus procedures must be “adaptable” sothat they can assure the petitioner a “meaningfulopportunity” to contest the legal and factualbases for his detention. Id. at 50-54. If al-Marrihad cast any doubt on the accuracy of his deten-tion, there was every indication that the magis-trate and district judges would have done whatwas needed to confirm or to dispel that doubt,including the provision of those procedures thatBoumediene could reasonably be read to require.But severing the need for procedural protectionsfrom the need to reach accurate determinationsloses sight of the whole purpose of due process.

Thus, the problem here was not, as the con-currence alleges, a failure on the part of the

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lower court to provide al-Marri with constitu-tionally adequate procedures, but rather theunwillingness of al-Marri to participate in theprocess set forth under Hamdi in any meaningfulway. Neither the magistrate nor the districtjudge gave al-Marri short shrift, and both wereopen to any evidence al-Marri had to offer.Instead, al-Marri offered nothing. In fact, if ageneral denial were deemed sufficient to bringthe accuracy of the Declaration into question,then the whole Hamdi burden-shifting frame-work would be rendered useless. I thus find itremarkable that al-Marri now complains aboutprocedures he did not even attempt to utilize.Indeed, a civilian criminal defendant cannotrefuse to avail himself of the protections offeredhim at trial and then claim a procedural due pro-cess violation; there should be no reason to treatal-Marri any differently. As the district court cor-rectly recognized, “[n]either due process nor therule of law in general grant a party the right toparticipate only in the court procedures he deemsbest or to present his proof whenever it suitshim.” Al-Marri, 443 F. Supp. 2d at 785.

C.

Although al-Marri received the full benefit ofHamdi’s protections, the concurrence argues thatbecause al-Marri is not “a battlefield detainee,”he is entitled to more rigorous procedural safe-guards than those afforded him by the districtcourt. See ante at 86-89. In particular, the con-currence contends that al-Marri has the right to“requir[e] the government to demonstrate

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through ‘the most reliable available evidence’that he is an enemy combatant.” Ante at 93.Since the district court did not afford al-Marrithis right, the concurrence insists that the pro-ceedings below were unconstitutional.

I cannot agree for two reasons. First, the bat-tlefield/non-battlefield distinction is not to befound in Hamdi and is unreflective of the reali-ties of the current conflict. Second, the imposi-tion of a “most reliable available evidence”requirement rests on a misreading of Hamdi andcontradicts the basic tenets of procedural dueprocess.

1.

I begin with the lynchpin of the concurrence’sopinion: the notion that al-Marri is entitled tomore rigorous procedural protections than thoseguaranteed by Hamdi, because al-Marri wasapprehended in the United States, rather thanon a foreign battlefield, and thus subject to ahigher risk of being erroneously detained. Ante at86-89 & n.13. This categorical imposition of dif-ferent procedural requirements based on a neatdivision between battlefield and homeland isunsound for several reasons.

To begin, the battlefield/non-battlefield dis-tinction is nowhere to be found in Hamdi, thecase on which the concurrence relies. See ante at86-90. Hamdi ’s discussion of the constitutionalrequirements for “enemy combatant proceedings”contains no limitation or qualification based onlocus of capture. Hamdi, 542 U.S. at 533; see alsoid. at 524 (framing the issue as “what process is

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constitutionally due a citizen who disputes hisenemy-combatant status”); id. at 532 (applyingthe Mathews framework to identify a process that“strikes the proper constitutional balance whena United States citizen is detained in the UnitedStates as an enemy combatant”). Indeed, Hamdimakes plain that the procedures required in “theenemy-combatant setting” apply equally to allenemy combatants, not just those captured on aforeign battlefield. Id. at 535.

Furthermore, although the concurrence claimsthat the “risk of erroneously detaining a civilian”is “much greater inside the United States than”on “a conventional battlefield within the bordersof a foreign country,” this is often not the case.Ante at 90. Indeed, the modern battlefield isoften cluttered with shifting alliances and thelack of distinguishing uniforms. One only need tothink of the villages in Vietnam or the hills ofAfghanistan to recognize that discerning friendfrom foe can be very elusive on a foreign battle-field.

Hamdi ’s refusal to categorically distinguishdetainees based on their locus of capture reflectsthe true nature of the current conflict. AsCongress recognized in the AUMF and as thenature of the 9/11 attacks made pellucidly clear,the struggle against al-Qaeda is not bound to for-eign lands or distant shores. See supra at 173-75.The need for legislatively sanctioned proceduresin accordance with the laws of war does not dis-sipate simply because an enemy combatant isapprehended domestically rather than on a for-eign battlefield. See supra at 147-54. In fact, theconcerns underlying the need for more limited

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procedures in enemy combatant hearings, such asthe presence of highly sensitive information andthe risk of such information being transmitted toterrorist networks, confederates, and affiliates, isequally, if not more, pronounced when dealingwith a sleeper al Qaeda agent operating withinour borders.

Despite its contention to the contrary, see anteat 90 n.14, the concurrence thus commits thesame error as the plurality: it categorically restsits decision on an artificial distinction betweenbattlefield and non-battlefield capture. Indeed, itoffers no other meaningful rationale for distin-guishing between the procedures approved of inHamdi and the procedures afforded al-Marri.See, e.g., ante at 85, 86-89 & n.13, 89-90. TheSupreme Court has refused to resolve issues con-cerning the process due enemy combatants basedon the faux simplicity of inflexible categories,and we should not deny the realities of contem-porary conflict by contravening its directive.

2.

In addition to its distinction between battle-field and non-battlefield detainees, the concur-rence develops another procedural innovation:the “most reliable available evidence” require-ment. The requirement posits that al-Marri hasthe right to require the government to produce“‘the most reliable available evidence’ that he isan enemy combatant.” Ante at 91. This require-ment is just as problematic as the attempt to dic-tate the appropriate level of procedure based onthe locus of capture.

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In deriving this standard, the concurrencerelies on the following observation made inHamdi: “[E]nemy combatant proceedings may betailored to alleviate their uncommon potential toburden the Executive at a time of ongoing mili-tary conflict. Hearsay, for example, may need tobe accepted as the most reliable available evi-dence from the Government in such a proceed-ing.” Hamdi, 542 U.S. at 533-34; see ante at 81,88 (quoting Hamdi). Rather than take this com-ment for what it clearly is—an example of howthe procedures afforded enemy combatants needto account for the evidentiary burdens that arefrequently present in such cases—the concur-rence develops a hardline requirement that thegovernment must always show, in its initial pre-sentation, that the evidence offered is the mostreliable evidence available.

Imposing a “most reliable available evidence”standard at the very outset would be a funda-mental misapplication of Hamdi. To begin, thisapproach abandons the careful incrementalismand the actual “burden-shifting scheme” set forthby the Supreme Court in that decision. Hamdi,542 U.S. at 534. As discussed earlier, Hamdi onlyrequires the government to initially “put[ ] forthcredible evidence that the habeas petitionermeets the enemy-combatant criteria.” Id. Thegovernment need not put on further evidenceunless the detainee responds with at least someevidence that “he falls outside the criteria.” Id.By forsaking the framework envisioned byHamdi, the concurrence relieves al-Marri of anyobligation to contest the factual basis of hisdetention.

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The concurrence, however, indicates that theRapp Declaration may be insufficient underHamdi. This is simply not the case. Indeed,Hamdi expressly recognized that the govern-ment’s initial burden may be satisfied by “aknowledgeable affiant” who “summarize[s]” theevidence on which the detention was based.Hamdi, 542 U.S. at 534. Likewise, Hamdi explic-itly held that in an enemy combatant proceeding,“a habeas court . . . may accept affidavit evidencelike that contained in the Mobbs Declaration, solong as it also permits the alleged combatant topresent his own factual case to rebut the Gov-ernment’s” evidence. Id. at 538 (emphasis added).Because the Rapp Declaration is far more exten-sive and detailed than the Mobbs Declaration,the former satisfies the government’s initial bur-den and serves the basic purpose of affordingnotice to al-Marri of why he is detained.

Moreover, beyond being a misapplication ofHamdi, this “most reliable available evidence”approach is also plainly contrary to the funda-mental tenets of procedural due process. As theSupreme Court has repeatedly held, the touch-stone of any due process inquiry must be accu-racy. Indeed, the imposition of additionalprocedural protections has traditionally beenlinked to the ability of those safeguards to pre-vent erroneous deprivations of protected inter-ests. See Mathews v. Eldridge, 424 U.S. 319, 343(1976); Boumediene, slip op. at 50-52; Hamdi,542 U.S. at 529, 534; see also Teague v. Lane, 489U.S. 288, 313 (1989) (noting that due processrequires the retroactive application of “proce-dures without which the likelihood of an accurate

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conviction is seriously diminished”); Laurence H.Tribe, American Constitutional Law, § 10-13, at714 (2d ed. 1988) (noting that the “value [of] pro-cedural safeguards” is primarily determined bytheir potential to minimize “factual error in theapplication of the relevant substantive rules”).

In order to allow for adjustments that helpensure accuracy, the Supreme Court has consis-tently emphasized the need for flexible proce-dures that would permit district courts to employprotections pursuant to the “demands” presentedby a “particular” case. See Morrissey v. Brewer,408 U.S. 471, 481 (1972); see also Boumediene,slip op. at 50 (noting that habeas is an “adapt-able remedy,” requiring more protections in sit-uations of greater factual uncertainty); Mathews,424 U.S. at 334-35; Tribe, supra, § 10-14, at 718(noting that the Court’s “flexible approach” toprocedural due process allows courts to applyprotections on a “case to case” basis). In fact, theCourt has made plain that due process neverrequires any “fixed” set of procedures that cannotbe adapted to the circumstances of the case athand. Mathews, 424 U.S. at 334 (quoting Cafe-teria & Restaurant Workers Union, Local 473,AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961)).Furthermore, as the Court explained in Hamdi,the procedures for reviewing enemy combatantdetentions should be “both prudent and incre-mental,” with adjustments made only as the needfor additional protections became apparent in agiven case. Hamdi, 542 U.S. at 539 (emphasisadded).

By imposing a “most reliable available evi-dence” requirement on the government at the

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very outset of a Hamdi hearing, the concurrencehas adopted an approach that neglects thesefoundational principles of procedural due pro-cess. Indeed, by categorically applying its addi-tional requirement even though al-Marri hasnever cast the slightest bit of doubt on the accu-racy of his enemy combatant status, the concur-rence fails to recognize that due process is firstand foremost about accuracy. And by forcing thegovernment to produce the “most reliable avail-able evidence” at the outset of all cases involvingnon-battlefield detainees, the concurrence dimin-ishes the ability of district courts to prudentlyand incrementally apply procedures based on theparticular circumstances and need for accuracyin the case at hand.

This approach threatens large consequences.As the concurrence recognizes, the breadth of al-Marri’s procedural demands are staggering. Anteat 83 & n.8. Not only does al-Marri request theopportunity to depose various government offi-cials, including “high-level” officers in the Exec-utive Branch, but he also seeks discovery of thefollowing evidence:

all statements made by al-Marri; all doc-uments relied upon by Rapp or describingthe sources of information referenced inthe Rapp Declaration; all documentsupon which the government intended torely; all documents upon which the CIA,Department of Justice, Department ofDefense, and the President relied indetermining whether al-Marri was anenemy combatant; all documents describ-

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ing the standard for the designation; [ ]any exculpatory evidence; . . . [and] alldocuments pertaining to interrogationsand interviews conducted by UnitedStates officials or others acting on theirbehalf.

Id.The “most reliable available evidence” require-

ment would provide al-Marri with access to thisevidence unless the government demonstratedthat its production was “impractical, outweighedby national security interests, or otherwiseunduly burdensome.” Id. at 94. In other words,under this approach, the default scenario wouldgrant al-Marri extensive discovery rights regard-less of whether he could raise even the slightestdoubt as to the basis of his detention.

It is difficult to think of a more dangerous wayto handle the highly sensitive information that isinvariably used to apprehend terrorist sleeperagents such as al-Marri. The fuzzy “most reliableavailable evidence” standard provides districtcourts with precious little guidance. Indeed, dis-trict courts are given little direction as to whatconstitutes the “most reliable available evidence”or as to the procedures that should be used tomake such a determination. Instead, districtcourts are merely told to resolve these thresholdevidentiary questions to their “satisfaction.” Id.at 94. This lack of clarity provides detainees withnothing less than an invitation to engage in“graymail” and other harassing tactics. See supraat 151.

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Judge Gregory recognizes that the concur-rence’s approach “will leave the district courtwith more questions than answers.” Ante at 100.He attempts, however, to resolve this uncertaintyby suggesting procedures of his own. In particu-lar, he suggests that the district court employ atthe outset of proceedings an “in-camera, ex-partehearing,” modeled after circuit precedent andCIPA, to determine which evidence should beturned over to al-Marri. Id. at 109-112. While Irespect my good colleague’s attempt to provideguidance for the district court on remand, I findthe procedures he proposes to be equally as prob-lematic as those suggested by the concurrence.To begin, relying on CIPA at the outset riskstransporting wholesale a statute specificallypassed to address criminal prosecutions into thecompletely different context of military deten-tion. See, e.g., 18 U.S.C. app. III § 8 (stating thatthe protections of CIPA are designed to “preventunnecessary disclosure of classified informationinvolved in any criminal proceeding” (emphasisadded)). As discussed earlier in Section II,Congress passed the AUMF fully aware of theexistence of CIPA, but it nevertheless authorizedthe President to detain enemy combatantsbecause of the inherent limitations of the crimi-nal justice system in dealing with matters of war.Moreover, under this “in-camera hearing”approach, al-Marri is once again provided withall sorts of procedures before having to cast theslightest doubt on the accuracy of his detention.There is simply no reason to risk, at the very out-set of every enemy combatant habeas proceedingand without any benefit in ensuring accurate

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determinations, the extraordinary costs that mayresult from the compelled disclosure of sensitiveinformation.

Of course, the sorts of procedures requested byal-Marri and contemplated by the concurrence’s“most reliable available evidence” requirementmay eventually come into play in some Hamdiproceedings. So too may CIPA protections. Butthese procedures should only be used if they arenecessary to ensure the accuracy of a detention.Applying additional procedures at the outset is,to understate the matter, ill-advised.

Hamdi recognized that the imposition of addi-tional safeguards in the enemy combatant settinghas the “uncommon potential to burden the Exec-utive at a time of ongoing military conflict.”Hamdi, 542 U.S. at 533; Ernest A. Young, TheConstitution Outside the Constitution, 117 YaleL.J. 408, 440 (2007). Granting al-Marri the ben-efit of additional protections, even though he hasnever used the procedures available to him, andeven though no evidence has emerged to suggestthat these additional protections are needed,imposes procedural burdens without any indica-tion that these burdens will produce a corre-sponding reduction in the likelihood of erroneousdeprivation. Due process simply does not requiresuch a result.

D.

Process is of inestimable value to law. It isvital in ensuring fair treatment to individuals, inpreventing the arbitrary exercise of power by thestate, and in holding the vast arsenal of execu-

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tive authority in check. And yet, as with so muchelse, there is a balance. Taken to sufficientlengths, process can accomplish the dismember-ment of meaningful democratic prerogatives andthe frustration of vital substantive ends. Takentoo far, process can essentially paralyze publicofficials in their attempts to promote the publicwelfare and, in this area, to provide even themost basic assurances of public safety.

The Supreme Court in Hamdi sought to strikethe balance between the beneficial use of process,on the one hand, and its detrimental overuse onthe other. As noted, Hamdi placed the initialburden in enemy combatant proceedings on thegovernment, required the government to givenotice of the factual basis for detention, and pro-vided the detainee with an opportunity to con-trovert the government’s evidence before aneutral decisionmaker. At the same time, how-ever, Hamdi was keenly conscious of the need notto deprive the executive and legislative branchesof the tools to deal with the new danger in ourmidst. Its seminal requirement is that thedetainee place the government’s evidence in somedoubt before the refinements of the criminal jus-tice process come into play. By relieving thedetainee of that threshold burden, we take atleast the first initial steps toward making Hamdihearings ever more replicative of the criminaljustice process—a process whose full and familiarregalia our profession may soon enough adopt.

This would be a mistake. The transgressionsthat al-Marri is accused of committing are notordinary crimes, although both the plurality andthe concurrence appear to treat them in varying

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degrees as such. Instead, the destructive acts of9/11 are more akin to warfare than to crime.That was the view that Congress expressed inpassing the AUMF. That was the view theSupreme Court expressed in its Hamdi decision.Whether by declining to apply the AUMF or bycasting aside the Hamdi framework, we movetoward the criminal justice model, the concur-rence accomplishing procedurally much of whatthe plurality attempts to accomplish substan-tively—a limitation on the elected branches’ abil-ity to prosecute the ongoing struggle againstglobal terror in accordance with the laws of war.I am reluctant to supplant the wisdom of otherson so grave a matter with my own, and I wouldhold that under the AUMF and in accordancewith Hamdi, al-Marri was accorded the processhe was due—the process which he never oncesought to utilize.

V. THE DETENTION OF AL-MARRI ACCORDSWITH AMERICA’S LEGAL TRADITION.

I wish finally to take a step back. In the after-math of September 11, judges have experiencedtheir own distinctive tensions. As guardians ofthe nation’s constitutional tradition, courts havestruggled to avoid placing a judicial imprimaturon anything inimical to the nation’s pricelessheritage of liberty and timeless respect forhuman rights. At the same time, we dread seeingagain the faces of the stricken and the fallen, andbeing left to wonder if some grave constitutionalmiscalculation of our own played even somesmall part in sealing a fellow countryman’s sadfate. These conflicting concerns—of sacrificing

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values or jeopardizing lives—are not absent inthe debate over the detention in al-Marri’s case.

Writing in the heyday of Jacksonian democ-racy, Alexis de Tocqueville sketched the elementsof American life that he thought set us apart: ourdevotion to the equality of man, our individual-ism, our commitment to enterprise, our practiceof religion, our profound patriotism, our com-mitment to a free press, and our devotion to therule of law. See Alexis de Tocqueville, Democracyin America (J.P. Mayer ed., George Lawrencetrans., Perennial Classics 2000). On this lastpoint, it is said, the last years of struggle havedone their greatest damage—with “executive unilateralism” lessening our commitment to dueprocess, “mock[ing] the very notion of constitu-tionalism and [making] light of any aspiration tolive by the rule of law.” Neal K. Katyal & Lau-rence H. Tribe, Waging War, Deciding Guilt: Try-ing the Military Tribunals, 111 Yale L.J. 1259,1259-60 (2002). Likewise, it is alleged, a rejectionof al-Marri’s petition in this case “would so alterthe constitutional foundations of our Republic,”that it “would have disastrous consequences forthe Constitution—and the country.” Ante at 62-63. I do not think these indictments fair, and Ibelieve it essential to explain why al-Marri’sdetention would leave the beacon of our consti-tutionalism bright and undimmed.

Any sound perspective on al-Marri’s detentionmust start with the magnitude of what brought iton. It bears lasting remembrance that what hap-pened on September 11 was an attack upon thesymbols of American freedom and democracy. Itwas a three-thousand person slaughter whose

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victims, going about their daily lives in an effortto do something meaningful, were innocent ofany wrong against those who attacked them. TheAUMF expressed this nation’s sorrow and out-rage at what happened. To credit its intendedscope respects Congress’s intention and thosewho died that day.

The notion that the military detention of sus-pected al Qaeda terrorists such as al-Marri some-how threatens to drag us even incrementallytowards the degraded level of our adversaries issimply unfathomable. Al-Marri’s detention is oneof only two domestic detentions of enemy com-batants conducted in the seven years since the9/11 attacks. This country has no equivalent ofjihad, no appetite for suicide bombs in publicsquares and markets, no thought of destroyingplaces of worship, no intent to cause harm that isgreater than necessary to defeat a determinedenemy. Military detention, circumscribed care-fully by the law of war’s cardinal principle of dis-crimination, is no disproportionate response tothose who aim to murder scores of thousands ofcivilians; there is no moral equivalence, only con-trast, and nothing in our constitutional traditionmakes the detention of terrorists with strong alQaeda ties unlawful simply because they prefermass killings here rather than on some foreignbattlefield. See Quirin, 317 U.S. at 38.

The immense controversy over al-Marri’sdetention obscures the historical perspective. Ido not mean to whitewash wrongs we have com-mitted in the last seven years—Abu Ghraibstained and sullied all we stand for; the govern-ment’s roundup and detention of Muslim immi-

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grants in the immediate aftermath of 9/11 trans-gressed our commitment to due process and indi-vidualized consideration; and Guantanamo Bayhas proven controversial, to be sure. We havestumbled on an unknown landscape, and some-times worse.

But consider, for example, the Red Scare androundup of social dissidents after World War I, orthe internment of Japanese-Americans duringWorld War II, or the surge of McCarthyism dur-ing the Cold War, or the bludgeoning of dissentduring the last stages of Vietnam. What makesthose moments in our history so very sad wasthat so much of the country approved of them. Afever took hold, and minorities in our countryoften bore the brunt of it. But al-Marri’s deten-tion—and the capture of al Qaeda members inour midst—presages no anti-Muslim rage, noattacks on Muslims’ basic rights of free religiousexercise and speech, no intent to deny our fellowcitizens of Muslim faith inclusion in the Ameri-can embrace. As the terrorist threat has per-sisted, there has been no demand for dragnetmeasures that would sweep in innocent and cul-pable alike, and there has been no demagogic fig-ure attempting to demonize our friends ofMuslim faith at home because they may happento share a loose national or religious identitywith enemies abroad.

Our domestic response to 9/11 has been, tojudge by the magnitude of the event and thelessons of history, largely measured. But thatalone does not carry the argument. Indeed, thereason for our measured response has not chieflybeen executive forbearance, but rather a faith-

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fulness to the path laid down by our Founders,with all three branches of our tripartite form ofgovernment playing their constitutionallyassigned role in charting our course. See DavidA. Martin, Judicial Review and the MilitaryCommissions Act: On Striking the Right Balance,101 Am. J. Int’l L. 344, 347-48 (2007) (noting the“productive” “interbranch colloquy” that tookplace after 9/11).

The Constitution is not merely an assignationof rights; it is also an allocation of authority. Andit is the structural features of our Constitutionthat allowed a nation bemused in August to yetrecover its residue of fiber in September. ArticleII embodies the great and immediate assertion ofnational will. It is the constitutional function ofthe executive to act energetically in time ofnational peril; no other branch of government isremotely capable of doing so. But executivepower can promote liberty through the provisionof security, or it can threaten liberty through thedisregard of rights. So the balance must bestruck. In this regard, Separation of Powers doesnot mean Hostility of Powers. It is the obligationof each branch to check the excesses of another,but each branch is equally obliged not to forsakeits own limitations in thwarting another’s legit-imate role.

Rejection of al-Marri’s petition does not signalsome pattern of surrender by a co-equal Congressand judiciary to a rampaging executive branch.The legislative branch has not forfeited its con-stitutional function. In the last seven years,Congress has passed at least seven resolutions orstatutes delineating the appropriate scope of our

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nation’s response to the terrorist threat: theAuthorization for Use of Military Force in 2001,Pub. L. No. 107-40, 115 Stat. 224; the USAPATRIOT ACT of 2001, Pub. L. No. 107-56, 115Stat. 272, which was revised and reauthorized in2006, Pub. L. No. 109-177, 120 Stat. 192; Pub. L.No. 109-178, 120 Stat. 278; the Authorization forUse of Military Force Against Iraq Resolution of2002, Pub. L. No. 107-243, 116 Stat. 1498; theHomeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135; the Detainee Treatment Actof 2005, Pub. L. No. 109-148, §§ 1001-06, 119Stat. 2680, 2739-44; the Military CommissionsAct of 2006, Pub. L. No. 109-366, 120 Stat. 2600;and the Protect America Act of 2007, Pub. L. No.110-55, 121 Stat. 552, which amended the For-eign Intelligence Surveillance Act of 1978. Thosewho think these acts ceded too much power to theexecutive may be right or they may be wrong.But they miss a crucial point: these congressionalactions have been fought on “the boisterous oceanof political passions,” see Letter from ThomasJefferson to Monsieur DuPont de Nemours,March 2, 1809, quoted in The Life and SelectedWritings of Thomas Jefferson 545 (Adrienne Koch& William Peden eds., 1993), and while theresults of any fight are never pleasing to every-one, it is precisely the way our system is sup-posed to work.

Nor would the rejection of al-Marri’s petitionsignal an atrophied judicial role. The courts havebeen more actively involved in our current strug-gle than in any other war in our history. Theamount of litigation surrounding the struggleagainst terrorism would have been unthinkable

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in any prior conflict. By my count, well over twodozen cases on the subject have been heard infederal court, including those whose names arenow familiar: Hamdi; Rasul; Hamdan; Padilla;Moussaoui; Boumediene. The critics who seethese decisions as too supine may be right orthey may be wrong. But as al-Marri’s appealshows, they have had their day and more incourt, and that too is how our system is supposedto work.

Al-Marri’s case—like so many others in thisstruggle—has been for the judiciary one of deepsilences. We may never know whether we havestruck the proper balance between liberty andsecurity, because we do not know every actionthe executive is taking and we do not know everythreat global terror networks have in store. Soour belief in ourselves and our institutions has topersevere in this unprecedented world of imper-fect understanding where the definitions of vic-tory and progress and proportionate response areforever open to debate.

I feel firmly, however, based on the facts pre-sented, that al-Marri’s petition should be dis-missed. The executive’s decision to detainhim—or any similarly situated member of alQaeda, lawfully in this country or not—is a pro-portionate response targeted precisely at thoseterrorists who slaughtered thousands of civilianson our soil and threaten to do the same to tens ofthousands more. His detention is consistent withthe law of war, and our constitutional require-ments of due process as well. It is a product ofexecutive action that has been legislatively sanc-tioned and it reflects the core understanding of

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our constitutional system that at the end of theday, when momentous questions of life and deathare at stake, this nation places its deepest betsupon democracy, and the people’s safety mustreside and rest with those who have the people’ssanction.

I do not mean to minimize the step of detainingmilitarily someone of lawful status, seized withinthis country, and I have tried throughout to sug-gest the limits that the laws of war, the need forcongressional sanction, and the requirement ofsome meaningful form of access to the courtsimpose upon this executive practice. See Hamdi,542 U.S. at 524-39. By reviewing the lawfulnessof the detention, we confirm that there is accessto the courts and that there are limits on actionsimpinging liberty that can be taken in the nameof national security. By rejecting this petition, wewould have the chance to recognize that thedemocratic branches have taken reasonable andconstitutional steps to address unprecedentedthreats of unforeseeable magnitude against ourcountry.

It is possible to protect American values andAmerican lives. Indeed, this was the promise ofour Founding, when a government was “insti-tuted among Men, deriving [its] just powers fromthe consent of the governed” in order to securethe “unalienable Rights” of both “Liberty” and“Life.” See Declaration of Independence para. 2(U.S. 1776). I disagree with the result reachedhere, but I do so in the belief that my colleagueshave helped in some small way to demonstratethe good and earnest values that animate thiscountry—values that require America prevail.

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NIEMEYER, Circuit Judge, concurring in the judg-ment in part and dissenting in part, as indicatedherein:

After we received briefs and heard argument inthis case, the Supreme Court handed down itsdecision in Boumediene v. Bush, 553 U.S. ___, No.06-1195 (June 12, 2008), holding that foreignnationals detained at the U.S. Naval Station atGuantanamo Bay as enemy combatants underthe Authorization for Use of Military Force(“AUMF”), Pub. L. No. 107-40, 115 Stat. 224(2001), have the privilege of habeas corpus. Slipop. at 41. The Court also held that when judicialpower to issue habeas corpus is properly invokedby a detainee having the habeas privilege, “thejudicial officer must have adequate authority tomake a determination in light of the relevant lawand facts and to formulate and issue appropriateorders for relief, including, if necessary, an orderdirecting the prisoner’s release.” Slip op. at 58.The Boumediene Court rejected the government’sargument that the Detainee Treatment Act of2005, Pub. L. No. 109-148, 119 Stat. 2739, pro-vided an adequate and effective substitute forhabeas corpus and held that the Act’s limitationof habeas corpus violated the Suspension Clauseof the Constitution.

Focusing on the essential process to which suchdetainees are entitled, whether through habeascorpus or some other procedure that Congressmight provide, the Court stated that a detaineemust have a “meaningful opportunity to demon-strate that he is being held pursuant to the erro-neous application or interpretation of relevant

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law” before a court that has “the power to orderthe conditional release of an individual unlaw-fully detained”—both of which are provided bythe habeas corpus process. Slip op. at 50 (inter-nal quotation marks omitted). Thus, the Courtheld, the process for designated enemy combat-ants detained at Guantanamo Bay must providethe detainee with the right to present exculpa-tory evidence and to supplement the record, andthe process must be administered by a court withauthority “to assess the sufficiency of the Gov-ernment’s evidence against the detainee,” “toadmit and consider relevant exculpatory evi-dence,” to make determinations “in light of therelevant law and facts,” “to correct errors thatoccurred during the [executive] proceedings,” andto issue appropriate relief, including release ofthe detainee. Slip op. at 57-58. In short, enemycombatants detained at Guantanamo Bay underthe AUMF must be provided the habeas corpusprocess or a process closely equivalent to it. Seeslip op. at 63-64.

Because the Boumediene Court treated Guan-tanamo Bay as part of the United States for thelimited purpose of its holding, its holding, a for-tiori, extends also to persons detained in theUnited States as enemy combatants under theAUMF.

In my judgment, the Supreme Court’s holdingin Boumediene disposes of the procedural issuesbefore us. Because the district court in this caseafforded al-Marri the habeas corpus process anddismissed his petition under procedures fullyconsistent with traditional habeas corpus pro-cess, I would conclude that al-Marri has received

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all the process he was due. And with respect tothe district court’s legal conclusion that al-Marriwas properly detained, I agree generally with theviews expressed by Chief Judge Williams, JudgeWilkinson, and Judge Traxler, and I specificallyjoin in Part II of Judge Traxler’s opinion. Accord-ingly, I would affirm.

I

Al-Marri was initially arrested by civilianauthorities pursuant to charges of credit cardfraud. While in civilian custody, however, thePresident of the United States determined, onJune 23, 2003, that al-Marri was an enemy com-batant because he was “closely associated with alQaeda”; he “engaged in conduct that constitutedhostile and war-like acts, including conduct inpreparation for acts of international terrorismthat had the aim to cause injury to or adverseeffects on the United States”; he possessed “intel-ligence about personnel and activities of alQaeda”; he represented a “continuing, present,and grave danger to the national security of theUnited States”; and therefore it was necessary todetain him “to prevent him from aiding al Qaedain its efforts to attack the United States.” Actingunder the authority of the AUMF, the Presidentordered the Attorney General to deliver al-Marrito the Secretary of Defense to be detained “as anenemy combatant.” Al-Marri was then detainedat the Consolidated Naval Brig in Charleston,South Carolina.

On July 8, 2004, al-Marri filed a petition for awrit of habeas corpus in the district court under

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28 O.K. § 2241, alleging (1) unlawful detention,(2) the right to counsel, (3) the right to becharged, (4) a denial of due process, and (5)unlawful interrogation. His second and fifthclaims are no longer a part of his petition in thisproceeding but are now the subject of a separatecivil action pending before the district court. Inresponse to al-Marri’s petition, the district courtentered an order directing service of al-Marri’spetition upon the Commander of the Consoli-dated Naval Brig and setting a date for hisanswer.

In his answer, the Commander asserted thatal-Marri’s detention under the AUMF wasproper, based on the President’s determinationthat al-Marri was an enemy combatant. Theanswer included a copy of the President’s deter-mination and order, as well as an affidavit fromJeffrey N. Rapp, the Director of the Joint Intel-ligence Task Force for Combating Terrorism (the“Rapp Declaration”), which offered the specificfactual basis for al-Marri’s classification as anenemy combatant. Portions of the Rapp Decla-ration were redacted to protect classified infor-mation.

Al-Marri filed a reply to the government’sanswer, generally denying the facts and chal-lenging his detention as a matter of law. He alsorequested a hearing to determine facts.

The district court first addressed the legalissues, and, assuming the facts asserted by thegovernment to be true, it concluded as a legalmatter that al-Marri’s detention was “proper pur-suant to the AUMF.” Al-Marri v. Hanft, 378 F.

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Supp. 2d 673, 680 (DISC. 2005). But the courtleft open al-Marri’s right to challenge the facts.

At a status conference before a magistratejudge, the court outlined the procedure thatwould be followed to resolve al-Marri’s dispute ofthe facts. By an order dated December 19, 2005,the magistrate judge adopted an incrementalfact-finding approach based on the guidance pro-vided by the Supreme Court in Hamdi v. Rusted,542 U.S. 507 (2004). It required that al-Marri begiven the government’s factual basis for his clas-sification as an enemy combatant and a fairopportunity to rebut those facts with “more per-suasive evidence.” For this purpose, the courtindicated that it would accept affidavits fromboth the government and al-Marri. The courtstated that if al-Marri were to make a showing“more persuasive” than the government’s show-ing, it would then conduct a full-blown hearing totake evidence.

Although al-Marri had received a redacted copyof the Rapp Declaration, he objected that he hadnot received notice of the factual basis for hisdetention because his attorneys were prohibitedfrom discussing with him the classified portionsof the Rapp Declaration. The district courtexpressed displeasure with the government’s pro-vision of a redacted copy and gave the govern-ment the option of either relying only on theunclassified portions of the Rapp Declaration orof allowing al-Marri access to the classified por-tions. In response, the government declassifiedmost of the Rapp Declaration and accepted thesanction that it could not rely on the remainingclassified portions to satisfy its burden.

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In its summary, the declassified Rapp Decla-ration stated:

[Al-Marri] is closely associated with alQaeda, an international terrorist orga-nization with which the United States isat war. As detailed below, Al-Marri is anal Qaeda “sleeper” agent sent to theUnited States for the purpose of engag-ing in and facilitating terrorist activitiessubsequent to September 11, 2001. Al-Marri currently possesses information ofhigh intelligence value, including infor-mation about personnel and activities ofal Qaeda. Prior to arriving in the UnitedStates on September 10, 2001, Al-Marrimet personally with Usama Bin Laden(Bin Laden) and volunteered for a martyrmission or to do anything else that alQaeda requested. Al-Marri was assistedin his al Qaeda assignment to the UnitedStates by at least two high-level al Qaedamembers: September 11, 2001 master-mind Khalid Shaykh Muhammed (KSM);and al Qaeda financier and September11, 2001 moneyman Mustafa Ahmed Al-Hawsawi (Al-Hawsawi). Al Qaeda sentAl-Marri to the United States to facili-tate other al Qaeda operatives in carry-ing out post-September 11, 2001 terrorattacks. Al Qaeda also asked Al-Marri toexplore computer hacking methods to dis-rupt bank records and the U.S. financialsystem. In addition, Al-Marri wastrained by al Qaeda in the use of poisons

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and had detailed information concerningpoisonous chemicals stored on his laptopcomputer. Information about Al-Marri’srelationship with and activities on behalfof al-Qaeda has been obtained from andcorroborated by multiple intelligencesources.

The Declaration then proceeded, through 15pages, to offer the highly specific details. Forexample, it stated that: (1) “Al-Marri trained atBin Laden’s Afghanistan terrorist training campsfor 15-19 months between approximately 1996and 1998”; (2) although al-Marri allegedlyentered the United States to pursue a graduatedegree in computer science at Bradley Univer-sity, “he had rarely attended classes and was infailing status”; (3) al-Marri traveled to theUnited Arab Emirates at al Qaeda’s request inAugust 2001, where he met with Mustafa Ahmedal-Hawsawi, al Qaeda’s treasurer, at the Dubaiairport and was provided with approximately$10,000 to $13,000 for his travels and educationin the United States, along with an additionalapproximately $3,000 to purchase a laptop com-puter; (4) al-Marri’s computer contained evidencethat he was conducting research regarding theuse of chemicals as weapons of mass destruction(providing very detailed descriptions of the evi-dence found on the computer); (5) al-Marri’s com-puter also contained records of e-mail drafts sentfrom accounts registered to al-Marri to anaccount that has been linked to Khalid ShaykhMuhammed, a known al Qaeda terrorist andmastermind behind the September 11 attacks

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(providing the exact language of the messages);(6) al-Marri’s computer contained files of lecturesby bin Laden as well as lists of websites titled“Jihad arena,” “Tali-ban,” “Arab’s new club—Jihad club,” “Tunes by bullets,” and “martyrs,”along with photographs of the attacks on theWorld Trade Center, various photographs of Arabprisoners of war held by authorities in Kabul, ananimated cartoon of an airplane flying at theWorld Trade Center, and a map of Afghanistan;(7) calling cards attributed to al-Marri were uti-lized after the terrorist attacks of September 11,2001, to contact the United Arab Emirates tele-phone number of al-Hawsawi (providing very spe-cific dates and details regarding where and whenthe calls were made); (8) al-Marri’s computercase contained lists of credit card numbers andthe details of the relevant cardholders, and hiscomputer files contained over 1,000 other appar-ent credit card numbers, along with lists of inter-net websites related to computer hacking, fakedriver’s licenses and other fake identificationcards, buying and selling credit card numbers,and processing credit card transactions; and (9)fraudulent purchases were made on several ofthe credit card numbers in al-Marri’s possession,at a fraudulent online business set up by an indi-vidual purporting to be named “Ab-dulkareem A.Almuslam,” who had a signature in handwritingsimilar to al-Marri’s, was identified by an eyedoctor as actually being al-Marri, and had fin-gerprints that matched al-Marri’s.

When al-Marri received this declassified RappDeclaration (in which only small portionsremained redacted), he again objected because he

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could not see the few passages that had beenblacked out. With respect to what was disclosed,he “respectfully decline[d]” to come forward withevidence. Because al-Marri elected not to make afactual showing, the magistrate judge prepared areport and recommendation to the district courtbased on al-Marri’s refusal to take issue with thefacts.

In the magistrate judge’s report and recom-mendation, he noted that al-Marri had receivedmost of the Rapp Declaration, with only a fewpassages blacked out because they were classi-fied, and stated that al-Marri “ha[d] been givennotice and opportunity, but ha[d] responded withmerely a general denial and an election not tofurther participate in these proceedings.” Thejudge noted that “[a]lthough [al-Marri] appar-ently has evidence he believes relevant, herefuses to present it before this court.” The mag-istrate judge concluded:

Accordingly, while recognizing the impor-tance of respecting the acts of the Exec-utive Branch in times of nationalemergency, and after providing the peti-tioner a threshold opportunity reason-able under the circumstances to contestthe Executive Branch’s actions and fac-tual assertions in an incremental anddeliberate manner, it appears to thecourt that the Executive Declaration ismore persuasive than Petitioner’s gen-eral denial on the issue of whether thepetitioner meets the enemy combatantcriteria, and there is no basis for con-

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cluding that an erroneous deprivationhas occurred.

Al-Marri filed objections to the magistratejudge’s report and recommendation, and the dis-trict court considered al-Marri’s petition for writof habeas corpus de novo. In its opinion, the courtstated:

Despite being given numerous oppor-tunities to come forward with evidencesupporting this general denial, Petitionerhas refused to do so.

* * *Petitioner’s refusal to participate at thisstage renders the Government’s asser-tions uncontested. This leaves the Courtwith “nothing specific . . . to dispute eventhe simplest of assertions [by the Gov-ernment] which [Petitioner] could easily”refute were they inaccurate.

Al-Marri ex rel. Berman v. Wright, 443 F. Supp.2d 774, 784-85 (D.S.C. 2006) (quoting magistratejudge’s report) (alterations and omission in orig-inal). The court concluded:

Given Petitioner’s refusal to partici-pate in the initial evidentiary processand his failure to offer any evidence onhis behalf, it is beyond question that hehas failed to present “more persuasiveevidence” to rebut Respondent’s classifi-cation and detention of him as an enemycombatant. Further, given the imbalance

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between the evidence presented by theparties, the Government clearly meetsany burden of persuasion which couldreasonably be imposed on it at this ini-tial stage. Proceeding incrementally, asHamdi directs, the Court need go no fur-ther today. Accordingly, under Hamdi ’soutline of the procedures applicable inenemy combatant proceedings, the Courtfinds that Petitioner has received noticeof the factual basis supporting his deten-tion and has been afforded a meaningfulopportunity to rebut that evidence. As areview of that evidence does not indicatethat an “erroneous deprivation” hasoccurred, Hamdi, 542 U.S. at 534, thispetition should be dismissed.

Id. at 785. From the district court’s order of dis-missal, al-Marri filed this appeal.

II

I conclude that the district court in this caseprovided al-Marri all the procedure that was due.While the court was disposing of a habeas corpuspetition under 28 U.S.C. § 2241, it also kept itsfocus on the procedure described in Hamdi, theonly guidance then available to the district courtfor application of habeas corpus to detainedenemy combatants. But it can be readily demon-strated that the procedure the district court pro-vided al-Marri satisfied not only Hamdi but also§ 2241, which the Court in Boumediene found tobe sufficient.

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A

Hamdi remains relevant to our considerationeven in light of Boumediene. While Boumedieneconsidered whether the Detainee Treatment Actwas an adequate substitute for § 2241 habeascorpus, Hamdi considered the appropriate pro-cess due in a § 2241 habeas proceeding. SeeBoumediene, slip op. at 55 (“[Hamdi] does notcontrol the matter at hand. None of the parties inHamdi argued there had been a suspension of thewrit. Nor could they. The § 2241 habeas corpusprocess remained in place”). As in Hamdi, the§ 2241 habeas corpus process “remain[s] in place”here.

In Hamdi, a plurality of the Court articulatedthat process which is constitutionally owed to anAmerican citizen seeking to challenge his clas-sification and detention as an enemy combatant.There, Yaser Esam Hamdi, a United States citi-zen, was detained by the government on allega-tions that he had taken up arms with the Talibanduring the conflict in Afghanistan. Hamdi hadbeen seized in Afghanistan by members of theNorthern Alliance, a coalition of military groupsopposed to the Taliban, and was eventuallyturned over to the United States military anddetained as an enemy combatant. Hamdi, 542U.S. at 510. Subsequently, Hamdi’s father filed apetition for a writ of habeas corpus under 28U.S.C. § 2241. Id. at 511.

Although Hamdi’s habeas petition contained nodetails regarding the factual circumstances of hiscapture or detention, other documents that werepart of the record asserted that Hamdi “went to

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Afghanistan to do ‘relief work,’ and that he hadbeen in that country less than two months beforeSeptember 11, 2001, and could not have receivedmilitary training.” Id. Furthermore, Hamdi’sfather explained his view of the case—thatHamdi, who was 20 years old at the time, “wastraveling on his own for the first time,” and“‘[b]ecause of his lack of experience, he wastrapped in Afghanistan once the military cam-paign began.’ ” Id. at 511-12 (alteration in origi-nal). The sole evidence offered by the governmentagainst Hamdi was contained in an affidavitfrom Michael Mobbs, the Special Advisor to theUnder Secretary of Defense for Policy (the“Mobbs Declaration”). Id. at 512.

In its review, a plurality of the Supreme Courtfirst looked at whether the detention of Hamdi, aU.S. citizen taken into custody in Afghanistan asan enemy combatant, was authorized. Confiningits holding to the specific factual scenario beforeit and expressing no view as to the bounds of theenemy-combatant category, id. at 516, the plu-rality held that Congress authorized the deten-tion of enemy combatants, at least in thecircumstances alleged in Hamdi’s case, id. at516-17.

The plurality then turned to the question ofwhat process was constitutionally due a citizenwho, in a habeas proceeding, disputed his statusas an enemy combatant, ultimately declining toadopt either the narrow view of process advo-cated by the government or the broad view advo-cated by Hamdi. Id. at 524-34. The pluralityexplained that “[b]oth of [the] positions highlightlegitimate concerns. And both emphasize the ten-

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sion that often exists between the autonomy thatthe Government asserts is necessary in order topursue effectively a particular goal and the pro-cess that a citizen contends he is due before he isdeprived of a constitutional right”; “[i]t is beyondquestion that substantial interests lie on bothsides of the scale in this case.” Id. at 528, 529.Recognizing that “the risk of erroneous depriva-tion of a citizen’s liberty in the absence of suffi-cient process . . . [was] very real,” id. at 530, theplurality held that a citizen-detainee seeking tochallenge his classification as an enemy com-batant must (1) “receive notice of the factualbasis for his classification”; (2) be given “a fairopportunity to rebut the Government’s factualassertions”; and (3) have this process conducted“before a neutral decisionmaker,” id. At 533. Butthe plurality was quick to point out the conse-quences of the practical requirements attendingthe government’s interests:

At the same time, the exigencies of thecircumstances may demand that, asidefrom these core elements, enemy-com-batant proceedings may be tailored toalleviate their uncommon potential toburden the Executive at a time of ongo-ing military conflict. Hearsay, for exam-ple, may need to be accepted as the mostreliable available evidence from the Gov-ernment in such a proceeding.

Id. at 533-34. In addition to allowing for hearsayin specified circumstances, the plurality recog-nized that a presumption in favor of the govern-ment’s evidence could be acceptable:

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Likewise, the Constitution would not beoffended by a presumption in favor of theGovernment’s evidence, so long as thatpresumption remained a rebuttable oneand fair opportunity for rebuttal wereprovided. Thus, once the Governmentputs forth credible evidence that thehabeas petitioner meets the enemy-com-batant criteria, the onus could shift tothe petitioner to rebut that evidence withmore persuasive evidence that he fallsoutside the criteria.

Id. at 534. The plurality explained that such aburden-shifting scheme “would sufficientlyaddress the ‘risk of an erroneous deprivation’ ofa detainee’s liberty interest,” id. (quoting Math-ews v. Eldridge, 424 U.S. 319, 335 (1976)), andwould “meet the goal of ensuring that the erranttourist, embedded journalist, or local aid workerhas a chance to prove military error while givingdue regard to the Executive once it has put forthmeaningful support for its conclusion that thedetainee is in fact an enemy combatant,” id.

Finally and particularly apropos here, theHamdi plurality stated that “a habeas court in acase such as this may accept [hearsay] affidavitevidence like that contained in the Mobbs Dec-laration, so long as it also permits the allegedcombatant to present his own factual case torebut the Government’s return.” Hamdi, 542 U.S.at 538. Ultimately, the plurality envisioned “afactfinding process that is both prudent andincremental.” Id. at 539 (emphasis added).

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Here, the government detained al-Marri, basedon facts much better developed and more detailedthan those presented in Hamdi, and al-Marri wasgiven a habeas corpus process consistent with theprocess described in Hamdi. He was given noticeof the factual basis for his designation as anenemy combatant and “a meaningful opportunityto contest the factual basis for that detentionbefore a neutral decisionmaker.”*Hamdi, 542U.S. at 509 (emphasis added).

First, as for notice, al-Marri was provided theRapp Declaration, which contained a full state-ment of the factual basis for the government’sdetermination that he was an enemy combatant.The Rapp Declaration set forth clearly and com-prehensively the government’s theory of the case,providing specific details of the basis for the gov-ernment’s assertions.

Second, al-Marri was undoubtedly given “a fairopportunity to rebut the Government’s factual

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* Al-Marri objects to the district court’s denial of hismotion for disclosure by the government of an array ofsources and witnesses, and Judge Traxler’s opinion suggestsal-Marri may be entitled to such discovery even before plac-ing any of the government’s facts in dispute. But in afactfinding process that is to be “both prudent and incre-mental,” taking into account the Executive’s unique inter-ests in detaining enemy combatants during wartime,Hamdi, 542 U.S. at 539, it would be inappropriate for us toconsider these discovery requests without first requiring thepetitioner to at least constructively respond to the govern-ment’s detailed factual submission, particularly in a casesuch as this in which all relevant facts are within the peti-tioner’s personal knowledge. Absent some credible theory torebut the government’s factual case, a court has no basis tocontemplate further steps such as discovery or an eviden-tiary hearing.

assertions.” Hamdi, 542 U.S. at 533. In its state-ments to the district court, the governmentinvited and urged al-Marri “to actually respondin a substantive way to the factual allegations”made by the government, observing that “[t]his is[al-Marri’s] opportunity to be heard on . . . hisversion of [the] events. That’s the primary pur-pose for this process, as we read the SupremeCourt’s Hamdi decision.” (J.A. 132-33, 134). Inaddition, the district court directed al-Marri torespond to the government’s factual assertions.In its December 19, 2005 order, the courtinstructed al-Marri “to file any rebuttal evidence[to the government’s factual assertions] withinsixty days from the date hereof.” Yet, al-Marridid not respond in any substantive way. Eventhough he had been given the government’s fac-tual assertions—indeed, many months before thecourt ordered him to respond, during which timehe had unmonitored access to his attorneys—hestill refused to provide any explanation to thecourt or to state his own version of the facts.Rather, his response was simply to give a generaldenial and to decline further engagement in theprocess.

In Hamdi, the plurality stated that “once theGovernment puts forth credible evidence that thehabeas petitioner meets the enemy-combatantcriteria” (which could be satisfied by a hearsayaffidavit such as the Rapp Declaration, see 542U.S. at 533-34, 538), the burden shifts to thedetainee “to rebut that evidence with more per-suasive evidence that he falls outside the crite-ria.” Id. at 534 (emphasis added). Al-Marri didnot even attempt to carry this burden.

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The Hamdi plurality explained that this bur-den-shifting scheme did not impose a large bur-den on the detainee but rather was designed toallow him to show that he is an innocent “tourist,. . . journalist, or . . . aid worker.” 542 U.S. at 534.The approach of this scheme was “limited to[rebutting or challenging] the alleged combat-ant’s acts.” Id. at 535. Thus, this narrow focusrequired al-Marri only “to present his own fac-tual case to rebut the Government’s return.” Id.at 538 (emphasis added). Indeed, in this case,almost every important fact on which the gov-ernment relied was imputable to al-Marridirectly and could be responded to through hisown personal knowledge.

For example, the Rapp Declaration cited spe-cific dates and times when the governmentalleged al-Marri was in specific places takingspecific actions—all facts that would have beenknown to al-Marri personally. Al-Marri couldthus have contested or explained, among otherthings: (1) the source of his financial support, ifit was not al-Hawsawi, as alleged; (2) the asser-tions that he rarely attended his graduatecourses and was in failing status; (3) the allega-tions that his laptop computer containedresearch regarding the use of chemical weaponsand poisons, as well as files concerning jihad andmartyrdom, lectures of Osama bin Laden, andthousands of false credit card numbers and otherfraudulent financial documents; and (4) the factsthat he possessed and used telephone creditcards, telephone numbers, and e-mail accountsconnected to known al Qaeda operatives andleaders. Because the accuracy of these facts

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would have been known by al-Marri personally,he could have offered an explanation for or denialof each, if the government’s characterizationsand explanations were untrue. Yet, he chose to“respectfully decline” the district court’s “invi-tation” to respond to or contest them. His failureto rebut such facts amounted to a total failure tomeet his burden under the burden-shiftingscheme of Hamdi. As a result, there was nothingspecific before the district court, and thereremains nothing specific before our court, to dis-pute even the simplest of assertions against al-Marri, despite the fact that he was given “a fairopportunity to rebut the Government’s asser-tions.” Hamdi, 542 U.S. at 533.

Finally, the third prong of the process articu-lated in Hamdi was fulfilled. Al-Marri unques-tionably received the opportunity to challengethe government’s factual assertions “before aneutral decisionmaker.” Hamdi, 542 U.S. at 533.A duly appointed and experienced federal districtcourt judge entertained al-Marri’s argumentsregarding his habeas petition, and ultimatelydecided to reject them and deny his petition.There has been no allegation that the districtcourt was in any way biased. Indeed, the courtgave al-Marri ample opportunity to make hiscase.

In sum, al-Marri was given notice of the gov-ernment’s facts, allowing for a presumption in itsfavor under Hamdi; he was given a fair oppor-tunity to respond to the asserted facts; and hisproceeding in which he could contest the factswas before a neutral decisionmaker. This is all ofthe process that was due him under Hamdi.

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B

Although the district court in this case wasfunctioning under 28 U.S.C. § 2241 and wasattempting at the same time to accommodate theprocess described in Hamdi, the process it actu-ally afforded al-Marri readily comported withboth § 2241 and Hamdi, thus including the ele-ments described as essential in Boumediene.

The Boumediene Court allowed that some pro-cess short of that required by § 2241 processcould be sufficient. Slip op. at 64 (stating, “we donot hold that an adequate substitute must dupli-cate § 2241 in all respects”). It nonetheless foundessential in any process employed that (1) thepetitioner be given the opportunity to submitexculpatory evidence and to supplement therecord on review; and (2) the court have author-ity to assess the sufficiency of the government’sevidence, to receive the petitioner’s exculpatoryevidence, to supplement the record, to correcterrors in the executive process, and to grantrelief, including release of the detainee. Slip op.at 57-58, 63.

The process in this case readily fulfilled theseminimum requirements. Indeed, it satisfied all ofthose imposed by 28 U.S.C. §§ 2241- 2243.

Al-Marri was given a detailed 15-page state-ment of the facts—stated under oath—on whichthe government was relying. Even though most,if not all, of the facts were within al-Marri’s per-sonal knowledge, he elected not to dispute themor present other facts, giving instead only a gen-eral denial and a refusal to participate further inthe process. Likewise, he did not request that

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anything further be included in the record. Thus,his challenge amounted to only a legal challengeto the AUMF and the President’s right to detainhim under the AUMF. Nevertheless, he wasgiven the opportunity to raise factual disputes,and the court would have resolved them with afactual hearing, as it so advised al-Marri. Thedistrict court, operating under § 2241, had thefull authority to receive evidence from al-Marriand to supplement the record, and it urged al-Marri to respond to the facts.

The court also understood that it had authorityto rule that the detainment was illegal as a mat-ter of law. With that authority, it devoted anentire memorandum to the issue, denying al-Marri’s legal challenge. Had it sustained al-Marri’s arguments, the court, as a habeas court,surely had the authority under § 2241 to fashionappropriate relief, including release. Indeed, itexercised this power at an earlier stage when itsanctioned the government by excluding consid-eration of classified information. In short, thecourt’s process in this case was fully compliantwith the essential process described in Boume-diene.

In addition, the district court comported fullywith the process required by § 2241. Section 2243requires that al-Marri’s custodian be ordered tofile an answer (a “return”), “certifying the truecause of the detention.” That order was issued inthis case and the government filed an answer,providing the “true cause of the detention.”

Section 2243 also requires a hearing at whichthe detainee is present, “[u]nless the applicationfor the writ and the return present only issues of

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law.” This too was satisfied. Since al-Marriraised no issue of fact, the hearings before themagistrate judge involved only legal arguments.

Section 2243 requires that al-Marri be affordedthe opportunity, by affidavit or otherwise underoath, to deny facts or to assert other facts. Thisopportunity was given him, but al-Marri optednot to take advantage of it.

Finally, § 2243 requires the court to “dispose ofthe matter as law and justice require.” This thecourt did. In disposing of the matter as law andjustice required, the district court accepted thegovernment’s facts as true—it had no othersbefore it—and concluded, based on those facts,that as a matter of law al-Marri was legallydetained by the President under the AUMF.

Al-Marri received the process described inHamdi, Boumediene, and 28 U.S.C. §§ 2241-2243.That he elected not to contest facts to requiretheir further development was his choice, not adenial of process. And on his purely legal chal-lenge he received a full hearing with a reasoneddisposition.

III

With respect to the legal question decided bythe district court that al-Marri was legallydetained under the AUMF based on the facts thegovernment presented, I agree with the opinionsof Chief Judge Williams, Judge Wilkinson, andJudge Traxler, which conclude that, based on theRapp Declaration, the President had the power todetain al-Marri as an enemy combatant underthe AUMF and that the President lawfully exer-

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cised that power in detaining al-Marri. I specif-ically join Part II of Judge Traxler’s opinion, lay-ing out the reasons.

IV

Accordingly, I concur in that part of the judg-ment affirming the district court’s conclusionthat the President possessed the legal authorityunder the AUMF to detain al-Marri as an enemycombatant and that he did so in accordance withthe AUMF. I dissent, however, from the decisionto vacate the district court’s dismissal order andto remand this case to the district court to pro-vide al-Marri with more process to contest hisdetention. In my judgment, because al-Marri hasalready received a § 2241 habeas process, such aremand order leads only to duplicative process,unnecessarily protracting the constitutionallyfair and adequate process that the district courtalready provided al-Marri.

Accordingly, I would affirm the judgment ofthe district court.DUNCAN, Circuit Judge, concurring in part anddissenting in part:

I agree with the majority of my colleaguestoday that, if the Government’s allegations aboutal-Marri are true, Congress has empowered thePresident to detain him as an enemy combatant.However, with Hamdi as a guidepost, I amunable to conclude that the process afforded al-Marri thus far was insufficient. Indeed, the gov-ernment’s evidence, in the form of the RappDeclaration, was far more detailed than that

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proffered in Hamdi. Further, as noted by ChiefJudge Williams and Judge Niemeyer, the mag-istrate judge and the district court in fact accom-modated al-Marri’s only specific request—thatthe Rapp Declaration be substantially declassi-fied to provide him with better notice of the fac-tual basis for his detention. In the face of theRapp Declaration’s specific and comprehensiveallegations (which, as Chief Judge Williams andJudge Niemeyer point out, relate to mattersuniquely within al-Marri’s knowledge), it is al-Marri’s unilateral and absolute refusal to par-ticipate in the incremental process suggested byHamdi that warrants affirmance. For that rea-son, with due respect for the varying views pre-sented by my colleagues, I also concur in theseparate opinion authored by Chief JudgeWilliams.

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PUBLISHEDUNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

__________No. 06-7427

__________ALI SALEH KAHLAH AL-MARRI,

Petitioner-Appellant, —and—

MARK A. BERMAN, as next friend,Petitioner,

—versus—

COMMANDER S. L. WRIGHT, USN Commander,Consolidated Naval Brig.,

Respondent-Appellee. __________

SPECIALISTS IN THE LAW OF WAR; PROFESSORSOF EVIDENCE AND PROCEDURE; UNITED STATESCRIMINAL SCHOLARS AND HISTORIANS; FORMERSENIOR JUSTICE DEPARTMENT OFFICIALS; CEN-TER FOR NATIONAL SECURITY STUDIES; AMERI-CAN-ARAB ANTIDISCRIMINATION COMMITTEE;ASIAN-AMERICAN JUSTICE CENTER; NATIONALIMMIGRANT JUSTICE CENTER; HUMAN RIGHTSFIRST; HUMAN RIGHTS WATCH; PROFESSORS OF

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23040 • ACLU • APPENDIX part: 2 (revised 10/1/07) le 9/10/08 10:10

CONSTITUTIONAL LAW AND FEDERAL JURISDIC-TION; HATE FREE ZONE; MUSLIM ADVOCATES;WORLD ORGANIZATION FOR HUMAN RIGHTS USA,

Amici Supporting Appellant.__________

Appeal from the United States District Court forthe District of South Carolina, at Charleston.Henry F. Floyd, District Judge. (2:04-cv-002257-HFF)

__________Argued: February 1, 2007 Decided: June 11, 2007

__________Before MOTZ and GREGORY, Circuit Judges, andHenry E. HUDSON, United States District Judgefor the Eastern District of Virginia, sitting bydesignation.

__________Reversed and remanded by published opinion.Judge Motz wrote the opinion, in which JudgeGregory joined. Judge Hudson wrote a dissentingopinion.

__________ARGUED: Jonathan L. Hafetz, BRENNAN CENTERFOR JUSTICE, New York University School ofLaw, New York, New York, for Appellant. DavidB. Salmons, Assistant to the Solicitor General,

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UNITED STATES DEPARTMENT OF JUSTICE, Officeof the Solicitor General, Washington, D.C., forAppellee. ON BRIEF: Andrew J. Savage, III,SAVAGE & SAVAGE, P.A., Charleston, South Car-olina; Lawrence S. Lustberg, Mark A. Berman,GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VEC-CHIONE, P.C., Newark, New Jersey, for Appel-lant. Paul D. Clement, Solicitor General,Reginald I. Lloyd, United States Attorney, Dis-trict of South Carolina, Gregory G. Garre,Deputy Solicitor General, Kevin F. McDonald,Assistant United States Attorney, Claire J.Evans, UNITED STATES DEPARTMENT OF JUS-TICE, Criminal Division, Appellate Section,Washington, D.C., for Appellee. Jenny S. Mar-tinez, Stanford, California; Allison Marston Dan-ner, Nashville, Tennessee; Valerie M. Wagner,Daniel B. Epstein, DECHERT, L.L.P., Palo Alto,California, for Specialists in the Law of War,Amicus Supporting Appellant. Jonathan M.Freiman, NATIONAL LITIGATION PROJECT of theAllard K. Lowenstein International HumanRights Clinic, Yale Law School, New Haven, Con-necticut, for Professors of Evidence and Proce-dure, Amicus Supporting Appellant. Hope R.Metcalf, WIGGIN AND DANA, L.L.P., New Haven,Connecticut, for United States Criminal Scholarsand Historians, Amicus Supporting Appellant.James C. Schroeder, Gary A. Isaac, Heather M.Lewis, MAYER, BROWN, ROWE & MAW, L.L.P.,Chicago, Illinois, for Former Senior JusticeDepartment Officials, Amicus Supporting Appel-lant. Kate Martin, Joseph Onek, CENTER FORNATIONAL SECURITY STUDIES, Washington,D.C., Paul Smith, Joshua A. Block, JENNER &

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BLOCK, L.L.P., New York, New York, for Centerfor National Security Studies, Amicus SupportingAppellant; Lema Bashir, AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE, Washington, D.C.,for American-Arab Anti-Discrimination Com-mittee, Amicus Supporting Appellant; Aimee J.Baldillo, ASIAN AMERICAN JUSTICE CENTER,Washington, D.C., for Asian-American JusticeCenter, Amicus Supporting Appellant; Mary MegMcCarthy, Tara Magner, NATIONAL IMMIGRANTJUSTICE CENTER, Chicago, Illinois, for NationalImmigrant Justice Center, Amicus SupportingAppellant. Gabor Rona, Hina Shamsi, HUMANRIGHTS FIRST, New York, New York; JenniferDaskal, HUMAN RIGHTS WATCH, Washington,D.C.; Donald Francis Donovan, Catherine M.Amirfar, Tali Farimah Farhadian, DEBEVOISE &PLIMPTON, L.L.P., New York, New York, forHuman Rights First and Human Rights Watch,Amici Supporting Appellant. Gerald L. Neuman,Cambridge, Massachusetts; Harold Hongju Koh,New Haven, Connecticut; Sarah H. Cleveland,Cambridge, Massachusetts; Margaret L. Sanner,REED SMITH, L.L.P., Richmond, Virginia, for Pro-fessors of Constitutional Law and Federal Juris-diction, Amicus Supporting Appellant. TimothyJ. Finn, Julia E. McEvoy, Katherine E. Stern,JONES DAY, Washington, D.C., for National Asso-ciation of Criminal Defense Lawyers, AmicusSupporting Appellant. Shankar Narayan, HATEFREE ZONE, Seattle, Washington, for Hate FreeZone, Amicus Supporting Appellant; FarhanaKhera, MUSLIM ADVOCATES, Kensington, Mary-land, for Muslim Advocates, Amicus SupportingAppellant. Morton Sklar, Executive Director,

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Joseph Husty, Legal Intern, WORLD ORGANIZA-TION FOR HUMAN RIGHTS USA, Washington,D.C., with the assistance of Law Student Con-tributors: Melissa Keyes (U. of CA at HastingsLaw School), Charles Wait, Aaron Clark-Rizzio,Kennon Scott, Binish Hasan, Maria Tennyson,Olivia Maginley and Meredith Angelson (NewYork Univ. Law Sch.), Simon Moshenberg, JesseTownsend, Stephanie Hays, Sameer Ahmed andNicholas Pederson (Yale Law School), MattSadler (B.C. Law School), for World Organizationfor Human Rights USA, Amicus SupportingAppellant. David H. Remes, Enrique Armijo,John F. Coyle, COVINGTON & BURLING, L.L.P.,Washington, D.C., for David M. Brahms,Brigadier General, Donald J. Guter, Rear Admi-ral, Merrill A. McPeak, Retired General, AmiciSupporting Appellant.

__________DIANA GRIBBON MOTZ, Circuit Judge:

For over two centuries of growth and struggle,peace and war, the Constitution has secured ourfreedom through the guarantee that, in theUnited States, no one will be deprived of libertywithout due process of law. Yet more than fouryears ago military authorities seized an alienlawfully residing here. He has been held by themilitary ever since—without criminal charge orprocess. He has been so held despite the fact thathe was initially taken from his home in Peoria,Illinois by civilian authorities, and indicted forpurported domestic crimes. He has been so heldalthough the Government has never alleged that

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he is a member of any nation’s military, hasfought alongside any nation’s armed forces, orhas borne arms against the United States any-where in the world. And he has been so held,without acknowledgment of the protectionafforded by the Constitution, solely because theExecutive believes that his military detention isproper.

While criminal proceedings were underwayagainst Ali Saleh Kahlah al-Marri, the Presidentordered the military to seize and detain himindefinitely as an enemy combatant. Since thatorder, issued in June of 2003, al-Marri has beenimprisoned without charge in a military jail inSouth Carolina. Al-Marri petitions for a writ ofhabeas corpus to secure his release from militaryimprisonment. The Government defends thisdetention, asserting that al-Marri associatedwith al Qaeda and “prepar[ed] for acts of inter-national terrorism.” It maintains that the Pres-ident has both statutory and inherentconstitutional authority to subject al-Marri toindefinite military detention and, in any event,that a new statute—enacted years after al-Marri’s seizure—strips federal courts of juris-diction even to consider this habeas petition.

We hold that the new statute does not apply toal-Marri, and so we retain jurisdiction to con-sider his petition. Furthermore, we conclude thatwe must grant al-Marri habeas relief. Evenassuming the truth of the Government’s allega-tions, the President lacks power to order the mil-itary to seize and indefinitely detain al-Marri. Ifthe Government accurately describes al-Marri’sconduct, he has committed grave crimes. But we

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have found no authority for holding that the evi-dence offered by the Government affords a basisfor treating al-Marri as an enemy combatant, oras anything other than a civilian.

This does not mean that al-Marri must be setfree. Like others accused of terrorist activity inthis country, from the Oklahoma City bombers tothe surviving conspirator of the September 11thattacks, al-Marri can be returned to civilian pros-ecutors, tried on criminal charges, and, if con-victed, punished severely. But the Governmentcannot subject al-Marri to indefinite militarydetention. For in the United States, the militarycannot seize and imprison civilians—let aloneimprison them indefinitely.

I.

Al-Marri, a citizen of Qatar, lawfully enteredthe United States with his wife and children onSeptember 10, 2001, to pursue a master’s degreeat Bradley University in Peoria, Illinois, wherehe had obtained a bachelor’s degree in 1991. Thefollowing day, terrorists hijacked four commer-cial airliners and used them to kill and inflictgrievous injury on thousands of Americans.Three months later, on December 12, 2001, FBIagents arrested al-Marri at his home in Peoria asa material witness in the Government’s investi-gation of the September 11th attacks. Al-Marriwas imprisoned in civilian jails in Peoria andthen New York City.

In February 2002, al-Marri was charged in theSouthern District of New York with the posses-sion of unauthorized or counterfeit credit-card

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numbers with the intent to defraud. A year later,in January 2003, he was charged in a second, six-count indictment, with two counts of making afalse statement to the FBI, three counts of mak-ing a false statement on a bank application, andone count of using another person’s identificationfor the purpose of influencing the action of a fed-erally insured financial institution. Al-Marripleaded not guilty to all of these charges. In May2003, a federal district court in New York dis-missed the charges against al-Marri for lack ofvenue.

The Government then returned al-Marri toPeoria and he was re-indicted in the Central Dis-trict of Illinois on the same seven counts, towhich he again pleaded not guilty. The districtcourt set a July 21, 2003 trial date. On Friday,June 20, 2003, the court scheduled a hearing onpre-trial motions, including a motion to suppressevidence against al-Marri assertedly obtained bytorture. On the following Monday, June 23,before that hearing could be held, the Govern-ment moved ex parte to dismiss the indictmentbased on an order signed that morning by thePresident.

In the order, President George W. Bush statedthat he “DETERMINE[D] for the United States ofAmerica that” al-Marri: (1) is an enemy combat-ant; (2) is closely associated with al Qaeda; (3)“engaged in conduct that constituted hostile andwar-like acts, including conduct in preparationfor acts of international terrorism;” (4) “possessesintelligence . . . that . . . would aid U.S. effortsto prevent attacks by al Qaeda;” and (5) “repre-sents a continuing, present, and grave danger to

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the national security of the United States.” ThePresident determined that al-Marri’s detentionby the military was “necessary to prevent himfrom aiding al Qaeda” and thus ordered theAttorney General to surrender al-Marri to theSecretary of Defense, and the Secretary ofDefense to “detain him as an enemy combatant.”

The federal district court in Illinois grantedthe Government’s motion to dismiss the criminalindictment against al-Marri. In accordance withthe President’s order, al-Marri was then trans-ferred to military custody and brought to theNaval Consolidated Brig in South Carolina.

Since that time (that is, for four years) the mil-itary has held al-Marri as an enemy combatant,without charge and without any indication whenthis confinement will end. For the first sixteenmonths of his military confinement, the Govern-ment did not permit al-Marri any communicationwith the outside world, including his attorneys,his wife, or his children. He alleges that he wasdenied basic necessities, interrogated throughmeasures creating extreme sensory deprivation,and threatened with violence. A pending civilaction challenges the “inhuman, degrading” and“abusive” conditions of his confinement. See Com-plaint at 1, Al-Marri v. Rumsfeld, No. 2:05-cv-02259-HFF-RSC (D.S.C. Aug. 8, 2005).

On July 8, 2003, counsel for al-Marri petitionedon his behalf (because it was undisputed that hewas unavailable to petition) for a writ of habeascorpus in the Central District of Illinois. The dis-trict court dismissed the petition for lack ofvenue, Al-Marri v. Bush, 274 F. Supp. 2d 1003(C.D. Ill. 2003); the Seventh Circuit affirmed,

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Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir.2004); and the Supreme Court denied certiorari,al-Marri v. Rumsfeld, 543 U.S. 809 (2004). OnJuly 8, 2004, al-Marri’s counsel filed the presenthabeas petition on al-Marri’s behalf in the Dis-trict of South Carolina. On September 9, 2004,the Government answered al-Marri’s petition,citing the Declaration of Jeffrey N. Rapp, Direc-tor of the Joint Intelligence Task Force for Com-bating Terrorism, as support for the President’sorder to detain al-Marri as an enemy combatant.

The Rapp Declaration asserts that al-Marri: (1)is “closely associated with al Qaeda, an interna-tional terrorist organization with which theUnited States is at war”; (2) trained at an alQaeda terrorist training camp in Afghanistansometime between 1996 and 1998; (3) in the sum-mer of 2001, was introduced to Osama Bin Ladenby Khalid Shaykh Muhammed; (4) at that time,volunteered for a “martyr mission” on behalf of alQaeda; (5) was ordered to enter the UnitedStates sometime before September 11, 2001, toserve as a “sleeper agent” to facilitate terroristactivities and explore disrupting this country’sfinancial system through computer hacking; (6)in the summer of 2001, met with terroristfinancier Mustafa Ahmed Al-Hawsawi, who gaveal-Marri money, including funds to buy a laptop;(7) gathered technical information about poi-sonous chemicals on his laptop; (8) undertookefforts to obtain false identification, credit cards,and banking information, including stolen creditcard numbers; (9) communicated with known ter-rorists, including Khalid Shaykh Muhammed andAl-Hawsawi, by phone and e-mail; and (10) saved

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information about jihad, the September 11thattacks, and Bin Laden on his laptop computer.

The Rapp Declaration does not assert that al-Marri: (1) is a citizen, or affiliate of the armedforces, of any nation at war with the UnitedStates; (2) was seized on or near a battlefield onwhich the armed forces of the United States orits allies were engaged in combat; (3) was ever inAfghanistan during the armed conflict betweenthe United States and the Taliban there; or (4)directly participated in any hostilities againstUnited States or allied armed forces.

On October 14, 2004, the Government permit-ted al-Marri access to his counsel for the firsttime since his initial confinement as an enemycombatant sixteen months before. Al-Marri thensubmitted a reply to the Government’s evidence,contending that he is not an enemy combatant;he then moved for summary judgment. The dis-trict court denied the summary judgment motionand referred the case to a magistrate judge forconsideration of the appropriate process to beafforded al-Marri in light of Hamdi v. Rumsfeld,542 U.S. 507 (2004). The magistrate judge ruledthat the Rapp Declaration provided al-Marri withsufficient notice of the basis of his detention asan enemy combatant and directed al-Marri to filerebuttal evidence.

In response to the magistrate’s ruling, al-Marriagain denied the Government’s allegations, butfiled no rebuttal evidence, contending that theGovernment had an initial burden to produce evi-dence that he was an enemy combatant and thatthe Rapp Declaration did not suffice. The magistrate judge recommended dismissal of

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al-Marri’s habeas petition because al-Marri hadfailed to rebut the allegations in the Rapp Dec-laration. In August 2006, the district courtadopted the magistrate judge’s report and rec-ommendation and dismissed al-Marri’s habeaspetition. A few days later, al-Marri noted thisappeal.1

II.

On November 13, 2006, three months after al-Marri noted his appeal, the Government movedto dismiss this case for lack of jurisdiction, citingsection 7 of the recently enacted Military Com-missions Act of 2006 (MCA), Pub. L. No. 109-366,120 Stat. 2600.

A.

Section 7 of the MCA amends 28 U.S.C.§ 2241(e)—a provision Congress added to the fed-eral habeas corpus statute in the Detainee Treat-ment Act of 2005 (DTA), Pub. L. No. 109-148,§ 1005(e)(1), 119 Stat. 2680, 2741-42. Congressenacted the DTA in response to the SupremeCourt’s holding, in Rasul v. Bush, 542 U.S. 466,475-84, (2004), that the federal habeas corpusstatute, 28 U.S.C. § 2241(a), (c), granted the fed-eral courts jurisdiction over habeas petitionsfiled by aliens held at Guantanamo Bay.

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1 Numerous amici have submitted briefs to us, both onthe jurisdictional and merits questions. Many of these briefshave been helpful and we are especially grateful for the careexhibited in focusing on different issues, thus avoidingredundancy.

In the DTA, Congress amended 28 U.S.C.§ 2241 by adding a new subsection, 2241(e),which removed the statutory grant of federaljurisdiction over actions filed by alien enemycombatants held at Guantanamo Bay. DTA§ 1005(e)(1). Through the DTA, Congress soughtto replace the procedures that Rasul had upheldwith a substitute remedy. In place of the statu-tory right to petition for habeas directly to a fed-eral district court in § 2241(a), Guantanamo Baydetainees would receive a Combatant StatusReview Tribunal (CSRT) conducted “pursuant toapplicable procedures specified by the Secretaryof Defense,” followed by review by the UnitedStates Court of Appeals for the District ofColumbia Circuit. See DTA § 1005(e)(2)(A),(B);id. § 1005(a).

The Supreme Court considered the reach of theDTA in Hamdan v. Rumsfeld, 126 S. Ct. 2749,2762-69 (2006). It held that the DTA did notdivest the federal courts of jurisdiction over§ 2241 habeas actions filed by Guantanamo Baydetainees that were pending when the DTA wasenacted in December 2005.

On October 17, 2006, in response to Hamdan,Congress enacted the MCA, in part to clarify thatit wished to remove § 2241 jurisdiction over pend-ing and future habeas cases from detaineeswhom it believed had only a “statutory right ofhabeas.” See, e.g., 152 Cong. Rec. S10267 (dailyed. Sept. 27, 2006) (statement of Sen. Graham)(emphasis added). Thus, section 7 of the MCAreplaces the habeas provision added by the DTAand substitutes the following:

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(e)(1) No court, justice, or judge shallhave jurisdiction to hear or consider anapplication for a writ of habeas corpusfiled by or on behalf of an alien detainedby the United States who has been deter-mined by the United States to have beenproperly detained as an enemy combat-ant or is awaiting such determination.(2) Except as provided in paragraphs (2) and(3) of section 1005(e) of the [DTA], no court,justice, or judge shall have jurisdiction tohear or consider any other action againstthe United States or its agents relating toany aspect of the detention, transfer, treat-ment, trial, or conditions of confinement ofan alien who is or was detained by theUnited States and has been determined bythe United States to have been properlydetained as an enemy combatant or isawaiting such determination.

MCA § 7(a) (codified at 28 U.S.C.A. § 2241(e)(West 2006)). The new statute expressly providesthat this amendment to § 2241(e) “shall takeeffect on the date of the enactment of this Act[October 17, 2006], and shall apply to all cases,without exception, pending on or after the date ofthe enactment of this Act . . . .” MCA § 7(b).

B.

The Government asserts that the MCA divestsfederal courts of all subject matter jurisdictionover al-Marri’s petition. Al-Marri maintains thatthe MCA, by its plain terms, does not apply to

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him and that if we were to hold it does, the MCAwould be unconstitutional.

Al-Marri’s constitutional claim is a serious one.As an alien captured and detained within theUnited States, he has a right to habeas corpusprotected by the Constitution’s SuspensionClause. See Hamdi v. Rumsfeld, 542 U.S. 507,525 (2004) (“All agree that, absent suspension,the writ of habeas corpus remains available toevery individual detained within the UnitedStates.”). The Supreme Court has explained that“at the absolute minimum, the SuspensionClause protects the writ as it existed in 1789,”INS v. St. Cyr, 533 U.S. 289, 301 (2001) (internalquotation marks omitted), and “[a]t common law,courts exercised habeas jurisdiction over theclaims of aliens detained within sovereign terri-tory of the realm,” Rasul, 542 U.S. at 481.

Al-Marri argues persuasively that the MCA,which simply amended a federal statute—28U.S.C. § 2241—is not, and could not be, a validexercise of Congress’s powers under the Sus-pension Clause. See, e.g., Hamdan, 126 S. Ct. at2764; St. Cyr., 533 U.S. at 298-99. Moreover,although Congress may remove federal jurisdic-tion over habeas petitions without suspendingthe writ if it provides an “adequate and effective”substitute, Swain v. Pressley, 430 U.S. 372, 381(1977), Al-Marri maintains that Congress hasprovided him no substitute at all. Thus, heargues, if the MCA is read to strip our jurisdic-tion over his petition, it violates the SuspensionClause.

The Government seems to concede that al-Marri has a right to habeas corpus protected by

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the Suspension Clause, and acknowledges that“the touchstone of habeas corpus,” and thus anysubstitute remedy, is “[j]udicial review of con-stitutional claims and questions of law.” TheGovernment asserts, however, that Congress hasprovided al-Marri a constitutionally adequatehabeas substitute through the DTA and MCAscheme—an administrative determination by aCSRT followed by limited review of the CSRT’sdecision in the D.C. Circuit. Since al-Marri hasnever been afforded a CSRT and neither theDTA, the MCA, nor any other statute, regulation,or policy guarantees that he be granted one, it isnot immediately apparent how this statutoryarrangement could provide al-Marri a substituteremedy. Al-Marri has also raised substantialquestions as to whether this statutory arrange-ment—were it available to him—would be con-stitutionally adequate. Cf. Boumediene v. Bush,476 F.3d 981, 1004-07 (D.C. Cir. 2007) (Rogers,J., dissenting) (stating that a CSRT followed bylimited D.C. Circuit review is not an adequatehabeas substitute), cert. denied, 127 S. Ct. 1478(2007).

We need not, however, resolve these difficultconstitutional questions because we concludethat the MCA does not apply to al-Marri. TheSupreme Court has instructed that when it is“fairly possible” to read a statute to avoid seriousconstitutional problems a court must do so.Crowell v. Benson, 285 U.S. 22, 62 (1932) (“Whenthe validity of an act of the Congress is drawn inquestion, and even if a serious doubt of consti-tutionality is raised, it is a cardinal principlethat this Court will first ascertain whether a con-

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struction of the statute is fairly possible by whichthe question may be avoided.”); Ashwander v.Tenn. Valley Auth., 297 U.S. 288, 347 (1936)(Brandeis, J. concurring) (“It is not the habit ofthe Court to decide questions of a constitutionalnature unless absolutely necessary to a decisionof the case.” (internal quotation marks omitted));see also St. Cyr, 533 U.S. at 299-300 (applyingthis principle in the context of habeasjurisdiction). In this case, ordinary principles ofstatutory interpretation demonstrate that theMCA does not apply to al-Marri.

C.

As always in interpreting an act of Congress,we begin with the plain language of the statute.See, e.g., Watt v. Alaska, 451 U.S. 259, 265(1981). The MCA eliminates habeas jurisdictionunder § 2241 only for an alien who “has beendetermined by the United States to have beenproperly detained as an enemy combatant or isawaiting such determination.” MCA § 7(a). Thus,the MCA does not apply to al-Marri and the Gov-ernment’s jurisdictional argument fails unless al-Marri (1) “has been determined by the UnitedStates to have been properly detained as anenemy combatant,” or (2) “is awaiting such deter-mination.”

The Government asserts that al-Marri “hasbeen determined by the United States to havebeen properly detained” through the President’sorder of June 23, 2003, designating al-Marri anenemy combatant. Alternatively, the Governmentargues that because the Department of Defense

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claims that if this court dismisses his habeasaction al-Marri will be provided with a CSRT, al-Marri is “awaiting” such a determination for thepurposes of the MCA. We find neither argumentpersuasive.

1.

In his order of June 23, 2003, the President“DETERMINE[D] for the United States of Amer-ica that” al-Marri was an enemy combatant andordered al-Marri detained by the Department ofDefense. This Presidential order may well con-stitute a “determination” by the President, forthe United States, that al-Marri is an enemycombatant. But the plain language of the MCArequires more than this initial determination todivest federal courts of jurisdiction under § 2241.The statute does not eliminate § 2241 jurisdictionin cases filed by an alien whom “the UnitedStates has determined is an enemy combatant” orwho “has been detained as an enemy combatant.”Rather the MCA only eliminates § 2241 jurisdic-tion over a habeas petition filed by an alien who“has been determined by the United States tohave been properly detained as an enemy com-batant” (emphasis added).

The statute’s use of the phrase “has been deter-mined . . . to have been properly detained”requires a two-step process to remove § 2241jurisdiction: (1) an initial decision to detain, fol-lowed by (2) a determination by the UnitedStates that the initial detention was proper. ThePresident’s June 23 order only constitutes an ini-tial decision to detain. To read the statute as the

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Government proposes would eliminate the secondstep and render the statutory language “has beendetermined . . . to have been properly detained”superfluous—something courts are loathe to do.See, e.g., Mackey v. Lanier Collection Agency &Serv., Inc., 486 U.S. 825, 837 (1988) (“[W]e arehesitant to adopt an interpretation of a congres-sional enactment which renders superfluousanother portion of that same law.”).

Other provisions of the DTA and MCA simi-larly demonstrate that Congress intended toremove jurisdiction only in cases in which theGovernment followed this two-step process. Forthose detainees to whom the DTA-MCA schemeapplies, a CSRT (or similar tribunal) determineswhether a person’s initial detention as an enemycombatant is proper. In fact, Congress recognizedthat the very purpose of a CSRT is to “determine”whether an individual has been “properlydetained.” Thus, Congress delineated some basicprocedural requirements for the CSRTs, see DTA§ 1005, and required the Secretary of Defense tosubmit to it within 180 days “the procedures ofthe Combatant Status Review Tribunals . . .that are in operation at Guantanamo Bay, Cuba,for determining the status of the detainees.” DTA§ 1005(a)(1)(A) (emphasis added). The Depart-ment of Defense’s CSRT procedures, in turn,explain that the CSRT process was established“to determine, in a fact-based proceeding,whether the individuals detained by the Depart-ment of Defense at the U.S. Naval Base Guan-tanamo Bay, Cuba, are properly classified asenemy combatants.” Memorandum from DeputySecretary of Defense Gordon England to Secre-

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taries of the Military Departments et al. 1 (July14, 2006) [hereinafter CSRT Procedures Memo-randum] (emphasis added).

Moreover, the DTA and MCA provisions estab-lishing D.C. Circuit review of CSRT final deci-sions are entitled “Review of decisions ofcombatant status review tribunals of propriety ofdetention.” See DTA § 1005(e)(2); MCA § 10(emphasis added). These provisions allow forD.C. Circuit review only of a final decision of a“Combatant Status Review Tribunal that analien is properly detained as an enemy combat-ant.” DTA § 1005(e)(2)(A) (emphasis added).These procedures reinforce the plain language ofsection 7 of the MCA. Congress intended toremove federal courts’ § 2241 jurisdiction onlywhen an individual has been detained and aCSRT (or similar Executive Branch tribunal) hasmade a subsequent determination that the deten-tion is proper.2

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2 For these reasons, the Government’s brief suggestionthat the district court’s denial of habeas relief to al-Marricould constitute the determination “by the United States”that he had “been properly detained” is inconsistent withlegislative intent. For under the system Congress enacted,a CSRT or similar Executive Branch tribunal makes thatdetermination “by the United States.” Indeed, the Govern-ment has informed the federal courts of precisely this pointin other litigation involving the MCA. See Government’sSupplemental Br. Addressing the Military Commissions Actat 6 n.1, Boumediene, 476 F.3d 981 (D.C. Cir. 2007) (Nos. 05-5062, 05-5063, 05-5064, and 05-5095 through 05-5116) (not-ing that “[t]he United States, through the CSRTs, hasdetermined that petitioners are ‘properly detained’ as enemycombatants” under the MCA). And, of course, the Govern-ment has repeatedly and vehemently asserted that the Exec-

Thus, the plain language of the MCA does notpermit the Government’s interpretation—i.e.,that the President’s initial order to detain al-Marri as an enemy combatant constitutes both adecision to detain al-Marri and a determinationunder the MCA that al-Marri has been properlydetained as an enemy combatant. The MCArequires both to eliminate our jurisdiction.

2.

The Government’s remaining jurisdictionalcontention is that even if al-Marri has not yet“been determined by the United States to havebeen properly detained,” the Government plansto provide him with a CSRT in the future, and sounder the MCA he is “awaiting such determina-tion.” Al-Marri maintains that Congress intendedthe term “awaiting such determination” to applyonly to new detainees brought to GuantanamoBay, or to those captured and held elsewhere out-side the United States, and that the Governmentreads the term far more broadly than Congressintended.

Neither the DTA-MCA nor any other law orpolicy requires that al-Marri receive a CSRT, or

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utive Branch, not the Judiciary, determines a person’senemy combatant status. See, e.g., Hamdi, 542 U.S. 507.Moreover, the very purpose of section 7 of the MCA is toeliminate the jurisdiction of federal judges over certainenemy combatant cases. Hence, adoption of the Govern-ment’s argument would mean that Congress empowered fed-eral judges to make a “determination [for] the UnitedStates” in the very cases in which those judges had no juris-diction. Congress could not have intended such a result.

even indicates that Congress believed he wouldbe eligible for a CSRT and so could be “awaiting”one. At the same time, Congress did notexpressly prohibit al-Marri from receiving aCSRT. To the extent that the plain language ofthe MCA does not clearly state who is “awaiting”a determination, its context and legislative his-tory make clear that this phrase does not applyto persons, like al-Marri, captured and heldwithin the United States. See, e.g., King v. St.Vincent’s Hosp., 502 U.S. 215, 221 (1991) (“[A]cardinal rule [is] that a statute is to be read as awhole . . . since the meaning of statutory lan-guage, plain or not, depends on context.” (citationomitted)); Crandon v. United States, 494 U.S.152, 158 (1990) (“In determining the meaning ofthe statute, we look not only to the particularstatutory language, but to the design of thestatute as a whole and to its object and policy.”).

In enacting the MCA, Congress distinguishedbetween those individuals it believed to have aconstitutional right to habeas corpus, and thoseindividuals it understood had been extended theright of habeas corpus only by statute, i.e., 28U.S.C. § 2241. The supporters of the MCA con-sciously tracked the distinction the SupremeCourt had drawn in Johnson v. Eisentrager, 339U.S. 763, 777-78 (1950), and United States v. Ver-dugo-Urquidez, 494 U.S. 259, 271 (1990),between aliens within the United States whobecome “ ‘invested with the rights guaranteed bythe Constitution to all people within our bor-ders,’ ” Verdugo-Urquidez, 494 U.S. at 271 (quot-ing Kwong Hai Chew v. Colding, 344 U.S. 590,596 n.5 (1953)), and aliens who have no lawful

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contacts with this country and are captured andheld outside its sovereign territory. See, e.g., 152Cong. Rec. S10268 (daily ed. Sept. 27, 2006)(statement of Sen. Kyl); 152 Cong. Rec. S10406-07 (daily ed. Sept. 28, 2006) (statement of Sen.Sessions).

Congress sought to eliminate the statutorygrant of habeas jurisdiction for those aliens cap-tured and held outside the United States whocould not lay claim to constitutional protections,but to preserve the rights of aliens like al-Marri,lawfully residing within the country with sub-stantial, voluntary connections to the UnitedStates, for whom Congress recognized that theConstitution protected the writ of habeas corpus.As the Chairman of the House Judiciary Com-mittee and floor manager for the MCA in theHouse explained, “There are two types of habeascorpus: one is the constitutional great writ. Weare not talking about that here . . . . The otheris statutory habeas corpus, which has been rede-fined time and time again by the Congress. Thatis what we are talking about here . . . .” 152Cong. Rec. H7548 (daily ed. Sept. 27, 2006)(statement of Rep. Sensenbrenner); see also H.R.Rep. No. 109-664, pt. 2, at 5-6 (2006) (noting that“aliens receive constitutional protections whenthey have come within the territory of the UnitedStates and developed substantial connectionswith this country” and that the MCA “clarifiesthe intent of Congress that statutory habeas cor-pus relief is not available to alien unlawfulenemy combatants held outside of the UnitedStates” (internal quotation marks omitted)).

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In fact, notwithstanding its posture in thiscase,3 the Government has otherwise demon-

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3 Consistent with its litigation strategy, the Govern-ment briefly suggests that al-Marri “is on the same footingas alien enemy combatants at Guantanamo” because theDTA does not provide Guantanamo detainees with “a statu-tory right to a CSRT.” This contention misses the mark.First, Congress knew when it enacted the MCA that theExecutive had already provided CSRTs to all GuantanamoBay detainees, and that the CSRT procedures—whichCongress required be provided to it, DTA § 1005(a)(1)(A)—were designed to apply only to Guantanamo detainees. Incontrast, when Congress enacted the MCA on October 17,2006, the Government had never indicated any intention toconvene a CSRT for anyone like al-Marri, captured and heldwithin the United States. Moreover, and just as importantly,although Congress believed that the Guantanamo detaineeshad no constitutional right to habeas corpus, and so believedit had no constitutional need to provide them a statutoryalternative, Congress recognized that aliens captured andheld within the United States did have a constitutional rightto habeas. If Congress had intended to provide an adequatesubstitute for the constitutional protections of aliens withinthe United States, surely it would have enacted legislationto do so.

For these same reasons, the Government’s attempt to findsignificance in the MCA’s removal of the DTA’s limiting ref-erences to “Guantanamo Bay, Cuba” is also misplaced. Infact, that change merely allowed the MCA to apply to alienscaptured and held in other places outside the United States,for example in Iraq and Afghanistan, see, e.g., 152 Cong.Rec. S10267 (daily ed. Sept. 27, 2006) (statement of Sen.Graham), and made clear in the face of public discussionabout closing Guantanamo Bay that the rights of detaineesmoved from Guantanamo would not change. Even the Gov-ernment ultimately concedes that the “amendment mayhave been designed to underscore the absence of habeas foraliens detained abroad at locations other than Guantanamo,as opposed to aliens detained in the United States.”

strated that it shares this understanding of thescope of the MCA. On January 18, 2007, while al-Marri’s appeal was pending, the Attorney Gen-eral himself testified before Congress that theMCA did not affect any habeas rights historicallyprotected by the Constitution. Citing Eisentragerin written testimony to the Senate JudiciaryCommittee, he explained: “The MCA’s restric-tions on habeas corpus petitions did not repre-sent any break from the past. Indeed, it has beenwell-established since World War II that enemycombatants captured abroad have no constitu-tional right to habeas petitions in the UnitedStates courts.” Oversight of the U.S. Dep’t of Jus-tice: Hearing Before the S. Comm. on the Judi-ciary, 110th Cong. (Jan. 18, 2007) (statement ofAlberto Gonzales, Att’y Gen. of the UnitedStates) (emphasis added).

Furthermore, the Government’s treatment ofal-Marri suggests that, despite its litigation pos-ture, it does not actually believe that the CSRTprocess in the DTA and MCA applies to al-Marri.In the four years since the President ordered al-Marri detained as an enemy combatant, the Gov-ernment has completed CSRTs for each of themore than five hundred detainees held at Guan-tanamo Bay. Yet it was not until November 13,2006, the very day the Government filed itsmotion to dismiss the case at hand, that the Gov-ernment even suggested that al-Marri might begiven a CSRT. At that time the Government prof-fered a memorandum from Deputy Secretary ofDefense Gordon England directing that al-Marribe provided a CSRT “upon dismissal” of this case.This memorandum is too little too late.

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The CSRT procedures, which the Englandmemorandum suggests would govern al-Marri’shypothetical tribunal, by their own terms onlyapply to aliens detained “at the Guantanamo BayNaval Base, Cuba.” CSRT Procedures Memoran-dum, Enclosure (1), at 1. Moreover, the DTA andMCA provide for limited D.C. Circuit review onlyto detainees for whom a CSRT “has been con-ducted, pursuant to applicable proceduresspecified by the Secretary of Defense.” DTA§ 1005(e)(2)(B)(ii) (emphasis added); see MCA§ 10. Because the procedures that would governal-Marri’s hypothetical CSRT are “applicable”only to persons detained at Guantanamo Bay,even were al-Marri to receive a CSRT pursuantto them, he might not be eligible for judicialreview.

Given these provisions, the Government’s argu-ment that the phrase “awaiting such determina-tion” covers persons confined within the UnitedStates yields a strange result. It would meanthat Congress assured that Guantanamo Baydetainees were provided with an administrativefactfinding process (the CSRT) followed by judi-cial review in the D.C. Circuit when eliminatinghabeas jurisdiction over their cases—but thatCongress provided neither any substitute admin-istrative procedure nor any form of judicialreview when eliminating the habeas rights ofthose captured and detained within the UnitedStates. The Government offers nothing to indi-cate that Congress embarked on this strangecourse, and the legislative history of the MCArenders that theory untenable.

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Perhaps because the Government knows thatCongress did not intend the CSRT process toapply to persons like al-Marri, the England mem-orandum neither convenes nor even schedules aCSRT for al-Marri. Indeed, in its motion to dis-miss, the Government acknowledges that theEngland memorandum only indicates “how thegovernment plans to handle al-Marri in the eventthe courts agree that the MCA divested thecourts of jurisdiction.” Thus, the England mem-orandum makes al-Marri’s CSRT at best condi-tional—triggered only “in the event” that wedismiss this litigation. In other words, the mem-orandum says only that al-Marri might receive aCSRT if this court dismisses his petition becausehe is awaiting a CSRT, but al-Marri will beawaiting a CSRT only if we dismiss his petition.

If al-Marri is “awaiting” a CSRT it is onlybecause he might, through the good graces of theExecutive, some day receive one. But he mightnot. After all, the Government’s primary juris-dictional argument in this case is that the Pres-ident’s initial order to detain al-Marri constitutesthe sole “determination” that he is due. And sounder the Government’s view, al-Marri mightwell be “awaiting” a determination of the pro-priety of his detention for the rest of his life—aresult Congress could not have countenanced foran individual it understood to have a constitu-tional right to habeas corpus.

In sum, the Government’s interpretation of theMCA is not only contrary to legislative intent,but also requires reading the phrase “awaitingsuch determination” so broadly as to make itmeaningless. We are not at liberty to interpret

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statutes so as to render them meaningless. SeeScott v. United States, 328 F.3d 132, 139 (4thCir. 2003) (“[W]e must . . . avoid any interpre-tation that may render statutory terms mean-ingless . . . .”) (citing Freytag v. Comm’r InternalRevenue, 501 U.S. 868, 877 (1991)). The phrase“awaiting such determination” gains meaningonly if it refers to alien detainees captured andheld outside the United States—whom Congressboth believed had no constitutional right tohabeas and expected would receive a CSRT basedon the larger DTA-MCA scheme. Al-Marri is notsuch a detainee; therefore he is not “awaitingsuch determination” within the terms of theMCA.

3.

For these reasons, we must conclude that theMCA does not apply to al-Marri. He was not cap-tured outside the United States, he is not beingheld at Guantanamo Bay or elsewhere outsidethe United States, he has not been afforded aCSRT, he has not been “determined by theUnited States to have been properly detained asan enemy combatant,” and he is not “awaitingsuch determination.” The MCA was not intendedto, and does not, apply to aliens like al-Marri,who have legally entered, and are seized whilelegally residing in, the United States. Accord-ingly, the Government’s jurisdictional argumentfails and we turn to the merits of al-Marri’s peti-tion.

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III.

Al-Marri premises his habeas claim on theFifth Amendment’s guarantee that no person liv-ing in this country can be deprived of libertywithout due process of law. He maintains thateven if he has committed the acts the Govern-ment alleges, he is not a combatant but a civilianprotected by our Constitution, and thus is notsubject to military detention. Al-Marri acknowl-edges that the Government can deport him orcharge him with a crime, and if he is convicted ina civilian court, imprison him. But he insists thatneither the Constitution nor any law permits theGovernment, on the basis of the evidence it hasproffered to date—even assuming all of that evi-dence is true—to treat him as an enemy com-batant and subject him to indefinite militarydetention, without criminal charge or process.

The Government contends that the districtcourt properly denied habeas relief to al-Marribecause the Constitution allows detention ofenemy combatants by the military without crim-inal process, and according to the Government ithas proffered evidence that al-Marri is a com-batant. The Government argues that the Autho-rization for Use of Military Force (AUMF), Pub.L. No. 107-40, 115 Stat. 224 (2001), as construedby precedent and considered in conjunction withthe “legal background against which [it] wasenacted,” empowers the President on the basis ofthat proffered evidence to order al-Marri’s indef-inite military detention as an enemy combatant.Alternatively, the Government contends thateven if the AUMF does not authorize the Presi-

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dent to order al-Marri’s military detention, thePresident has “inherent constitutional power” todo so.

A.

Each party grounds its case on well establishedlegal doctrine. Moreover, important principlesguiding our analysis seem undisputed. Beforeaddressing the conflicting contentions of the par-ties, we note these fundamental principles, whichwe take to be common ground.

The Constitution guarantees that no “person”shall “be deprived of life, liberty, or property,without due process of law.” U.S. Const., amend.V; see also id. amend. XIV, § 1. The text of theFifth Amendment affords this guarantee to “per-son[s],” not merely citizens, and so the constitu-tional right to freedom from deprivation ofliberty without due process of law extends to alllawfully admitted aliens living within the UnitedStates. See Wong Wing v. United States, 163 U.S.228, 238 (1896); see also Verdugo-Urquidez, 494U.S. at 271.

To be sure, our Constitution has no “force inforeign territory unless in respect of our citi-zens.” United States v. Curtiss-Wright ExportCorp., 299 U.S. 304, 318 (1936). But, as ChiefJustice Rehnquist explained, a long line ofSupreme Court cases establish that aliensreceive certain protections including those rightsguaranteed by the Due Process Clause—“whenthey have come within the territory of the UnitedStates and developed substantial connectionswith this country.” Verdugo-Urquidez, 494 U.S.

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at 271; see also Kwong Hai Chew, 344 U.S. at 596n.5 (noting that “once an alien lawfully entersand resides in this country he becomes investedwith . . . rights . . . protected by . . . the FifthAmendment[ ] and by the due process clause ofthe Fourteenth Amendment”) (internal quotationmarks omitted); Wong Wing, 163 U.S. at 238(holding that “all persons within the territory ofthe United States are entitled to the protectionguaranteed by” the Due Process Clause of theFifth Amendment); Yick Wo v. Hopkins, 118 U.S.356, 369 (1886) (explaining that the Due ProcessClause of the Fourteenth Amendment protects“all persons within the territorial jurisdiction” ofthe United States). Thus, the Due Process Clauseprotects not only citizens but also aliens, like al-Marri, lawfully admitted to this country whohave established substantial connections here—in al-Marri’s case by residing in Illinois for sev-eral months, with his family, and attendinguniversity there.4

“Freedom from imprisonment—from govern-ment custody, detention, or other forms of phys-ical restraint—lies at the heart of the liberty that[the Due Process] Clause protects.” Zadvydas v.Davis, 533 U.S. 678, 690 (2001); see also Fouchav. Louisiana, 504 U.S. 71, 80 (1992). This conceptdates back to Magna Carta, which guaranteedthat “government would take neither life, liberty,nor property without a trial in accord with thelaw of the land.” Duncan v. Louisiana, 391 U.S.

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4 Hence, the case at hand involves—and we limit ouranalysis to—persons seized and detained within the UnitedStates who have constitutional rights under the Due ProcessClause.

145, 169 (1968) (Black, J., concurring). The “lawof the land” at its core provides that “no man’slife, liberty or property be forfeited as a punish-ment until there has been a charge fairly madeand fairly tried in a public tribunal.” In re Oliver,333 U.S. 257, 278 (1948). Thus, the SupremeCourt has recognized that, because of the DueProcess Clause, it “may freely be conceded” thatas a “ ‘general rule’ . . . the government may notdetain a person prior to a judgment of guilt in acriminal trial.” United States v. Salerno, 481 U.S.739, 749 (1987).

The Court, however, has permitted a limitednumber of specific exceptions to this general rule.Although some process is always required inorder to detain an individual, in special situa-tions detention based on process less than thatattendant to a criminal conviction does not vio-late the Fifth Amendment. See, e.g., Kansas v.Hendricks, 521 U.S. 346, 358 (1997) (civil com-mitment of mentally ill sex offenders); Salerno,481 U.S. 739 (pretrial detention of dangerousadults); Schall v. Martin, 467 U.S. 253 (1984)(pretrial detention of dangerous juveniles);Addington v. Texas, 441 U.S. 418, 427-28 (1979)(civil commitment of mentally ill); Humphrey v.Smith, 336 U.S. 695 (1949) (courts martial ofAmerican soldiers). Among these recognizedexceptions is the one on which the Governmentgrounds its principal argument in this case:Congress may constitutionally authorize thePresident to order military detention, withoutcriminal process, of persons who “qualify as‘enemy combatants,’ ” that is, fit within that par-

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ticular “legal category.” Hamdi v. Rumsfeld, 542U.S. 507, 516, 522 n.1 (2004) (plurality).5

The act of depriving a person of the liberty pro-tected by our Constitution is a momentous one;thus, recognized exceptions to criminal processare narrow in scope, and generally permit onlylimited periods of detention. See, e.g., Jackson v.Indiana, 406 U.S. 715, 738 (1972). And, ofcourse, the Government can never invoke anexception, and so detain a person without crimi-nal process, if the individual does not fit withinthe narrow legal category of persons to whom theexception applies. For example, the SupremeCourt has explained that the Constitution doesnot permit the Government to detain a predatory

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5 Case law also establishes that during times of warCongress may constitutionally authorize the President todetain “enemy aliens,” also known as “alien enemies,”defined as “subject[s] of a foreign state at war with theUnited States.” Eisentrager, 339 U.S. at 769 n.2 (internalquotation marks omitted); see Ludecke v. Watkins, 335 U.S.160 (1948). And, the Government can detain potentially dan-gerous resident aliens for a limited time pending deporta-tion. See, e.g., Carlson v. Landon, 342 U.S. 524, 537-42(1952); cf. Zadvydas v. Davis, 533 U.S. 678 (2001) (con-struing a statute’s authorization of post-removal-perioddetention to not permit indefinite detention of aliens, toavoid serious doubt as to its constitutionality). But, as theGovernment recognizes, the Alien Enemy Act, the statutethe Court considered in Eisentrager and Ludecke, does notapply to al-Marri’s case—in fact, al-Marri is not an “enemyalien” but a citizen of Qatar, with which the United Stateshas friendly diplomatic relations; and the Government doesnot seek to deport al-Marri. Therefore neither of theseexceptions is offered by the Government as a basis for hold-ing al-Marri without criminal charge, and neither is appli-cable here.

sex criminal through a civil commitment processsimply by establishing that he is dangerous. Thecivil commitment process may only be substi-tuted for criminal process for such a criminal ifthe Government’s evidence establishes “proof ofdangerousness” and “proof of some additionalfactor, such as a ‘mental illness’ or ‘mentalabnormality.’ ” Hendricks, 521 U.S. at 358.

In Hamdi, the plurality explained that pre-cisely the same principles apply when the Gov-ernment seeks to detain a person as an enemycombatant. Under the habeas procedure pre-scribed in Hamdi, if the Government asserts anexception to the usual criminal process by detain-ing as an enemy combatant an individual withconstitutional rights, it must proffer evidence todemonstrate that the individual “qualif[ies]” forthis exceptional treatment. 542 U.S. at 516, 534.Only after the Government has “put[ ] forth cred-ible evidence that” an individual “meets theenemy-combatant criteria” does “the onus” shiftto the individual to demonstrate “that he fallsoutside the [enemy combatant] criteria.” Id. at534. For in this country, the military cannotseize and indefinitely detain an individual—par-ticularly when the sole process leading to hisdetention is a determination by the Executivethat the detention is necessary6—unless the Gov-

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6 Hamdi recognizes that the sole process that the Gov-ernment need provide in order to initially detain an enemycombatant is a presidential determination that the detentionis necessary. 342 U.S. at 518. Of course, Hamdi also reaf-firms that the writ of habeas corpus provides a remedy tochallenge collaterally the legality of the ongoing detention.Id. at 525-26. Although the habeas remedy follows from the

ernment demonstrates that he “qualif[ies]” forthis extraordinary treatment because he fitswithin the “legal category” of enemy combatants.Id. at 516, 522 n.1.

Moreover, when the Government contends, asit does here, that an individual with constitu-tional rights is an enemy combatant, whoseexclusive opportunity to escape indefinite mili-tary detention rests on overcoming presumptivelyaccurate hearsay, courts must take particularcare that the Government’s allegations demon-strate that the detained individual is not a civil-ian, but instead, as the Supreme Court hasexplained, “meets the enemy-combatant criteria.”Id. at 534. For only such care accords with the“deeply rooted and ancient opposition in thiscountry to the extension of military control overcivilians.” Reid v. Covert, 354 U.S. 1, 33 (1957)(plurality).

These principles thus form the legal frameworkfor consideration of the issues before us. Bothparties recognize that it does not violate the DueProcess Clause for the President to order the mil-itary to seize and detain individuals who “qual-ify” as enemy combatants for the duration of awar. They disagree, however, as to whether theevidence the Government has proffered, evenassuming its accuracy, establishes that al-Marrifits within the “legal category” of enemy com-batants. The Government principally contendsthat its evidence establishes this and therefore

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Suspension Clause, the Hamdi plurality borrowed the dueprocess balancing approach from Mathews v. Eldridge, 424U.S. 319 (1976), to design the specific requirements of thishabeas remedy. Hamdi, 542 U.S. at 525-35.

the AUMF grants the President statutory author-ity to detain al-Marri as an enemy combatant.Alternatively, the Government asserts that thePresident has inherent constitutional authorityto order al-Marri’s indefinite military detention.Al-Marri maintains that the proffered evidencedoes not establish that he fits within the “legalcategory” of enemy combatant and so the AUMFdoes not authorize the President to order the mil-itary to seize and detain him, and that the Pres-ident has no inherent constitutional authority toorder this detention. We now turn to these con-tentions.

B.

The Government’s primary argument is thatthe AUMF, as construed by precedent and con-sidered against “the legal background againstwhich [it] was enacted,” i.e. constitutional andlaw-of-war principles, empowers the President toorder the military to seize and detain al-Marri asan enemy combatant. The AUMF provides:

. . . the President is authorized to useall necessary and appropriate forceagainst those nations, organizations, orpersons he determines planned, autho-rized, committed, or aided the terroristattacks that occurred on September 11,2001, or harbored such organizations orpersons, in order to prevent any futureacts of international terrorism againstthe United States by such nations, orga-nizations or persons.

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115 Stat. 224.7 In considering the Government’sAUMF argument, we first note the limits theGovernment places on its interpretation of thisstatute, and then consider the Government’s cen-tral contention.

1.Tellingly, the Government does not argue that

the broad language of the AUMF authorizes thePresident to subject to indefinite military deten-tion anyone he believes to have aided any“nation[ ], organization[ ], or person[ ]” related tothe September 11th attacks. Such an interpre-tation would lead to absurd results that Congresscould not have intended. Under that reading ofthe AUMF, the President would be able to sub-ject to indefinite military detention anyone,including an American citizen, whom the Presi-dent believed was associated with any organiza-tion that the President believed in some way“planned, authorized, committed, or aided” theSeptember 11th attacks, so long as the Presidentbelieved this to be “necessary and appropriate” toprevent future acts of terrorism.

Under such an interpretation of the AUMF, ifsome money from a nonprofit charity that feeds

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7 Although the Government asserts in a footnote thatthe MCA “buttresses” the President’s “inherent authority” todetain al-Marri, it does not assert that the MCA providesstatutory authority to detain enemy combatants. Plainly,the MCA provides no such authority, for it addresses onlywhether a detained individual is an unlawful enemy com-batant subject to military trial, not whether an individualwith constitutional rights seized in this country qualifies asan enemy combatant in the first instance.

Afghan orphans made its way to al Qaeda, thePresident could subject to indefinite militarydetention any donor to that charity. Similarly,this interpretation of the AUMF would allow thePresident to detain indefinitely any employee orshareholder of an American corporation thatbuilt equipment used by the September 11th ter-rorists; or allow the President to order the mili-tary seizure and detention of an American-citizenphysician who treated a member of al Qaeda.

To read the AUMF to provide the Presidentwith such unlimited power would present seriousconstitutional questions, for the Supreme Courthas long recognized that the Due Process Clause“cannot be . . . construed as to leave congressfree to make any process ‘due process of law,’ byits mere will.” See Murray’s Lessee v. HobokenLand & Improvement Co., 59 U.S. (18 How.) 272,276-77 (1855).

2.

We need not here deal with the absurd results,nor reach the constitutional concerns, raised byan interpretation of the AUMF that authorizesthe President to detain indefinitely—withoutcriminal charge or process—anyone he believes tohave aided any “nation[ ], organization[ ], or per-son[ ]” related to the September 11th terrorists.For the Government wisely limits its argument.It relies only on the scope of the AUMF as con-strued by precedent and considered in light of“the legal background against which [it] wasenacted.” Specifically, the Government contendsthat “[t]he Supreme Court’s and this Court’sprior construction of the AUMF govern this case

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and compel the conclusion that the President isauthorized to detain al-Marri as an enemy com-batant.”

I.

The precedent interpreting the AUMF on whichthe Government relies for this argument consistsof two cases: the Supreme Court’s opinion inHamdi, 542 U.S. 507, and our opinion in Padillav. Hanft, 423 F.3d 386 (4th Cir. 2005). The “legalbackground” for the AUMF, which it cites, con-sists of two cases from earlier conflicts, Ex ParteQuirin, 317 U.S. 1 (1942) (World War II), and ExParte Milligan, 71 U.S. (4 Wall.) 2 (1866) (U.S.Civil War), as well as constitutional and law-of-war principles.

With respect to the latter, we note that Amer-ican courts have often been reluctant to followinternational law in resolving domestic disputes.In the present context, however, they, like theGovernment here, have relied on the law of war—treaty obligations including the Hague andGeneva Conventions and customary principlesdeveloped alongside them. The law of war pro-vides clear rules for determining an individual’sstatus during an international armed conflict,distinguishing between “combatants” (membersof a nation’s military, militia, or other armedforces, and those who fight alongside them) and“civilians” (all other persons).8 See, e.g., Geneva

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8 Thus, “civilian” is a term of art in the law of war, notsignifying an innocent person but rather someone in a cer-tain legal category, not subject to military seizure or deten-tion. So too, a “combatant” is by no means always a

Convention Relative to the Treatment of Prison-ers 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 ofCivilian Persons in Time of War (Fourth GenevaConvention) art. 4, Aug. 12, 1949, 6 U.S.T. 3516,75 U.N.T.S. 287. American courts have repeat-edly looked to these careful distinctions made inthe law of war in identifying which individualsfit within the “legal category” of “enemy com-batants” under our Constitution. See, e.g.,Hamdi, 542 U.S. at 518; Quirin, 317 U.S. at 30-31 & n.7; Milligan, 71 U.S. at 121-22; Padilla,423 F.3d at 391.

In the case at hand, the Government assertsthat the construction given the AUMF in Hamdiand Padilla—based on these law-of-war princi-ples—”compel[s] the conclusion that the Presi-dent is authorized [by the AUMF] to detainal-Marri as an enemy combatant.” In other

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wrongdoer, but rather a member of a different “legal cate-gory” who is subject to military seizure and detention.Hamdi, 542 U.S. at 522 n.1. For example, our brave soldiersfighting in Germany during World War II were “combatants”under the law of war, and viewed from Germany’s perspec-tive they were “enemy combatants.” While civilians are sub-ject to trial and punishment in civilian courts for all crimescommitted during wartime in the country in which they arecaptured and held, combatant status protects an individualfrom trial and punishment by the capturing nation, unlessthe combatant has violated the laws of war. See Hamdi, 542U.S. at 518; Quirin, 317 U.S. at 28-31. Nations in interna-tional conflicts can summarily remove the adversary’s “com-batants,” i.e. the “enemy combatants,” from the battlefieldand detain them for the duration of such conflicts, but nosuch provision is made for “civilians.” Id.

words, the Government contends that al-Marrifits within the “legal category” of persons thatthe Supreme Court in Hamdi, and this court inPadilla, held the AUMF authorized the Presidentto detain as enemy combatants. Thus, we exam-ine those cases to determine whether the inter-pretation of the AUMF they adopt does indeedempower the President to treat al-Marri as anenemy combatant.

In Hamdi, the Supreme Court looked to prece-dent and the law of war to determine whetherthe AUMF authorized the President to detain asan enemy combatant an American citizen cap-tured while engaging in battle against Americanand allied armed forces in Afghanistan as part ofthe Taliban. See Hamdi, 542 U.S. at 518-22. Insupport of that detention, the Governmentoffered evidence that Yaser Esam Hamdi “affili-ated with a Taliban military unit and receivedweapons training,” “took up arms with the Tal-iban,” “engaged in armed conflict against theUnited States” in Afghanistan, and when cap-tured on the battlefield “surrender[ed] hisKalishnikov assault rifle.” Hamdi, 542 U.S. at510, 513, 516 (internal quotation marks omitted).Hamdi’s detention was upheld because in fight-ing against the United States on the battlefieldin Afghanistan with the Taliban, the de factogovernment of Afghanistan at the time,9 Hamdi

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9 See White House Fact Sheet: Status of Detainees atGuantanamo (Feb. 7, 2002), http://www.pegc.us/archive/White_House/20020207_WH_POW_fact_sheet.txt; see alsoProtocol Additional to the Geneva Conventions of 12 August1949, and Relating to the Protection of Victims of Interna-tional Armed Conflicts (Protocol I), June 8, 1977, arts. 43-

bore arms with the army of an enemy nation andso, under the law of war, was an enemy combat-ant. Hamdi, 542 U.S. at 518-20.

The Hamdi Court expressly recognized that theAUMF did not explicitly provide for detention.Id. at 519; see also id. at 547 (Souter, J., con-curring). It concluded, however, “in light of” thelaw-of-war principles applicable to Hamdi’s bat-tlefield capture, that this was “of no moment” inthe case before it. Id. at 519 (plurality). As theplurality explained, “[b]ecause detention to pre-vent a combatant’s return to the battlefield is afundamental incident of waging war, in permit-ting the use of ‘necessary and appropriate force,’Congress has clearly and unmistakably autho-rized detention in the narrow circumstances con-sidered here.” Id. (emphasis added). Thus, theHamdi Court reached the following limited hold-ing: “the AUMF is explicit congressional autho-rization for the detention of individuals in thenarrow category we describe,” that is, individualswho were “part of or supporting forces hostile tothe United States or coalition partners inAfghanistan and who engaged in an armed con-flict against the United States there.” Hamdi,542 U.S. at 516-17 (plurality) (internal quotationmarks omitted) (emphasis added); accord id. at587 (Thomas, J., dissenting). Indeed, the plu-rality expressly explained that its opinion “onlyfinds legislative authority to detain under the

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44, 1125 U.N.T.S. 3 (defining combatants in conflictsbetween nations as members, other than chaplains and med-ical personnel, of “all organized armed forces, groups andunits which are under a command responsible to that[nation] for the conduct of its subordinates”).

AUMF once it is sufficiently clear that the indi-vidual is, in fact, an enemy combatant.” Id. at523 (plurality) (emphasis added).

In Padilla, we similarly held that the AUMFauthorized the President to detain as an enemycombatant an American citizen who “was armedand present in a combat zone” in Afghanistan aspart of Taliban forces during the conflict therewith the United States. 423 F.3d at 390-91(internal quotation marks omitted). The Gov-ernment had not been able to capture JosePadilla until he came to the border of the UnitedStates, but because the Government presentedevidence that Padilla “took up arms againstUnited States forces in [Afghanistan] in the sameway and to the same extent as did Hamdi” weconcluded that he “unquestionably qualifies asan ‘enemy combatant’ as that term was definedfor the purposes of the controlling opinion inHamdi.” 423 F.3d at 391.10 We too invoked the

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10 Although our opinion discussed Padilla’s associationwith al Qaeda, we held that Padilla was an enemy combat-ant because of his association with Taliban forces, i.e.Afghanistan government forces, on the battlefield inAfghanistan during the time of the conflict between theUnited States and Afghanistan. Padilla, 423 F.3d at 391. Al-Marri urges us to ignore Padilla in light of its subsequenthistory. See Padilla v. Hanft, 432 F.3d 582, 583 (4th Cir.2005) (noting that the Government’s transfer of Padilla tocivilian custody for criminal trial after arguing before thiscourt that he was an enemy combatant created “an appear-ance that the government may be attempting to avoid con-sideration of our decision by the Supreme Court”). Thathistory is troubling but we see no need to avoid Padilla’snarrow holding.

(footnote continued)

law of war, upholding Padilla’s detention becausewe understood “the plurality’s reasoning inHamdi to be that the AUMF authorizes the pres-ident to detain all who qualify as ‘enemy com-batants’ within the meaning of the laws of war.”Id. at 392. We also noted that Padilla’s detention,like Hamdi’s, was permissible “ ‘to prevent a com-batant’s return to the battlefield . . . a funda-mental incident of waging war.’ ” Id. at 391(quoting Hamdi, 542 U.S. at 519) (emphasisadded).

Supreme Court precedent offered substantialsupport for the narrow rulings in Hamdi and

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We do wish to respond to points concerning Padilla raisedby our friend in dissent. First, we do not, as the dissent sug-gests, post at 80-81, ignore Padilla’s holding that an indi-vidual qualifying as an “enemy combatant” may be capturedand detained in the United States. Padilla provides noprecedent for al-Marri’s military capture and detention inthis country because al-Marri, for the reasons explained intext, is not an enemy combatant. We emphasize the place ofal-Marri’s capture and detention only to establish that, asan alien lawfully residing in this country, he is protected bythe Due Process Clause and so cannot be seized and indefi-nitely detained by the military unless he qualifies as anenemy combatant. Second, we do not hold, in conflict withPadilla, that al-Marri cannot be detained in military cus-tody because the Government could criminally prosecutehim. Id. at 80-81. If al-Marri, like Padilla, did qualify as anenemy combatant, then the Government could choose toeither detain him or prosecute him (if it established that hewas not entitled to immunity from criminal prosecution asa lawful combatant). That said, given the dissent’s acknowl-edgment, id. at 82, that unlike Padilla, al-Marri has neverbeen “in a combat zone,” we do not see how his detention asan enemy combatant could achieve the asserted purpose ofsuch detention, i.e. “the prevention of return to the field ofbattle.” Id. at 81 (quoting Padilla, 423 F.3d at 394-95).

Padilla. In Quirin, which the Hamdi pluralitycharacterized as the “most apposite precedent,”542 U.S. at 523, the Supreme Court upheld thetreatment, as enemy combatants, of mendirected, outfitted, and paid by the German mil-itary to bring explosives into the United States todestroy American war industries during WorldWar II. The Quirin Court concluded that even apetitioner claiming American citizenship hadbeen properly classified as an enemy combatantbecause “[c]itizens who associate themselves withthe military arm of the enemy government, andwith its aid, guidance and direction enter thiscounty bent on hostile acts, are enemy belliger-ents [combatants] within the meaning of . . . thelaw of war.” Quirin, 317 U.S. at 37-38. The Courtcited the Hague Convention “which defines thepersons to whom belligerent [i.e. combatant]rights and duties attach,” id. at 30-31 n.7, in sup-port of its conclusion that the Quirin petitionersqualified as enemy combatants. Given the “dec-laration of war between the United States andthe German Reich,” id. at 21, and that all theQuirin petitioners, including one who claimedAmerican citizenship, were directed and paid bythe “military arm” of the German Reich, theCourt held that the law of war classified them asenemy belligerents (or combatants) and so theConstitution permitted subjecting them to mili-tary jurisdiction. Id. at 48.

Hamdi and Padilla ground their holdings onthis central teaching from Quirin, i.e., enemycombatant status rests on an individual’s affili-ation during wartime with the “military arm ofthe enemy government.” Quirin, 317 U.S. at 37-

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38; Hamdi, 542 U.S. at 519; see also Padilla, 423F.3d at 391. In Quirin that enemy governmentwas the German Reich; in Hamdi and Padilla, itwas the Taliban government of Afghanistan.

Hamdi and Padilla also rely on this principlefrom Quirin to distinguish (but not disavow) Mil-ligan. In Milligan, the Court rejected the Gov-ernment’s impassioned contention that apresidential order and the “laws and usages ofwar,” 71 U.S. at 121-22, justified exercising mil-itary jurisdiction over Lamdin Milligan, an Indi-ana resident, during the Civil War. TheGovernment alleged that Milligan had commu-nicated with the enemy, had conspired to “seizemunitions of war,” and had “join[ed] and aid[ed]. . . a secret” enemy organization “for the pur-pose of overthrowing the Government and dulyconstituted authorities of the United States.” Id.at 6. The Court recognized that Milligan hadcommitted “an enormous crime” during “a periodof war” and at a place “within . . . the theatre ofmilitary operations, and which had been and wasconstantly threatened to be invaded by theenemy.” Id. at 7, 130. But it found no support inthe “laws and usages of war” for subjecting Mil-ligan to military jurisdiction as a combatant, foralthough he was a “dangerous enem[y]” of thenation, he was a civilian, and had to be treatedas such. Id. at 121-22, 130.

Quirin, Hamdi, and Padilla all emphasize thatMilligan’s teaching—that our Constitution doesnot permit the Government to subject civilianswithin the United States to military jurisdic-tion—remains good law. The Quirin Courtexplained that while the petitioners before it

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were affiliated with the armed forces of an enemynation and so were enemy belligerents, Milliganwas a “non-belligerent” and so “not subject to thelaw of war.” 317 U.S. at 45. The Hamdi pluralitysimilarly took care to note that Milligan “turnedin large part on the fact that Milligan was not aprisoner of war” (i.e. combatant) and suggestedthat “[h]ad Milligan been captured while he wasassisting Confederate soldiers by carrying a rifleagainst Union troops on a Confederate battle-field, the holding of the Court might well havebeen different.” 542 U.S. at 522. And in Padilla,we reaffirmed that “Milligan does not extend toenemy combatants” and so “is inapposite herebecause Padilla, unlike Milligan, associated with,and has taken up arms against the forces of theUnited States on behalf of, an enemy of theUnited States.” 423 F.3d at 396-97. Thus,although Hamdi, Quirin, and Padilla distinguishMilligan, they recognize that its core holdingremains the law of the land. That is, civilianswithin this country (even “dangerous enemies”like Milligan who perpetrate “enormous crime[s]”on behalf of “secret” enemy organizations bent on“overthrowing the Government” of this country)may not be subjected to military control anddeprived of constitutional rights.11

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11 Because of this important principle, the SupremeCourt has hailed Milligan as “one of the great landmarks inth[e] Court’s history.” Reid, 354 U.S. at 30. Although theGovernment largely avoids Milligan, it implicitly acknowl-edges this point and so attempts to distinguish Milliganfrom the case at hand on the ground that Milligan was a cit-izen, and al-Marri an alien. In some circumstances the Con-stitution does afford aliens less protection than citizens. See,

In sum, the holdings of Hamdi and Padillashare two characteristics: (1) they look to law-of-war principles to determine who fits within the“legal category” of enemy combatant; and (2) fol-lowing the law of war, they rest enemy combat-ant status on affiliation with the military arm ofan enemy nation.

ii.

In view of the holdings in Hamdi and Padilla,we find it remarkable that the Government con-tends that they “compel the conclusion” that thePresident may detain al-Marri as an enemy com-batant. For unlike Hamdi and Padilla, al-Marri

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e.g., Hamdi, 542 U.S. at 558-59 (Scalia, J., dissenting) (sug-gesting that during war the constitutional rights of an“enemy alien,” whom the Supreme Court has defined as a“subject of a foreign state at war with the United States,”Eisentrager, 339 U.S. at 769 n.2 (internal quotation marksomitted), differ from those of a treasonous citizen); Verdugo-Urquidez, 494 U.S. at 274-75 (holding that the FourthAmendment does not apply to searches by United Statesagents of property owned by aliens in foreign countries). Butthe distinction between citizens and aliens provides no basisfor depriving an alien like al-Marri, lawfully resident withinthe United States and not the subject of an enemy nation, ofthose rights guaranteed by the Due Process Clause. Rather,the Supreme Court has repeatedly held that aliens situatedlike al-Marri have an unquestioned right to the due processof law. See Wong Wing, 163 U.S. at 238; see also Verdugo-Urquidez, 494 U.S. at 271; id. at 278 (Kennedy, J., concur-ring) (observing that “[a]ll would agree . . . that thedictates of the Due Process Clause of the Fifth Amendmentprotect” an alien lawfully within the United States). TheGovernment does not dispute or distinguish these cases; itsimply ignores them.

is not alleged to have been part of a Taliban unit,not alleged to have stood alongside the Talibanor the armed forces of any other enemy nation,not alleged to have been on the battlefield duringthe war in Afghanistan, not alleged to have evenbeen in Afghanistan during the armed conflictthere, and not alleged to have engaged in combatwith United States forces anywhere in the world.See Rapp Declaration (alleging none of thesefacts, but instead that “Al-Marri engaged in con-duct in preparation for acts of international ter-rorism intended to cause injury or adverse effectson the United States”).

In place of the “classic wartime detention” thatthe Government argued justified Hamdi’s deten-tion as an enemy combatant, see Br. of Respon-dents at 20-21, 27, Hamdi, 542 U.S. 507 (No.03-6696), or the “classic battlefield” detention itmaintained justified Padilla’s, see Opening Br.for the Appellant at 16, 20, 29, 51, Padilla, 432F.3d 386 (No. 05-6396), here the Governmentargues that al-Marri’s seizure and indefinite mil-itary detention in this country are justified“because he engaged in, and continues to pose avery real threat of carrying out, . . . acts ofinternational terrorism.” And instead of seekingjudicial deference to decisions of “military offi-cers who are engaged in the serious work of wag-ing battle,” Hamdi, 542 U.S. at 531-32, theGovernment asks us to defer to the “multi-agencyevaluation process” of government bureaucrats inWashington made eighteen months after al-Marriwas taken into custody. Neither the holding inHamdi nor that in Padilla supports the Govern-ment’s contentions here.

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In arguing to the contrary, the Governmentconfuses certain secondary arguments itadvanced in Hamdi and Padilla with the actualholdings in those cases. As discussed above, bothHamdi and Padilla upheld the President’sauthority pursuant to the AUMF to detain asenemy combatants individuals (1) who affiliatedwith and fought on behalf of Taliban governmentforces, (2) against the armed forces of the UnitedStates and its allies, (3) on the battlefield inAfghanistan. In both cases, however, the Gov-ernment also contended that the AUMF providedthe President with even broader authority to sub-ject to military detention, as enemy combatants,persons otherwise involved “in the global armedconflict against the al Qaeda terrorist network.”Br. of Respondents at 20-21, Hamdi, 542 U.S.507 (No. 03-6996); see Opening Br. for the Appel-lant at 17-18, Padilla, 423 F.3d 386 (No. 05-6396).

But neither the Supreme Court in Hamdi, northis court in Padilla, accepted the Government’sinvitation to fashion such a broad construction ofthe AUMF. Instead, the Hamdi plurality empha-sized the narrowness of its holding, id. at 509,516, 517, and the “limited category” of individu-als controlled by that holding, id. at 518. InPadilla, we similarly saw no need to embrace abroader construction of the AUMF than thatadopted by the Supreme Court in Hamdi. Indeed,the Government itself principally argued thatPadilla was an enemy combatant because he, likeHamdi, “engaged in armed conflict” alongside theTaliban “against our forces in Afghanistan.” See

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Opening Br. for the Appellant at 22-23, 27,Padilla, 423 F.3d 386 (No. 05-6396).12

Thus, the Government is mistaken in its rep-resentation that Hamdi and Padilla “recognized”“[t]he President’s authority to detain ‘enemycombatants’ during the current conflict with alQaeda.” No precedent recognizes any suchauthority. Hamdi and Padilla evidence no sym-pathy for the view that the AUMF permits indef-inite military detention beyond the “limitedcategory” of people covered by the “narrow cir-cumstances” of those cases. Therefore the Gov-ernment’s primary argument—that Hamdi andPadilla “compel the conclusion” that the AUMFauthorizes the President “to detain al-Marri asan enemy combatant”—fails.

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12 In doing so, the Government acknowledged, id. at 29-30, our distinguished colleague Judge Wilkinson’s statementthat “[t]o compare [Hamdi’s] battlefield capture to thedomestic arrest in Padilla v. Rumsfeld is to compare applesand oranges,” Hamdi v. Rumsfeld, 337 F.3d 335, 344 (4thCir. 2003) (Wilkinson, J., concurring in the denial of rehear-ing en banc), but explained that Judge Wilkinson’s obser-vation came before the Government had proffered anyevidence that Padilla had carried arms alongside the Tal-iban against United States armed forces during the conflictin Afghanistan. In other words, at the time Judge Wilkinsondifferentiated Hamdi from Padilla, the Government’s alle-gations against Padilla mirrored its allegations against al-Marri here—that he had associated with al Qaeda andengaged in conduct in preparation for acts of terrorism. Weagree with Judge Wilkinson’s characterization: to compareHamdi’s battlefield capture to the domestic arrest of al-Marri is indeed “to compare apples and oranges.” Id.

3.

The Government offers no other legal prece-dent, rationale, or authority justifying its posi-tion that the AUMF empowers the President todetain al-Marri as an enemy combatant. TheHamdi plurality, however, noted that because ithad not “elaborated” on “[t]he legal category ofenemy combatant,” “[t]he permissible bounds ofthe category will be defined by the lower courtsas subsequent cases are presented to them.”Hamdi, 542 U.S. at 522 n.1. As a “lower court” inthis “subsequent case[ ],” we have searchedextensively for authority that would support theGovernment’s contention that al-Marri fitswithin the “permissible bounds” of “the legal cat-egory of enemy combatant.” As explained below,we have found none. Certainly, the SupremeCourt’s most recent terrorism case, Hamdan, 126S. Ct. 2749, and the law-of-war principles it iden-tifies provide no support for that contention.Moreover, contrary to the Government’s apparentbelief, no precedent and nothing in the “legalbackground against which the AUMF wasenacted” permits a person to be classified as anenemy combatant because of his criminal conducton behalf of an enemy organization. And, theAUMF itself neither classifies certain civilians asenemy combatants, nor otherwise authorizes thePresident to subject civilians to indefinite mili-tary detention.

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I.

Rather than supporting the Government’s posi-tion, the Supreme Court’s most recent terrorismcase provides an additional reason for rejectingthe contention that al-Marri is an enemy com-batant. In Hamdan, the Court held that becausethe conflict between the United States and alQaeda in Afghanistan is not “between nations,” itis a “ ‘conflict not of an international character’ ”—and so is governed by Common Article 3 of theGeneva Conventions. See 126 S. Ct. at 2795; seealso id. at 2802 (Kennedy, J., concurring). Com-mon Article 3 and other Geneva Convention pro-visions applying to non-international conflicts (incontrast to those applying to international con-flicts, such as that with Afghanistan’s Talibangovernment) simply do not recognize the “legalcategory” of enemy combatant. See Third GenevaConvention, art. 3, 6 U.S.T. at 3318. As theInternational Committee of the Red Cross—theofficial codifier of the Geneva Conventions—explains, “an ‘enemy combatant’ is a person who,either lawfully or unlawfully, engages in hostil-ities for the opposing side in an internationalarmed conflict;” in contrast, “[i]n non-interna-tional armed conflict combatant status does notexist.” Int’l Comm. of the Red Cross, OfficialStatement: The Relevance of IHL in the Contextof Terrorism, at 1, 3 (Feb. 21, 2005), http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/terror-ism-ihl-210705 (emphasis added).13

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13 Notwithstanding this principle, we recognize thatsome commentators have suggested that “for such time asthey take a direct part in hostilities,” participants in non-

Perhaps for this reason, the Governmentignores Hamdan’s holding that the conflict withal Qaeda in Afghanistan is a non-internationalconflict, and ignores the fact that in such con-flicts the “legal category” of enemy combatantdoes not exist. Indeed, the Government’s soleacknowledgment of Hamdan in its appellate briefis a short footnote, in which it asserts that “theCourt took it as a given that Hamdan was subjectto detention as an enemy combatant during ongo-ing hostilities.” The weakness of this response isapparent. Not only does it avoid the holding inHamdan that the conflict between the UnitedStates and al Qaeda is a non-international con-flict, but also it suggests that the Supreme Courtapproved Hamdan’s detention when the legality

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international armed conflicts may, as a matter of customaryinternational law, be placed in the formal legal category of“enemy combatant.” See,e.g., Curtis A. Bradley & Jack L.Goldsmith, Congressional Authorization and the War on Ter-rorism, 118 Harv. L. Rev. 2047, 2115 & n.304 (2005) (inter-nal quotation marks omitted). No precedent from theSupreme Court or this court endorses this view, and theGovernment itself has not advanced such an argument. Thismay be because even were a court to follow this approach insome cases, it would not assist the Government here. For theGovernment has proffered no evidence that al-Marri hastaken a “direct part in hostilities.” Moreover, the UnitedStates has elsewhere adopted a formal treaty understandingof the meaning of the term “direct part in hostilities,” whichplainly excludes al-Marri. See Message from the Presidentof the United States Transmitting Two Optional Protocols tothe Convention on the Rights of the Child, S. Treaty Doc.No. 106-37, at VII (2000) (distinguishing between “imme-diate and actual action on the battlefield” and “indirect par-ticipation,” including gathering and transmitting militaryinformation, weapons, and supplies).

of that detention was not before the Court, and infact, the legality of the detention of those likeHamdan, captured and detained in the conflictwith al Qaeda outside the United States, is stillbeing litigated. See, e.g., Boumediene, 476 F.3d981.

Moreover, even were the Supreme Court ulti-mately to approve the detention of Hamdan andthose like him, that would not bolster the Gov-ernment’s position at all in the case at hand.14

This is so because, since the legal status of“enemy combatant” does not exist in non-inter-national conflicts, the law of war leaves thedetention of persons in such conflicts to theapplicable law of the detaining country. In al-Marri’s case, the applicable law is our Constitu-tion. Thus, even if the Supreme Court shouldhold that the Government may detain indefi-nitely Hamdan and others like him, who werecaptured outside the United States and lacked

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14 The Supreme Court has yet to hold that there is anon-international armed conflict between the United Statesand al Qaeda within the United States. Non-internationalconflicts “occur[ ] in the territory of one of the High Con-tracting Parties,” Hamdan, 126 S. Ct. at 2795 (quoting ThirdGeneva Convention, 6 U.S.T. at 3318) (emphasis added)—and Hamdan only found there to be a conflict between theUnited States and al Qaeda in Afghanistan. Of course, al-Marri is not a participant in any conflict involving theUnited States in Afghanistan. Although the Governmentalleges that al-Marri attended an al Qaeda training camp inAfghanistan years before September 11th, it has profferedno evidence that al-Marri was involved in the conflictbetween the United States and al Qaeda in Afghanistan—nor could it, for al-Marri has not been in Afghanistan at anypoint during that conflict.

substantial and voluntary connections to thiscountry, that would provide no support forapproving al-Marri’s military detention. For notonly was al-Marri seized and detained within theUnited States, he also has substantial connec-tions to the United States, and so plainly is pro-tected by the Due Process Clause.

ii.

The core assumption underlying the Govern-ment’s position, notwithstanding Hamdi, Padilla,Quirin, Milligan, and Hamdan, seems to be thatpersons lawfully within this country, entitled tothe protections of our Constitution, lose theircivilian status and become “enemy combatants” ifthey have allegedly engaged in criminal conducton behalf of an organization seeking to harm theUnited States. Of course, a person who commitsa crime should be punished, but when a civilianprotected by the Due Process Clause commits acrime he is subject to charge, trial, and punish-ment in a civilian court, not to seizure and con-finement by military authorities.

We recognize the understandable instincts ofthose who wish to treat domestic terrorists as“combatants” in a “global war on terror.” Alle-gations of criminal activity in association with aterrorist organization, however, do not permitthe Government to transform a civilian into anenemy combatant subject to indefinite militarydetention, any more than allegations of murderin association with others while in military ser-vice permit the Government to transform a civil-ian into a soldier subject to trial by court

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martial. See United States ex rel. Toth v. Quarles,350 U.S. 11, 23 (1955) (holding that ex-service-men, “like other civilians, are entitled to havethe benefit of safeguards afforded those tried inthe regular courts authorized by Article III of theConstitution”).

To be sure, enemy combatants may commitcrimes just as civilians may. When an enemycombatant violates the law of war, that conductwill render the person an “unlawful” enemy com-batant, subject not only to detention but also tomilitary trial and punishment. Quirin, 317 U.S.at 31. But merely engaging in unlawful behaviordoes not make one an enemy combatant. Quirinwell illustrates this point. The Quirin petitionerswere first enemy combatants—associating them-selves with the military arm of the German gov-ernment with which the United States was atwar. They became unlawful enemy combatantswhen they violated the laws of war by “withoutuniform com[ing] secretly through the lines forthe purpose of waging war.” Id. By doing so, inaddition to being subject to military detention forthe duration of the conflict as enemy combatants,they also became “subject to trial and punish-ment by military tribunals for acts which rendertheir belligerency illegal.” Id. Had the Quirinpetitioners never “secretly and without uniform”passed our “military lines,” id., they still wouldhave been enemy combatants, subject to militarydetention, but would not have been unlawfulenemy combatants subject to military trial andpunishment.

Neither Quirin nor any other precedent evensuggests, as the Government seems to believe,

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that individuals with constitutional rights, unaf-filiated with the military arm of any enemy gov-ernment, can be subjected to military jurisdictionand deprived of those rights solely on the basis oftheir conduct on behalf of an enemy organiza-tion.15 In fact, Milligan rejected the Govern-

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15 The distinction between organizations and nations isnot without rationale. The law of war refuses to classify per-sons affiliated with terrorist organizations as enemy com-batants for fear that doing so would immunize them fromprosecution and punishment by civilian authorities in thecapturing country. See e.g., Message from the President ofthe United States Transmitting the Protocol II Additional tothe 1949 Geneva Conventions, and Relating to the Protec-tion of Victims of Noninternational Armed Conflicts, S.Treaty Doc. No. 100-2, at IV (1987) (explaining PresidentReagan’s recommendation against ratifying a treaty provi-sion that “would grant combatant status to irregular forces”and so “give recognition and protection to terrorist groups”).Moreover, a rule permitting indefinite military detention as“enemy combatants” of members of an “armed” organization,even one “seek[ing] . . . to . . . overthrow” a government, inaddition to being contrary to controlling precedent, Milligan,71 U.S. at 130, could well endanger citizens of this countryor our allies. For example, another nation, purportedly fol-lowing this rationale, could proclaim a radical environ-mental organization to be a terrorist group, and subjectAmerican members of the organization traveling in thatnation to indefinite military detention.

The dissent properly recognizes the distinction betweenan organization and a nation’s armed forces, acknowledgingthat an allegation of “mere association” with an organiza-tion, including al Qaeda, does not necessarily establishenemy combatant status permitting detention under theAUMF. Post at n.3. The dissent suggests, however, that ifthe Government alleges that a person affiliates with anorganization and commits criminal acts with the “purpose of. . . facilitating terrorist activities,” id. (quoting Rapp Dec-

ment’s attempt to do just this. There, the Courtacknowledged that Milligan’s conduct—not “mereassociation” with, cf. post at n.3, but also “joiningand aiding” a “secret political organization,armed to oppose the laws, and seek[ing] bystealthy means to introduce the enemies of thecountry into peaceful communities, there to . . .overthrow the power of the United States”—madehim and his co-conspirators “dangerous enemiesto their country.” 71 U.S. at 6, 130. But the Gov-ernment did not allege that Milligan took ordersfrom any enemy government or took up armsagainst this country on the battlefield. And sothe Court prohibited the Government from sub-jecting Milligan to military jurisdiction for his“enormous crime.” Id.

Although Milligan was an “enem[y]” of thecountry and associated with an organizationseeking to “overthrow[ ] the Government” of thiscountry, he was still a civilian. Id. Milligan’s con-duct mirrors the Government’s allegationsagainst al-Marri. If the Government’s allegationsare true, like Milligan, al-Marri is deplorable,criminal, and potentially dangerous, but like Mil-ligan he is a civilian nonetheless.16

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laration (emphasis added)), that would qualify him forenemy combatant status, permitting military detentionunder the AUMF. But the Hamdi plurality outlined a pro-cedure to verify an individual’s status, not to determinewhether he harbored a particular purpose or intent. In thiscountry, the only appropriate way to determine whether aperson can be imprisoned for harboring a particular purposeor intent is through the criminal process.

16 The Government’s treatment of al-Marri, i.e. sub-jecting him to military detention, which the Government

iii.

Finally, we note that the AUMF itself containsnothing that transforms a civilian into a com-

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insists “is not ‘punishment,’ ” is at odds with the Govern-ment’s repeated recognition that criminal terrorist conductby aliens in this country merits punishment by a civiliancourt, not indefinite military detention as an enemy com-batant. See, e.g., United States v. Abdi, 463 F.3d 547, 550(6th Cir. 2006) (civilian prosecution of suspected al-Qaedaterrorist who allegedly “indicated a desire to ‘shoot up’ aColumbus shopping mall with an AK-47”); United States v.Moussaoui, 382 F.3d 453 (4th Cir. 2004) (civilian prosecu-tion of surviving al Qaeda conspirator involved in theSeptember 11th attacks); United States v. Reid, 369 F.3d619, 619-20 (1st Cir. 2004) (civilian prosecution of terroristallied with Bin Laden who attempted to destroy airplanewith explosives); United States v. Goba, 240 F. Supp. 2d 242,244 (W.D.N.Y. 2003) (civilian prosecution of associates of alQaeda, including those who met with Bin Laden and trainedin terrorist camps in Afghanistan). Moreover, the Govern-ment is now prosecuting Jose Padilla in civilian court for hiscrimes. This practice is hardly new. Even the civilian co-con-spirators of the Quirin petitioners were tried for theircrimes in civilian courts. See Cramer v. United States, 325U.S. 1 (1945); United States v. Haupt, 136 F.2d 661 (7th Cir.1943).

The Government’s treatment of others renders its decisionto halt al-Marri’s criminal prosecution—on the eve of a pre-trial hearing on a suppression motion—puzzling at best. Al-Marri contends that the Government has subjected him toindefinite military detention, rather than see his criminalprosecution to the end, in order to interrogate him withoutthe strictures of criminal process. We trust that this is notso, for such a stratagem would contravene Hamdi’s injunc-tion that “indefinite detention for the purpose of interro-gation is not authorized.” 542 U.S. at 521. We note, however,that not only has the Government offered no other expla-nation for abandoning al-Marri’s prosecution, it has even

batant subject to indefinite military detention.Indeed, the AUMF contains only a broad grant ofwar powers and lacks any specific languageauthorizing detention. For this reason, theHamdi plurality explained that its opinion “onlyfinds legislative authority to detain under theAUMF once it is sufficiently clear that the indi-vidual is, in fact, an enemy combatant.” Hamdi,542 U.S. at 523 (emphasis added). Although themilitary detention of enemy combatants likeHamdi is certainly “a fundamental incident ofwaging war,” id. at 519, the military detention ofcivilians like al-Marri just as certainly is not.Notably, even the Government does not contendthat the AUMF transforms civilians into com-batants or authorizes the President to classifycivilians as enemy combatants and so detainthem in military custody.

Moreover, assuming the Constitution permittedCongress to grant the President such an awe-some and unprecedented power, if Congressintended to grant this authority it could andwould have said so explicitly. The AUMF lacksthe particularly clear statement from Congressthat would, at a minimum, be necessary to autho-rize the classification and indefinite military

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propounded an affidavit in support of al-Marri’s continuedmilitary detention stating that he “possesses information ofhigh intelligence value.” See Rapp Declaration. Moreover,former Attorney General John Ashcroft has explained thatthe Government decided to declare al-Marri an “enemy com-batant” only after he became a “hard case” by “reject[ing]numerous offers to improve his lot by . . . providing infor-mation.” John Ashcroft, Never Again: Securing America andRestoring Justice 168-69 (2006).

detention of civilians as “enemy combatants.”See, e.g., Greene v. McElroy, 360 U.S. 474, 508(1959) (rejecting Government argument thatExecutive Orders and statutes permitted depri-vation of liberty rights absent “explicit autho-rization” in them); Duncan v. Kahanamoku, 327U.S. 304, 324 (1946) (rejecting Government argu-ment that statute authorized trial of civilians bymilitary tribunals because Congress could nothave intended “to exceed the boundaries betweenmilitary and civilian power, in which our peoplehave always believed”); Ex Parte Endo, 323 U.S.283, 300 (1944) (rejecting Government argumentthat a “wartime” executive order and statute per-mitted detention of citizen of Japanese heritagewhen neither “use[d] the language of detention”);Brown v. United States, 12 U.S. (8 Cranch) 110,128-29 (1814) (rejecting Government argumentthat declaration of war authorized confiscation ofenemy property because it did not clearly“declare[ ]” the legislature’s “will”). We areexceedingly reluctant to infer a grant of author-ity that is so far afield from anything recognizedby precedent or law-of-war principles, especiallygiven the serious constitutional concerns it wouldraise.

Furthermore, shortly after Congress enactedthe AUMF, it enacted another statute that didexplicitly authorize the President to arrest anddetain “terrorist aliens” living within the UnitedStates believed to have come here to perpetrateacts of terrorism. See Uniting and StrengtheningAmerica by Providing Appropriate ToolsRequired to Intercept and Obstruct Terrorism(USA PATRIOT ACT) Act of 2001 (hereinafter

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“Patriot Act”), Pub. L. No. 107-56, 115 Stat. 272.However, that statute only authorizes detentionfor a limited time pending deportation or trial,pursuant to civilian law enforcement processes,and accompanied by careful congressional over-sight. See infra Section III.C.1. The explicitauthorization for limited detention and criminalprocess in civilian courts in the Patriot Act pro-vides still another reason why we cannot assumethat Congress silently empowered the Presidentin the AUMF to order the indefinite militarydetention without any criminal process of civilian“terrorist aliens” as “enemy combatants.”

We note that this does not mean that we acceptal-Marri’s contention that the Patriot Act affir-matively prohibits the detention of all suspectedterrorist aliens within this country as enemycombatants. Plainly, the Patriot Act does noteliminate the statutory authority provided thePresident in the AUMF to detain individuals whofit within the “legal category” of enemy combat-ant; thus, if an alien “qualif[ies]” as an enemycombatant, then the AUMF authorizes his deten-tion. Hamdi, 542 U.S. at 516. But if there wereany conflict between the Patriot Act and theAUMF as to the legality of the detention of ter-rorist alien civilians within the United States,we would have to give precedence to the PatriotAct—for while the Patriot Act’s explicit and spe-cific focus is on detention of terrorist alienswithin the United States, the AUMF lacks anylanguage permitting such detention. See Hamdi,542 U.S. at 519. And the Supreme Court hasinstructed that “a more specific statute will begiven precedence over a more general one,

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regardless of their temporal sequence.” Busic v.United States, 446 U.S. 398, 406 (1980); see alsoEdmond v. United States, 520 U.S. 651, 657(1997).

In sum, the Government has not offered, andalthough we have exhaustively searched, we havenot found, any authority that permits us to holdthat the AUMF empowers the president to detainal-Marri as an enemy combatant. If the Govern-ment’s allegations are true, and we assume theyare for present purposes, al-Marri, like Milligan,is a dangerous enemy of this nation who has com-mitted serious crimes and associated with asecret enemy organization that has engaged inhostilities against us. But, like Milligan, al-Marriis still a civilian: he does not fit within the “per-missible bounds of” “[t]he legal category of enemycombatant.” Hamdi, 542 U.S. at 522 n.1. There-fore, the AUMF provides the President no statu-tory authority to order the military to seize andindefinitely detain al-Marri.

C.

Accordingly, we turn to the Government’s finalcontention. The Government summarily arguesthat even if the AUMF does not authorize al-Marri’s seizure and indefinite detention as anenemy combatant, the President has “inherentconstitutional authority” to order the military toseize and detain al-Marri. The Government main-tains that the President’s “war-making powers”granted him by Article II “include the authorityto capture and detain individuals involved inhostilities against the United States.” In other

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words, according to the Government, the Presi-dent has “inherent” authority to subject personslegally residing in this country and protected byour Constitution to military arrest and detention,without the benefit of any criminal process, if thePresident believes these individuals have“engaged in conduct in preparation for acts ofinternational terrorism.” See Rapp Declaration.This is a breathtaking claim, for the Governmentnowhere represents that this “inherent” power toorder indefinite military detention extends onlyto aliens or only to those who “qualify” within the“legal category” of enemy combatants.

To assess claims of presidential power, theSupreme Court has long recognized, as JusticeKennedy stated most recently, that courts look tothe “framework” set forth by Justice Jackson inYoungstown Sheet & Tube Co. v. Sawyer, 343U.S. 579, 635-38 (1952) (Jackson, J., concurring).See Hamdan, 126 S. Ct. at 2800 (Kennedy, J.,concurring). Justice Jackson explained that“Presidential powers are not fixed but fluctuate,depending upon their disjunction or conjunctionwith those of Congress.” Youngstown, 343 U.S. at635 (Jackson, J., concurring). “When the Presi-dent acts pursuant to an express or impliedauthorization of Congress, his authority is at itsmaximum,” id., but “[w]hen the President takesmeasures incompatible with the expressed orimplied will of Congress, his power is at its low-est ebb,” id. at 637. Hence, to evaluate the Pres-ident’s constitutional claim we must first look tothe “expressed or implied will of Congress” as todetention of aliens captured within the UnitedStates alleged to be engaged in terrorist activity.

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1.

In fact, in the Patriot Act, Congress carefullystated how it wished the Government to handlealiens believed to be terrorists who were seizedand held within the United States. In contrast tothe AUMF, which is silent on the detention ofasserted alien terrorists captured and heldwithin the United States, the Patriot Act,enacted shortly after the AUMF, provides theExecutive with broad powers to deal with “ter-rorist aliens.” But the Patriot Act explicitly pro-hibits their indefinite detention.

Section 412 of the Patriot Act, entitled “Manda-tory Detention of Suspected Terrorists,” permitsthe short-term “[d]etention of [t]errorist [a]liens.”Patriot Act § 412(a). The statute authorizes theAttorney General to detain any alien whom he“has reasonable grounds to believe” is “describedin” certain sections of the United States Code. Id.These code sections, in turn, “describe” alienswho: (1) “seek[ ] to enter the United States” to“violate any law of the United States relating toespionage or sabotage” or to use “force, violence,or other unlawful means” in opposition to thegovernment of the United States; or (2) have“engaged in a terrorist activity;” or (3) the Attor-ney General reasonably believes are “likely toengage after entry in any terrorist activity,” have“incited terrorist activity,” are “representa-tive[s]” or “member[s]” of a “terrorist organiza-tion” or are “representative[s]” of a “group thatendorses or espouses terrorist activity,” or have“received military-type training” from a terroristorganization. 8 U.S.C.A. § 1182(a)(3)(A) and (B)

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(West 2007); see also 8 U.S.C. §§ 1227(a)(4)(A)(I),(iii); 1227(a)(4)(B) (West 2007). In addition, thePatriot Act authorizes the Attorney General todetain any other alien who “is engaged in anyother activity that endangers the national secu-rity of the United States.” Patriot Act § 412(a). Inparticular, the Patriot Act permits the AttorneyGeneral to “take into custody” any “terroristaliens” based only on the Attorney General’s“belie[fs]” as to the aliens’ threat, with no processor evidentiary hearing, and judicial review onlythrough petition for habeas corpus. Id. § 412(a).

Recognizing the breadth of this grant of power,however, Congress also imposed strict limits inthe Patriot Act on the duration of the detentionof such “terrorist aliens” within the UnitedStates. Thus, the Patriot Act expressly prohibitsunlimited “indefinite detention;” instead itrequires the Attorney General either to begin“removal proceedings” or to “charge the alienwith a criminal offense” “not later than 7 daysafter the commencement of such detention.” Id.§ 412(a). If a terrorist alien’s removal “is unlikelyfor the reasonably foreseeable future,” he “maybe detained for additional periods of up to sixmonths” if his release “will threaten the nationalsecurity of the United States.” Id. But no provi-sion of the Patriot Act allows for unlimited indef-inite detention. Moreover, the Attorney Generalmust provide the legislature with reports on theuse of this detention authority every six months,which must include the number of aliensdetained, the grounds for their detention, and thelength of the detention. Id. § 412(c).

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Therefore, the Patriot Act establishes a specificmethod for the Government to detain aliens affil-iated with terrorist organizations, who the Gov-ernment believes have come to the United Statesto endanger our national security, conduct espi-onage and sabotage, use force and violence tooverthrow the government, engage in terroristactivity, or even who are believed likely toengage in any terrorist activity. Congress couldnot have better described the Government’s alle-gations against al-Marri—and Congress decreedthat individuals so described are not to bedetained indefinitely but only for a limited time,and by civilian authorities, prior to deportationor criminal prosecution.

In sum, Congress has carefully prescribed theprocess by which it wishes to permit detention of“terrorist aliens” within the United States, andhas expressly prohibited the indefinite detentionthe President seeks here. The Government’sargument that the President may indefinitelydetain al-Marri is thus contrary to Congress’sexpressed will. “When the President takes mea-sures incompatible with the expressed or impliedwill of Congress, his power is at its lowest ebb,for then he can rely only upon his own constitu-tional powers minus any constitutional powers ofCongress over the matter.” Youngstown, 343 U.S.at 637 (Jackson, J., concurring). As the SupremeCourt explained just last term, “[w]hether or notthe President has independent power . . . hemay not disregard limitations that Congress has,in proper exercise of its own war powers, placedon his powers.” Hamdan, 126 S. Ct. at 2774 n.23(citing Youngstown, 343 U.S. at 637 (Jackson, J.,

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concurring)). In such cases, “Presidential claim[s]”to power “must be scrutinized with caution, forwhat is at stake is the equilibrium established byour constitutional system.” Youngstown, 343 U.S.at 638 (Jackson, J., concurring).

2.

In light of the Patriot Act, therefore, we must“scrutinize[ ] with caution,” id., the Executive’scontention that the Constitution grants the Pres-ident the power to capture and subject to indefi-nite military detention certain civilians lawfullyresiding within the United States. The Govern-ment nowhere suggests that the President’sinherent constitutional power to detain does notextend to American citizens. Yet it grounds itsargument that the President has constitutionalpower to detain al-Marri on his alien status. TheGovernment apparently maintains that alien sta-tus eliminates the due process protection appli-cable to al-Marri, and for this reason permits thePresident to exercise special “peak” authorityover him. The Government can so contend onlyby both ignoring the undisputed and relying onthe inapposite.

It is undisputed that al-Marri had been legallyadmitted to the United States, attending anAmerican university from which he had earlierreceived an undergraduate degree, and legallyresiding here (with his family) for several monthsbefore the Government arrested him at his homein Peoria. The Government’s refusal to acknowl-edge these undisputed facts dooms its contentionthat al-Marri’s status as an alien somehow pro-

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vides the President with special “peak” authorityto deprive al-Marri of constitutional rights. For,as we have noted within, the Supreme Court hasrepeatedly and expressly held that aliens like al-Marri, i.e. those lawfully admitted into theUnited States who have “developed substantialconnections with this country,” are entitled tothe Constitution’s due process protections. Ver-dugo-Urquidez, 494 U.S. at 271; see Kwong HaiChew, 344 U.S. at 596; Wong Wing, 163 U.S. at238. No case suggests that the President, by fiat,can eliminate the due process rights of such analien.

Without even a mention of these undisputedfacts and controlling legal principles, the Gov-ernment relies on two sorts of inapposite cases asassertedly establishing special presidentialauthority over aliens like al-Marri. The first ofthese, Eisentrager, 339 U.S. at 769 n.2, andLudecke, 335 U.S. at 161-62, involves “enemyaliens.” In those cases, the Supreme Court specif-ically defined “enemy aliens,” but the Court didnot define them as aliens who commit crimesagainst our country and so are enemies, as theGovernment seems to suggest. Rather, theSupreme Court defined “enemy aliens” as “sub-ject[s] of a foreign state at war with the UnitedStates.” Eisentrager, 339 U.S. at 769 n.2. Al-Marri plainly is not the “subject of a foreign stateat war with the United States” and so is not an“enemy alien,” but rather a citizen of Qatar, acountry with which the United States hasfriendly relations. Thus Eisentrager and Ludeckeprovide no basis for asserting authority over al-Marri. In fact, elsewhere in its brief the Gov-

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ernment concedes, as it must, that Eisentragerand Ludecke do not “have direct application” toal-Marri.

The other inapposite cases on which the Gov-ernment relies involve congressional authorityover aliens stemming from Congress’s power overnaturalization and immigration—not some spe-cial “inherent” constitutional authority enjoyedby the President over aliens. See Mathews v.Diaz, 426 U.S. 67, 79-80 (1976); Harisiades v.Shaughnessy, 342 U.S. 580, 588-91 (1952). Thesecases do not speak to the powers of the Presidentacting alone—let alone contrary to an Act ofCongress—and certainly do not suggest that thePresident has the power to subject to indefinitemilitary detention an alien lawfully residing inthis country, like al-Marri.

In sum, al-Marri is not a subject of a countrywith which the United States is at war, and hedid not illegally enter the United States nor is healleged to have committed any other immigrationviolation. Rather, after lawfully entering theUnited States, al-Marri “developed substantialconnections with this country,” Verdugo-Urquidez, 494 U.S. at 271, and so his status asan alien neither eliminates due process rights,nor provides the President with extraordinarypowers to subject al-Marri to seizure and indefi-nite detention by the military. The President’sconstitutional powers do not allow him to orderthe military to seize and detain indefinitely al-Marri without criminal process any more thanthey permit the President to order the military toseize and detain, without criminal process, otherterrorists within the United States, like the

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Unabomber or the perpetrators of the OklahomaCity bombing.

3.

In light of al-Marri’s due process rights underour Constitution and Congress’s express prohi-bition in the Patriot Act on the indefinite deten-tion of those civilians arrested as “terroristaliens” within this country, we can only concludethat in the case at hand, the President claimspower that far exceeds that granted him by theConstitution.17

We do not question the President’s war-timeauthority over enemy combatants; but absentsuspension of the writ of habeas corpus or dec-laration of martial law, the Constitution simplydoes not provide the President the power to exer-cise military authority over civilians within theUnited States. See Toth, 350 U.S. at 14 (“[A]sser-tion of military authority over civilians cannotrest on the President’s power as commander-in-chief, or on any theory of martial law.”). ThePresident cannot eliminate constitutional pro-tections with the stroke of a pen by proclaiminga civilian, even a criminal civilian, an enemycombatant subject to indefinite military deten-tion. Put simply, the Constitution does not allow

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17 Because Congress has not empowered the Presidentto subject civilian alien terrorists within the United Statesto indefinite military detention, see supra Part II, we neednot, and do not, determine whether such a grant of author-ity would violate the Constitution. Rather, we simply holdthat the Constitution does not provide the President actingalone with this authority.

the President to order the military to seize civil-ians residing within the United States anddetain them indefinitely without criminal pro-cess, and this is so even if he calls them “enemycombatants.”

A “well-established purpose of the Founders”was “to keep the military strictly within itsproper sphere, subordinate to civil authority.”Reid, 354 U.S. at 30. In the Declaration of Inde-pendence our forefathers lodged the complaintthat the King of Great Britain had “affected torender the Military independent of and superiorto the Civil power” and objected that the Kinghad “depriv[ed] us in many cases, of the benefitsof Trial by Jury.” The Declaration of Indepen-dence paras. 14, 20 (U.S. 1776). A resolute con-viction that civilian authority should govern themilitary animated the framing of the Constitu-tion. As Alexander Hamilton, no foe of Executivepower, observed, the President’s Commander-in-Chief powers “amount to nothing more than thesupreme command and direction of the militaryand naval forces.” The Federalist No. 69, at 386(Alexander Hamilton) (Clinton Rossiter ed.,1961). “That military powers of the Commanderin Chief were not to supersede representativegovernment of internal affairs seems obviousfrom the Constitution and from elementaryAmerican history.” Youngstown, 343 U.S. at 644(Jackson, J., concurring) (emphasis added). Forthis reason, the Supreme Court rejected the Pres-ident’s claim to “inherent power” to use the mil-itary even to seize property within the UnitedStates, despite the Government’s argument thatthe refusal would “endanger the well-being and

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safety of the Nation.” Id. at 584 (majority opin-ion).

Of course, this does not mean that the Presi-dent lacks power to protect our national interestsand defend our people, only that in doing so hemust abide by the Constitution. We understandand do not in any way minimize the grave threatinternational terrorism poses to our country andour national security. But as Milligan teaches,“the government, within the Constitution, has allthe powers granted to it, which are necessary topreserve its existence.” Milligan, 71 U.S. at 121.Those words resound as clearly in the twenty-first century as they did in the nineteenth.

Thus, the President plainly has plenaryauthority to deploy our military against terroristenemies overseas. See Curtiss-Wright, 299 U.S.at 319-20; see also Eisentrager, 339 U.S. at 789.Similarly, the Government remains free todefend our country against terrorist enemieswithin, using all the considerable powers “thewell-stocked statutory arsenal” of domestic lawaffords. Hamdi, 542 U.S. at 547 (Souter, J., con-curring in the judgment) (citing numerous fed-eral statutes criminalizing terrorist acts).Civilian law enforcement officers may always usedeadly force whenever reasonable. See Scott v.Harris, 127 S. Ct. 1769, 1776-78 (2007). Fur-thermore, in the wake of September 11th,Congress has specifically authorized the Presi-dent to deploy the armed forces at home to pro-tect the country in the event of actual “terroristattack[s] or incident[s]” within the United Statesmeeting certain conditions. See 10 U.S.C.A.§ 333(a)(A) (2007) (amending the Insurrection Act

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to provide the President with this authority,notwithstanding the Posse Comitatus Act, 18U.S.C. § 1385).

But in this nation, military control cannot sub-sume the constitutional rights of civilians.Rather, the Supreme Court has repeatedly cata-logued our country’s “deeply rooted and ancientopposition . . . to the extension of military con-trol over civilians.” Reid, 354 U.S. at 33; see alsoLaird v. Tatum, 408 U.S. 1, 15 (1972) (Burger,C.J.) (recognizing “a traditional and strong resis-tance of Americans to any military intrusion intocivilian affairs” that “has deep roots in our his-tory and found early expression . . . in the con-stitutional provisions for civilian control of themilitary”). The Court has specifically cautionedagainst “break[ing] faith with this Nation’s tra-dition”—“firmly embodied in the Constitution”—“of keeping military power subservient to civilianauthority.” Reid, 354 U.S. at 40. When the Courtwrote these words in 1957, it explained that“[t]he country ha[d] remained true to that faithfor almost one hundred seventy years.” Id.Another half century has passed but the neces-sity of “remain[ing] true to that faith” remains asimportant today as it was at our founding.

The President has cautioned us that “[t]he waron terror we fight today is a generational strug-gle that will continue long after you and I haveturned our duties over to others.” Pres. GeorgeW. Bush, State of the Union Address (Jan. 23,2007). Unlike detention for the duration of a tra-ditional armed conflict between nations, deten-tion for the length of a “war on terror” has nobounds. Justice O’Connor observed in Hamdi

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that “[i]f the practical circumstances of a givenconflict are entirely unlike those of the conflictsthat informed the development of the law ofwar,” the understanding that combatants can bedetained “for the duration of the relevant con-flict” “may unravel.” 542 U.S. at 521. If the indef-inite military detention of an actual combatant inthis new type of conflict might cause the threadof our understandings to “unravel,” the indefinitemilitary detention of a civilian like al-Marriwould shred those understandings apart.

In an address to Congress at the outset of theCivil War, President Lincoln defended his emer-gency suspension of the writ of habeas corpus toprotect Union troops moving to defend the Capi-tal. Lincoln famously asked: “[A]re all the laws,but one, to go unexecuted, and the governmentitself to go to pieces, lest that one be violated?”Abraham Lincoln, Message to Congress in Spe-cial Session (July 4, 1861), in Abraham Lincoln:Speeches and Writings 1859-1865 at 246, 254(Don E. Fehrenbacher ed., 1989). The authoritythe President seeks here turns Lincoln’s formu-lation on its head. For the President does notacknowledge that the extraordinary power heseeks would result in the suspension of even onelaw and he does not contend that this powershould be limited to dire emergencies thatthreaten the nation. Rather, he maintains thatthe authority to order the military to seize anddetain certain civilians is an inherent power ofthe Presidency, which he and his successors mayexercise as they please.

To sanction such presidential authority toorder the military to seize and indefinitely detain

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civilians, even if the President calls them “enemycombatants,” would have disastrous conse-quences for the Constitution—and the country.For a court to uphold a claim to such extraordi-nary power would do more than render lifelessthe Suspension Clause, the Due Process Clause,and the rights to criminal process in the Fourth,Fifth, Sixth, and Eighth Amendments; it wouldeffectively undermine all of the freedoms guar-anteed by the Constitution. It is that power—were a court to recognize it—that could lead allour laws “to go unexecuted, and the governmentitself to go to pieces.” We refuse to recognize aclaim to power that would so alter the constitu-tional foundations of our Republic.

IV.

For the foregoing reasons, we reverse the judg-ment of the district court dismissing al-Marri’spetition for a writ of habeas corpus. We remandthe case to that court with instructions to issue awrit of habeas corpus directing the Secretary ofDefense to release al-Marri from military custodywithin a reasonable period of time to be set bythe district court. The Government can transferal-Marri to civilian authorities to face criminalcharges, initiate deportation proceedings againsthim, hold him as a material witness in connec-tion with grand jury proceedings, or detain himfor a limited time pursuant to the Patriot Act.But military detention of al-Marri must cease.

REVERSED AND REMANDED

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HUDSON, District Judge, dissenting:I regret that I am unable to concur in the

majority opinion, except to the extent that Iagree that this Court has jurisdiction over thisappeal. Although I do not embrace all aspects ofthe majority’s jurisdictional reasoning, I agreethat Section 7 of the Military Commission Act of2006 (MCA) does not divest this Court of its con-stitutional jurisdiction, under Article I, Section9, to review habeas corpus decisions involvingindividual detainees within the United States.See Hamdi v. Rumsfeld, 542 U.S. 507, 525, 124 S.Ct. 2633, 2644 (2004). The MCA may, however,foreclose a right of statutory review. Beyond thejurisdictional question, the majority and I partcompany.

While I commend the majority on a thoroughlyresearched and impressively written opinion, Imust conclude that their analysis flows from afaulty predicate. In my view, the appellant wasproperly designated as an enemy combatant bythe President of the United States pursuant tothe war powers vested in him by Articles I and IIof the United States Constitution and byCongress under the Authorization to Use Mili-tary Force (AUMF). See Hamdi v. Rumsfeld, 296F.3d 278, 281–82 (4th Cir. 2002).1 I am also of

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1 In Hamdi v. Rumsfeld, the U.S. Supreme Courtfound that the AUMF provided congressional authority forthe President to detain Hamdi as an enemy combatantunder the narrow facts of that case. The critical elements ofthe court’s definition of an “enemy combatant”, for the pur-poses of that case, were the petitioner’s being: 1) “part of asupporting force hostile to the United States or coalitionpartner”, and (2) “engaged in an armed conflict against the

the opinion that al-Marri has received all dueprocess entitlements prescribed by existingUnited States Supreme Court precedent. I wouldtherefore vote to affirm the district court’s dis-missal of al-Marri’s Petition for Writ of HabeasCorpus.

The wellspring of the majority’s reasoning isthe notion that a non-military person arrested onU.S. soil, outside the zone of battle, for providingactive aid to the enemy at time of war, cannot bedeclared an enemy combatant and detained forthe duration of the hostilities, but must be pros-ecuted in the civilian courts of the United States.In fact, the majority would even go further andfind that the language of the AUMF does notinclude organizations, such as al Qaeda, that arenot affiliated with recognized nation states. Theclear congressional intent underlying the AUMFwas to afford the President of the United States

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United States.” Hamdi, 542 U.S. at 526, 124 S. Ct. at 2645(internal quotation marks omitted).

The boundaries of activity qualifying for “enemy com-batant” status staked out in Hamdi were not meant to beimmutable. The obvious impact of the limiting language wasto confine the court’s holding to the immediate facts beforethem.

While al-Marri was not captured while armed in a formaltheater of war, the evidence would certainly support the con-clusion that he was actively supporting forces hostile to theUnited States—and that the forces he was supporting wereactively engaged in armed conflict against the UnitedStates.

Given the unconventional nature of the conflict that theUnited States is engaged in with al Qaeda, the exact defi-nitions of “enemy combatants” and “enemy belligerents” aredifficult to conceptualize and apply with precision.

all the powers necessary to suppress those indi-viduals or organizations responsible for the ter-rorist attack on September 11, 2001. This broadlanguage would certainly seem to embrace sur-reptitious al Qaeda agents operating within thecontinental United States. The AUMF providedas follows:

[T]he President is authorized to use allnecessary and appropriate force againstthose nations, organizations, or personshe determines planned, authorized, com-mitted, or aided the terrorist attacks thatoccurred on September 11, 2001, or har-bored such organizations or persons, inorder to prevent any future acts of inter-national terrorism against the UnitedStates by such nations, organizations orpersons.

Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224(2001) (emphasis added). History has proven thatal Qaeda, an international terrorist organizationwith which the United States is at war, fallssquarely within that definition. See Hamdi v.Rumsfeld, 316 F.3d 450, 459 (4th Cir. 2003),vacated and remanded on other grounds, Hamdi v.Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633 (2004).

Central to the majority’s analysis is the locus ofhis arrest. Unlike the petitioners in Hamdi v.Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633 (2004),and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006),al-Marri is a lawful resident alien who was nottaken into custody in a battle zone. He wasarrested in Peoria, Illinois, where he was residingon a student visa. Despite powerful evidence of his

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connection to al Qaeda, the majority believe thePresident is without power to declare him anenemy combatant. They believe he must beindicted and tried for crimes against the UnitedStates. Although definitive precedent is admit-tedly sparse, in my opinion, this position is unsup-ported by the weight of persuasive authority.

In Padilla v. Hanft, 423 F.3d 386 (4th Cir.2005), a panel of this Court unanimously rejectedthe argument that the locus of capture was rele-vant to the President’s authority to detain anenemy combatant. See id. at 394. Padilla, a U.S.citizen, was arrested by FBI agents upon hisarrival at O’Hare International Airport inChicago, Illinois. Id. at 388. A close associate ofal Qaeda, Padilla had been “armed and presentin a combat zone during armed conflict betweenal Qaeda/Taliban forces and the armed forces ofthe United States.” Id. at 390 (internal quotationmarks omitted). Moreover, “Padilla met withKhalid Sheikh Mohammad, a senior al Qaedaoperations planner, who directed Padilla totravel to the United States for the purpose ofblowing up apartment buildings, in continuedprosecution of al Qaeda’s war of terror againstthe United States.” Id.

This Court in Padilla reversed the holding ofthe district court that the President lackedauthority under the AUMF to detain Padilla, andthat Padilla must be either criminally prosecutedor released. Id. With respect to Padilla’s argu-ment that the circumstances of his detentionmandated only the option of criminal prosecu-tion, this Court noted:

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. . . We are convinced, in any event,that the availability of criminal processcannot be determinative of the power todetain, if for no other reason than thatcriminal prosecution may well not achievethe very purpose for which detention isauthorized in the first place—the preven-tion of return to the field of battle. Equallyimportant, in many instances criminalprosecution would impede the Executive inits efforts to gather intelligence from thedetainee and to restrict the detainee’scommunication with confederates so as toensure that the detainee does not pose acontinuing threat to national security evenas he is confined—impediments that wouldrender military detention not only anappropriate, but also the necessary, courseof action to be taken in the interest ofnational security.

Id. at 394–95.Military detention during time of war and

criminal prosecution serve discrete functions.The object of criminal prosecution is to punish forlegal transgression. The purpose of militarydetention is to immobilize the enemy during hos-tilities. Hamdi, 542 U.S. at 518, 124 S. Ct. at2640. Such detention is also intended “to preventthe captured individual from serving the enemy.”In re Territo, 156 F.2d 142, 145 (9th Cir. 1946).

The only significant fact that distinguishes thejustification for Padilla’s detention from that ofal-Marri is that Padilla at some previous point intime had been armed and present in a combatzone. There was no indication, however, that

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Padilla was ever a soldier in a formal sense, par-ticularly while acting on U.S. soil. Like Padilla,al-Marri, an identified al Qaeda associate, wasdispatched to the United States by the Septem-ber mastermind as a “sleeper agent” and toexplore computer hacking methods to disrupt theUnited States’ financial system. Moreover, al-Marri volunteered for a martyr mission on behalfof al Qaeda, received funding from a known ter-rorist financier, and communicated with knownterrorists by phone and e-mail. Decl. of Jeffrey N.Rapp, Director, Joint Intelligence Task Force forCombating Terrorism, ¶ 7, Sept. 9, 2004. It is alsointeresting to note that al-Marri arrived in theUnited States on September 10, 2001. Id.

The district court in this case credited the Dec-laration of Rapp, which was unrebutted, andfound by a preponderance of the evidence, thatal-Marri had been properly classified anddetained as an enemy combatant. See Al-Marri v.Wright, 443 F. Supp. 2d 774, 784 (D.S.C. 2006).2

The standard employed by the district court todetermine al-Marri’s qualifications for enemycombatant status was analogous to that invokedby the United States Supreme Court in Ex ParteQuirin, 317 U.S. 1, 63 S. Ct. 2 (1942). In Quirin,the Court explained,

[E]ntry upon our territory in time ofwar by enemy belligerents, includingthose acting under the direction of thearmed forces of the enemy for the pur-

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2 Al-Marri not only failed to offer any evidence on hisbehalf, he refused to even participate in the initial eviden-tiary process. Al-Marri, 443 F. Supp. 2d at 785.

pose of destroying property used or use-ful in prosecuting the war, is a hostileand war-like act. . . .

. . . Citizens who associate themselveswith the military arm of the enemy gov-ernment, and with its aid, guidance anddirection enter this country bent on hos-tile acts are enemy belligerents withinthe meaning of . . . the law of war. . . .

Id. at 36–38. The Quirin Court further providedthat “[i]t is without significance that petitionerswere not alleged to have borne conventionalweapons or that their proposed hostile acts didnot necessarily contemplate collision with theArmed Forces of the United States.” Id. at 37.“Nor are petitioners any the less belligerents if,as they argue, they have not actually committedor attempted to commit any act of depredation orentered the theatre or zone of active militaryoperations.” Id. at 38.

Ex Parte Milligan, 71 U.S. 2 (1866), does notundermine the district court’s decision. Milligandid not associate himself with a rebellious Statewith which the United States was at war. SeeMilligan, 71 U.S. at 131; Quirin, 317 U.S. at 45,63 S. Ct. at 19 (noting that the Court in Milligan“concluded that Milligan [was] not . . . a part ofor associated with the armed forces of theenemy”). In this case, the unrebutted evidenceshows that al-Marri associated himself with andbecame an agent of al Qaeda, the organizationtargeted by the AUMF and the enemy with whichthe United States is at war. See Rapp Decl. ¶ 7(“Al-Marri is an al Qaeda ‘sleeper agent’ . . . was

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trained at an al Qaeda terror camp . . . met per-sonally with Usama Bin Laden . . . and volun-teered for a martyr mission.”).3 As noted above, itis without significance that al Marri did not him-self carry a conventional weapon in a zone ofactive military operations. See Quirin, 317 U.S.at 37–38.

In Hamdi, the Supreme Court considered thedue process requirements for a citizen being heldin the United States as an enemy combatant. SeeHamdi, 542 U.S. at 509, 124 S. Ct. at 2635.Hamdi was an American citizen captured inAfghanistan for allegedly taking up arms withthe Taliban in a combat zone. Id. at 510, 124 S.Ct. at 2635. Like al-Marri, Hamdi was beingdetained at the Naval Brig in Charleston, SouthCarolina. Id. at 510, 124 S. Ct. 2636. After apply-ing a balancing of interest calculus, the Courtobserved, “a citizen-detainee seeking to challengehis classification as an enemy combatant mustreceive notice of the factual basis for his classi-fication, and a fair opportunity to rebut the Gov-

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3 Just as mere presence is not sufficient to make one apart of a criminal conspiracy or an accomplice to a crime, Iagree with the majority that mere association with al Qaedaor an organization that supports al Qaeda does not necessar-ily make one an enemy combatant. See Milligan, 71 U.S. at131 (stating that “[i]f in Indiana [Milligan] conspired with badmen to assist the enemy, he is punishable for it in the courtsof Indiana”). This is not a case, however, of mere association.Al-Marri trained with and became an agent of al Qaeda and,operating under its guidance and direction, entered the UnitedStates on September 10, 2001, “for the purpose of engaging inand facilitating terrorist activities subsequent to September11,” the very activities that the AUMF was intended to pre-vent. Rapp Decl. ¶ 7; see AUMF § 2(a).

ernment’s factual assertions before a neutraldecisionmaker.” Hamdi, 542 U.S. at 533, 124 S.Ct. at 2648. “It is equally fundamental that theright to notice and an opportunity to be heardmust be granted at a meaningful time and in ameaningful manner.” Id. at 533, 124 S. Ct. at2649 (internal quotation marks omitted).

After upholding the power of the President todetain al-Marri under the AUMF, the districtcourt, after providing him with all due processentitlements articulated in Hamdi, found thathis continued detention as an enemy combatantwas proper and dismissed his petition. See Al-Marri, 443 F. Supp. 2d at 785. In addition, al-Marri was represented by counsel at all stages ofthe proceedings below.

I believe the district court correctly concludedthat the President had the authority to detain al-Marri as an enemy combatant or belligerent.Although al-Marri was not personally engaged inarmed conflict with U.S. forces, he is the type ofstealth warrior used by al Qaeda to perpetrateterrorist acts against the United States. Al-Marri’s detention is authorized under the AUMF“to prevent any future acts of international ter-rorism against the United States.” AUMF § 2(a).Furthermore, setting aside the amorphous dis-tinction between an “enemy combatant” and an“enemy belligerent,” there is little doubt from theevidence that al-Marri was present in the UnitedStates to aid and further the hostile and sub-versive activities of the organization responsiblefor the terrorist attacks that occurred on Septem-ber 11, 2001.

I therefore vote to affirm the district court.

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

__________CIVIL ACTION NO. 2:04-2257-HFF

__________

ALI SALEH KAHLAH AL-MARRI, and MARK A. BERMAN, as next friend,

Petitioners,—vs.—

COMMANDER S.L. WRIGHT, USN Commander,Consolidated Naval Brig,

Respondent.__________

MEMORANDUM OPINION AND ORDER

I. INTRODUCTIONThis is a petition for writ of habeas corpus,

filed pursuant to 28 U.S.C. § 2241. The Court hasjurisdiction over the subject matter under 28U.S.C. § 1331. The matter is before the Court forreview of the Report and Recommendation(Report) of the United States Magistrate Judgerecommending that the Court dismiss the peti-tion. The Report is made in accordance with 28U.S.C. § 636 and Local Civil Rule 73.02 for theDistrict of South Carolina.

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II. FACTUAL AND PROCEDURAL HISTORYIn its Memorandum Opinion and Order of July

8, 2005, the Court recited the facts relevant tothis petition:

[Petitioner Ali Saleh Kahlah] [a]l-Marri[1] is a Qatari national who legallyentered the United States on September10, 2001, with his wife and children. Hehad previously obtained a bachelor’sdegree from Bradley University in Peo-ria, Illinois, in the early 1990s, and wasreturning to the United States to obtaina master’s degree from Bradley.

On December 12, 2001, al-Marri wasarrested by FBI agents in Peoria at thedirection of the U.S. Attorney’s Office forthe Southern District of New York as amaterial witness in the investigation ofthe September 11, 2001, terroristattacks. He was then transferred to NewYork City.

Al-Marri was formally arrested on acriminal complaint charging him withcredit card fraud on January 28, 2002.On February 6, 2002, he was indictedand charged with possession of 15 ormore unauthorized or counterfeit accessdevices with intent to defraud in theUnited States District Court for the

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1 As the Court has previously noted, there are twoPetitioners in this case, one of whom is acting as Ali SalehKahlah al-Marri’s next friend. As used here, “Petitioner”refers to al-Marri.

Southern District of New York. He plednot guilty, and the case followed the nor-mal course of litigation. On January 22,2003, al-Marri was charged in a secondindictment with two counts of making afalse statement to the FBI, three countsof making a false statement in a bankapplication, and one count of using ameans of identification of another personfor purposes of influencing the action of afederally insured financial institution.He also entered a plea of not guilty to thesecond indictment and succeeded in hav-ing the two indictments consolidated.

Al-Marri initially waived any objectionto venue in the Southern District of NewYork, but later withdrew his waiver afterobtaining new counsel. He then moved todismiss the indictments on grounds ofimproper venue. On May 12, 2003, al-Marri’s motion was granted and theindictments were dismissed for impropervenue. However, a new criminal com-plaint had been filed under seal in [theCentral District of Illinois] on May 1,2003, and al-Marri was arraigned on thatcomplaint on May 13, 2003. He was thentransferred back to Peoria, where agrand jury indicted him on the samecounts that had been charged in the twoindictments in the Southern District ofNew York. Al-Marri was arraigned and apretrial conference was set for July 2,2003, with a jury trial to begin on July21, 2003.

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On June 23, 2003, President Bush des-ignated al-Marri as an enemy combatantand directed that he be transferred to thecontrol of the Defense Department fordetention. That same morning, the U.S.Attorney’s Office moved to dismiss theindictment with prejudice, and themotion was granted. Al-Marri’s counselthen requested that the [c]ourt stay thecase to prevent any attempt to transferhim from the jurisdiction until he couldfile a habeas petition. However, the[c]ourt determined that as the case hadbeen dismissed with prejudice, it lackedjurisdiction to issue any type of a stay.The [c]ourt did obtain the U.S. Attorney’sagreement to inform counsel of the loca-tion to which al-Marri was to be moved,and counsel has been so advised. TheU.S. Attorney also agreed to provide boththe [c]ourt and al-Marri’s counsel withadvance notice if al-Marri was going tobe moved to any location outside of theUnited States so that counsel could seekan emergency injunction in the appro-priate court. Al-Marri was then immedi-ately transferred into military custodyand transported to the Naval Consoli-dated Brig in Charleston, South Carolina,where he continues to be held.

On July 8, 2003, al-Marri’s counselfiled a § 2241 [p]etition on his behalf, asit is undisputed that al-Marri is unavail-able to sign it for himself. In response,

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the Government moved to either dismissor transfer the [p]etition to the Districtof South Carolina, raising essentiallythree arguments: (1) the [p]etition hasnot been properly brought on al-Marri’sbehalf; (2) no proper respondent withcustody over al-Marri is present withinthis Court’s territorial jurisdiction; and(3) venue over the action appropriatelylies in South Carolina, where he isdetained.

Al-Marri v. Hanft, 378 F. Supp. 2d 673, 674-75(D.S.C. 2005) (order denying summary judgment)(quoting Al-Marri v. Bush, 274 F. Supp. 2d 1003,1004-04 (C.D. Ill. 2003)).

The United States District Court for the Cen-tral District of Illinois granted the Government’smotion to dismiss on the ground that the petitionhad been filed in an improper venue. Al-Marri,274 F. Supp. 2d at 1010. The Court of Appeals forthe Seventh Circuit affirmed, Al-Marri v. Bush,360 F.3d 707 (7th Cir. 2004), and the SupremeCourt denied certiorari, Al-Marri v. Rumsfeld,543 U.S. 809 (2004).

On July 8, 2004, Petitioner filed the presentpetition for writ of habeas corpus, making fiveclaims: (1) unlawful detention, (2) right to coun-sel, (3) right to be charged, (4) denial of due pro-cess, and (5) unlawful interrogation.2 One yearlater, on July 8, 2005, the Court denied Peti-

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2 Petitioner’s second and fifth claims, not cognizable inthis habeas action, are the subject of a second civil actioncurrently pending before the Court, Al-Marri v. Rumsfeld,C.A. No. 2:05-2259-HFF-RSC.

tioner’s third ground for relief, holding that thePresident of the United States possesses thelegal authority to order detention as an enemycombatant of a non-citizen captured in theUnited States. Al-Marri, 378 F. Supp. 2d at 682.The Court then recommitted the petition toUnited States Magistrate Judge Robert S. Carrfor an examination of the factual allegations sup-porting Respondent’s detention of Petitioner asan enemy combatant. Subsequently, MagistrateJudge Carr directed the parties to brief the Courton the burdens of production and persuasionapplicable to the factual inquiry regarding Peti-tioner’s detention. After reviewing these briefsand giving the parties an opportunity to respondand to be heard, the Magistrate Judge issued theReport which the Court now reviews.3

III. STANDARD OF REVIEWThe Magistrate Judge makes only a recom-

mendation to this Court. The recommendationhas no presumptive weight. The responsibility tomake a final determination remains with theCourt. Mathews v. Weber, 423 U.S. 261, 270(1976). The Court is charged with making a denovo review of those portions of the Report towhich specific objection is made, and the Court

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3 Subsequent to the issuance of the Report, theSupreme Court decided Hamdan v. Rumsfeld, 126 S.Ct.2749 (2006). After reviewing the parties’ supplemental briefsdiscussing the possible relevance of Hamdan here, the Courtconcludes that Hamdan has no bearing on the instant peti-tion. See id. at 2798 (expressly noting that Hamdan did not“address[ ] the Government’s power to detain [Hamdan] forthe duration of active hostilities[.]”).

may accept, reject, or modify, in whole or in part,the recommendation of the Magistrate Judge orrecommit the matter with instructions. 28 U.S.C.§ 636(b)(1).

IV. DISCUSSION

A. Burdens of Production and PersuasionAs the Magistrate Judge notes, there is no

binding standard for reviewing the factual basissupporting the detention of an alleged enemycombatant. (Report 3.) What little guidance isavailable comes from the Supreme Court’s plu-rality opinion in Hamdi v. Rumsfeld, 542 U.S.507 (2004). In Hamdi, a plurality of the Courtheld that the President has the authority todetain a United States citizen captured whiletaking up arms against the United States in sup-port of the Taliban or Al-Qaeda. The pluralityalso held, however, that “a citizen-detainee seek-ing to challenge his classification as an enemycombatant must receive notice of the factualbasis for his classification, and a fair opportunityto rebut the Government’s factual assertionsbefore a neutral decisionmaker.” Id. at 533. Infleshing out the details of what has come to becalled the “due process hearing,” the pluralityadded that:

enemy combatant proceedings may betailored to alleviate their uncommonpotential to burden the Executive at atime of ongoing military conflict.Hearsay, for example, may need to beaccepted as the most reliable available

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evidence from the Government in such aproceeding. Likewise, the Constitutionwould not be offended by a presumptionin favor of the Government’s evidence, solong as that presumption remained arebuttable one and fair opportunity forrebuttal were provided. Thus, once theGovernment puts forth credible evidencethat the habeas petitioner meets theenemy-combatant criteria, the onus couldshift to the petitioner to rebut that evi-dence with more persuasive evidencethat he falls outside the criteria.

Id. at 534. Describing this process as “both pru-dent and incremental,” the plurality noted thatthe “full protections that accompany challengesto detentions in other settings may proveunworkable and inappropriate in the enemy-com-batant setting.” Id. at 535.

Petitioner now seeks to escape the frameworkoutlined by the Hamdi Court and asserts thatRespondent should be required to bear both theburdens of production and persuasion under astandard more closely approximating that usedin a criminal trial. (Pet’s. Obj. 18-27.) Petitionercontends that the Constitution does not permitany presumption in favor of the Government, id.at 17, that any evidence produced by the Gov-ernment must be admissible under the FederalRules of Evidence, id. at 27, and that he is enti-tled to discovery, id. at 33. In short, Petitioneradvocates a “full-blown adversary process.” Id. at16.

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Petitioner’s principal contention is that Hamdidoes not apply here because the “constitutionalbalance” it struck is limited to cases where thealleged enemy combatant is captured on a foreignbattlefield. The Court finds this argument uncon-vincing.

As an initial matter, while the Supreme Courtnecessarily analyzed the President’s authority todetain Hamdi based on the location of his cap-ture, the Court’s discussion of the process whichhe was to be afforded is not tethered to the factssurrounding his apprehension and detention.Instead, the plurality repeatedly emphasizedthat the due process requirements it outlinedapply to “enemy combatants.” Hamdi, 542 U.S. at524 (“Even in cases in which the detention ofenemy combatants is legally authorized, thereremains the question of what process is consti-tutionally due to a citizen who disputes hisenemy-combatant status.”); id. at 532 (speakingof the “proper constitutional balance when aUnited States citizen is detained as an enemycombatant”); id. at 533 (“We therefore hold thata citizen-detainee seeking to challenge his clas-sification as an enemy combatant must receivenotice . . . and a fair opportunity to rebut the Government’s factual assertions[.]”); id.(“[E]nemy combatant proceedings may be tailoredto alleviate their uncommon potential to burdenthe Executive at a time of ongoing military con-flict.”); id. at 534 (“[O]nce the Government putsforth credible evidence that the habeas petitionermeets the enemy-combatant criteria . . .”); id. at535 (“[W]hile the full protections that accompanychallenges to detentions in other settings may

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prove unworkable and inappropriate in theenemy-combatant setting. . . .”).4 In light ofthese statements, it seems clear that the SupremeCourt intended the due process structure itannounced in Hamdi to apply to any challenge todetention mounted by an alleged enemy combat-ant.

Petitioner’s attempt to limit Hamdi’s scopelikewise finds little support in the few subse-quent cases which have analyzed challenges todetention. The United States District Court forthe District of Columbia, for example, observedthat Hamdi “considered the process that is owedunder the Constitution for United States citizensdetained as enemy combatants.” Khalid v. Bush,355 F. Supp. 2d 311, 323 n.16 (D.D.C. 2005).Importantly, the court made this statement whilereviewing the claims of alleged enemy combat-ants defined as:

individual[s] who [were] part of or sup-porting Taliban or al Qaeda forces, orassociated forces that are engaged in hos-tilities against the United States or itscoalition partners. This includes any per-son who has committed a belligerent actor has directly supported hostilities inaid of enemy armed forces.

Id. at 315 n.2. This definition makes no referenceto the location of any hostile act or the place of

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4 Although the plurality spoke in terms of the processavailable to a citizen who challenges his detention, Peti-tioner’s status as a non-citizen would not seem to warrantany expansion of the process to which a citizen detained asan enemy combatant is entitled.

capture. In noting that any due process rightspossessed by the Khalid detainees afford “muchof the same process” available to Hamdi, thecourt implicitly recognized the broad applicabil-ity of the due process standards set out inHamdi.

Similarly, in Padilla v. Hanft, the Fourth Cir-cuit viewed Hamdi as addressing the authority ofthe Executive “to detain citizens who qualify as‘enemy combatants.’ ” 423 F.3d 286, 391 (4th Cir.2005) (quoting Hamdi, 542 U.S. at 516). While itis true that Hamdi and Padilla defined “enemycombatants” as “individual[s] who . . . [were]part of or supporting forces hostile to the UnitedStates or coalition partners in Afghanistan andwho engaged in an armed conflict against theUnited States there,” Padilla, 423 F.3d at 391(citing Hamdi, 542 U.S. at 516) (internal punc-tuation omitted) (alteration in original), this def-inition was expressly used only for “purposes ofthis case,” Hamdi, 542 U.S. at 516; see alsoPadilla, 423 F.3d at 391. Hamdi itself recognizedthat “there is some debate as to the proper scope”of the term “enemy combatant.” Hamdi, 542 U.S.at 516. The Court further observed that “[t]helegal category of enemy combatant has not beenelaborated in great detail. The permissiblebounds of the category will be defined by thelower courts as subsequent cases are presentedto them.” Id. at 522. It is clear, then, that theterm “enemy combatant” is not limited to the def-inition used in Hamdi. This Court, in fact, rec-ognized as much when it denied Petitioner’smotion for summary judgment. Al-Marri, 378 F.Supp. 2d at 676-77 (holding that Petitioner’s sta-

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tus as an alien, rather than his place of capture,justifies his detention by the President). AsHamdi has been interpreted as supporting theauthority of the President to designate Padilla,423 F.2d at 391, and al-Marri, 378 F. Supp. 2d at676-77, as enemy combatants and to order theirdetention, it makes little sense to cast aside theframework it announced for analyzing the factualevidence supporting that detention. The Courtconcludes, then, that the due process require-ments outlined in Hamdi apply here.

Having determined that Hamdi applies, thequestion becomes what burdens it places on theGovernment and on an alleged enemy combatantduring the initial phase of an enemy combatantproceeding. While the plurality opinion does notindicate precisely how the burdens of productionand persuasion are to be allocated, it does offermuch guidance. First, as already noted, it indi-cates that the Constitution permits “a presump-tion in favor of the Government’s evidence.”Hamdi, 542 U.S. at 534. Second, once the Gov-ernment puts forth “credible evidence” that thepetitioner is an enemy combatant, the burdenshifts to the petitioner to rebut that showingwith “more persuasive evidence.” Id.

B. Factual Evidence

1. Government’s BurdenUsing the framework announced in Hamdi, the

Court begins its inquiry by examining the evi-dence put forth by the Government in support ofPetitioner’s detention. Here, Respondent basesPetitioner’s designation as an enemy combatant

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and his continued detention solely on the “Dec-laration of Mr. Jeffrey N. Rapp, Director, JointIntelligence Task Force for Combating Terror-ism” (“Rapp Declaration” or “the Declaration”),which consists of a summary of the intelligencegathered on Petitioner’s activities in the UnitedStates. Before considering the import of the RappDeclaration, the Court turns to Petitioner’s objec-tion to the Magistrate Judge’s conclusion thatthe Declaration can be considered by the Court insupport of Respondent’s argument that Petitioneris an enemy combatant.

a. Petitioner’s ObjectionsPetitioner’s principal objection to the Court’s

consideration of the Rapp Declaration centers onthe hearsay status of the Declaration. Afterasserting that hearsay is not admissible here,Petitioner argues, “The government’s declarant,Jeffrey N. Rapp, whose hearsay statement pro-vides the sole factual basis for Petitioner’s poten-tially lifelong imprisonment, has no personalknowledge of any asserted facts.” (Pet’s. Obj. 28.)Thus, Petitioner posits that the admission of theRapp Declaration would run afoul of the prohi-bition of the admission of hearsay found in theFederal Rules of Evidence. In this argument,Petitioner is joined by amici curiae. In support ofthis position, Petitioner and amici contend thatHamdi cannot be read to permit a court toreceive a hearsay affidavit such as the Rapp Dec-laration into evidence.5

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5 Despite this argument, amici admit, “To be sure, theHamdi plurality indicated that the hearsay affidavit in that

In making this argument, Petitioner and amicimisread Hamdi and misunderstand the nature ofthe current proceedings. As already observed,Hamdi indicated that enemy combatant pro-ceedings should be “both prudent and incremen-tal.” 542 U.S. at 539. The Court further indicatedthat the first increment consists of a simpleexamination of the available evidence and anopportunity for rebuttal by the detainee. Id. at538. At this stage, a court can quickly separateout “the errant tourist, embedded journalist, orlocal aid worker,” id. at 534, after a quick com-parison of the evidence presented by the Gov-ernment and the rebuttal offered by the detainee.A process of this sort, then, prevents an “erro-

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case, if admitted on remand, would not offend due process.”(Am. Br. 3.) While amici attempt to draw a distinctionbetween, on the one hand, the admission of a hearsay state-ment as satisfying a minimum level of due process and, onthe other hand, the positive authority required for theadmission of evidence, Hamdi itself does not recognize thisdistinction. As noted below, Hamdi, acknowledging theMobbs Declaration to be hearsay, expressly allows a “habeascourt . . . [to] accept affidavit evidence like that containedin the Mobbs Declaration. . . .” 542 U.S. at 538. Hamdi alsorejected the district court’s disapproval of the “hearsaynature of the Mobbs Declaration.” Id. at 528. In light ofthese statements, the Court is not convinced that Hamdi canbe limited to the due process implications of the introductionof hearsay declarations. Had the Supreme Court intended tospeak in such limited terms, surely it would not have givenlower courts the impression that hearsay documents couldbe considered at the initial stage of an enemy combatantproceeding. Instead, if amici’s argument were correct, theHamdi Court would have, at a minimum, noted the potentialfor conflict between the consideration of the Mobbs Decla-ration and the Federal Rules of Evidence.

neous deprivation of a detainee’s liberty interest”while eliminating procedures which unduly bur-den the Government. Id. Incumbent in this pro-cess is the detainee’s burden of presentingrebuttal evidence sufficient to overcome the Gov-ernment’s factual basis for detaining the allegedcombatant. Therefore, the question at this stageis whether the factual notice provided by theGovernment can consist of hearsay or whether itmust meet a more stringent evidentiary stan-dard.

On this point, Hamdi is unequivocal: hearsaymay be used to satisfy the Government’s burdenof providing an alleged enemy combatant withnotice of the factual allegations against him. InHamdi, the Supreme Court repeatedly indicatedthat hearsay may be considered at the initialphase of enemy combatant proceedings. TheCourt, for example, expressly rejected the districtcourt’s view which “disapproved of the hearsaynature of the Mobbs Declaration.” 542 U.S. at528, 532. The Court further held that “[h]earsay. . . may need to be accepted as the most reliableavailable evidence from the Government in sucha proceeding.” Id. at 533-34. This hearsay couldexist of, among other things, a summary of offi-cial records created by “a knowledgeable affiant.”Id. at 534. Finally, the Court gave specificapproval to the admission of these affidavits,holding that “a habeas court in a case such asthis may accept affidavit evidence like that con-tained in the Mobbs Declaration, so long as italso permits the alleged combatant to present hisown factual case to rebut the Government’sreturn.” Id. at 538.

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As with his earlier contention that Hamdi’sallocation of the burdens of production and per-suasion does not apply here, Petitioner’s primaryargument for distinguishing Hamdi’s teaching onthe consideration of hearsay statements is thatHamdi applies only when an alleged enemy com-batant has been detained on a foreign battlefield.Having rejected this distinction earlier, theCourt refuses to revive it now. As Hamdi appliesto support Petitioner’s detention as an enemycombatant, its instructions as to the process towhich Petitioner is entitled also apply.6

Hamdi, then, clearly permits the introductionof the Rapp Declaration by Respondent at thisinitial stage of the enemy combatant proceeding.7

Whether Hamdi allows this under the residualexception to the hearsay rule, as Respondent sug-

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6 Because of Hamdi’s applicability here, the Court alsorejects Petitioner’s contention that he is entitled to discov-ery. See Hamdi, 542 U.S. at 528, 532 (rejecting the districtcourt’s determination that “quite extensive discovery” is nec-essary for “meaningful judicial review.”) (internal citationsomitted); see also Fed. R. Gov. Sec. 2254 Cases 6 (providingthat discovery is not automatic in habeas cases).

7 The Court notes that this enemy combatant pro-ceeding is also a habeas proceeding. As such, this initialphase is analogous to the initial review of a petition for writof habeas corpus, where the Court may consider affidavits orother evidence as warranting summary dismissal. See Fed.R. Gov. Sec. 2254 Cases 4; see also Fed. R. Gov. Sec. 2254Cases 1 (“The district court may apply any or all of theserules to a habeas corpus petition not covered by Rule 1(a).”).In a habeas proceeding, the Court may, in fact, consider affi-davits or other documents at later stages of the proceeding.Fed. R. Gov. Sec. 2254 Cases 7 (“Affidavits may also be sub-mitted and considered as part of the record.”).

gests (Resp.’s Rep. 17), or on some other basis,this Court is not free to disregard that holdingnow. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)(noting that the lower court was correct in apply-ing prior Supreme Court decision despite dis-agreement with it because it is Supreme Court’sprerogative alone to overrule one of its prece-dents). In any event, having determined thatHamdi authorizes the consideration of hearsayevidence at the initial stage of this enemy com-batant proceeding, the Court need go no further.Whether the Rapp Declaration would be admis-sible during the later phases of such a proceedingis not a question before the Court today.

b. Rapp DeclarationOnce it is determined that the Rapp Declara-

tion may be considered by the Court at thisstage, it is apparent that the Declaration satis-fies Respondent’s burden of providing Petitionerwith the factual basis supporting his detention asan enemy combatant. As summarized by theMagistrate Judge, the Declaration makes the fol-lowing assertions:

A. Al-Marri trained at Bin Laden’sAfgha-nistan terrorist training campfor 15-19 months between approxi-mately 1996 and 1998. Training typ-ically involved training in use ofpoisons, among other things.

B. In the summer of 2001 al-Marri wasintroduced by Khalid ShaykhMuhammed, September 11th mas-termind, to Usamu Bin Laden, and

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al-Marri offered to be an al Qaedamartyr or do anything else al Qaedarequested. He was directed to enterthe United States as a “sleeperagent,” and to explore computerhacking methods to disrupt bankrecords and the U.S. financial sys-tem. Through this relationship al-Marri began receiving assistancefrom Mustafa Ahmed Al-Hawsawi, anal Qaeda financier who maintainedcontact with and provided logisticalsupport and funds for the September11th hijackers.

C. Mustafa Ahmed Al-Hawsawi met al-Marri in Dubai in August 2001 andprovided him $10,000 to $13,000 and$3000 to purchase a laptop computer.These funds were authorized byKhalid Shaykh Muhammed.

D. Al-Marri moved his family to theUnited States in September 2001ostensibly to begin studies towards agraduate degree in computer sciencesat Bradley University in the fall of2001, but by December 2001 herarely attended classes and was infailing status. Al-Marri previouslyobtained a bachelor’s degree in busi-ness administration from BradleyUniversity in 1991.

E. Analysis of al-Marri’s laptop com-puter revealed research regardinguse of chemical weapons of mass

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destruction including bookmarksrelating to the purchase of chemicalssuch as potassium cyanide, sodiumcyanide, sulfuric acid, and arsenic.Other information found on al-Marri’s computer included referencesto instructions for making hydrogencyanide, cyanide poisoning and anti-dotes, listings of chemical concen-trations “Immediately Dangerous toLife and Health,” “Toxicity Profiles:Cyanides,” and other technical infor-mation concerning doses and lethaleffects of various cyanides. Addi-tional sites referenced on the com-puter involved computer hacking,computer identity masking, and thepurchase and sale of credit card num-bers.

F. Computer examination also revealedfiles concerning jihad, martyrdom,Arabic lectures by Bin Laden, andbookmarks to jihad and Taliban-related websites, photographs of theSeptember 11th terrorist attack onthe World Trade center and Arabprisoners of war held in Afgha-nistan, a map of Afghanistan, and ananimated cartoon of an airplane fly-ing into the World Trade Center.

G. Further examination of al-Marri’scomputer revealed over 1000 appar-ent credit card numbers stored invarious computer files. Examination

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of credit card numbers led to the dis-covery of fraudulent charges to abusiness apparently established byal-Marri under an alias in Macomb,Illinois.

H. Examination of the inside of al-Marri’s computer carrying caserevealed a listing of approximatelythirty-six credit card account num-bers with names of the holders, expi-ration dates and designation ofMastercard or Visa. Al-Marri was notlisted as an account holder for anycard. Approximately one-half of thecredit cards were issued by domesticbanks to persons other than al-Marriand were either valid numbers or hadbeen valid numbers.

I. Yahoo E-mail accounts admittedlybelonging to al-Marri were created ona network operated by Western Illi-nois University in Macomb, Illinois,and three of the E-mail accounts con-tained draft E-mail messages to anE-mail account associated withKhalid Shaykh Muhammed. The mes-sages were reporting on his enroll-ment in school and a telephonenumber at which al-Marri purport-edly could be reached. The telephonenumber, however, included a NorthDakota area code and was not sub-scribed to by al-Marri. The telephone

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number is alleged to be a coded ver-sion of al-Marri’s cell phone number.

J. Calling cards attributed to al-Marriwere used in attempts to contact theUnited Arab Emirates telephonenumber of Mustafa Ahmed Al-Haw-sawi. The calling cards were usedfrom al-Marri’s cell phone, his homephone, and pay telephones inChicago, Peoria, and Springfield, Illi-nois.

(Report 6-9.) Affording this evidence a favorablepresumption, as Hamdi directs, the Court findsthat the Government has met its burden of pro-viding a factual basis in support of Petitioner’sclassification and detention as an enemy com-batant.

2. Petitioner’s BurdenHamdi provides that once the Government has

offered evidence in support of its continueddetention of an alleged enemy combatant, thedetainee must be permitted “to present his ownfactual case to rebut the Government’s return.”542 U.S. at 538. In so doing, the detainee mustpresent “more persuasive evidence” to overcomethe facts offered by the Government. Id. at 534.

In the instant case, the parties dispute theexact burden which each party bears. Respon-dent, for example, objects to the MagistrateJudge’s conclusion that the Government at alltimes bears the burden of justifying Petitioner’sdetention by clear and convincing evidence.(Resp.’s Rep. 11 n.3.) Petitioner, in objecting to

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Hamdi’s application here, objects to any pre-sumption in favor of the Government’s evidenceand to any burden being placed on Petitioner.(Pet’s. Obj. 17.) Although Petitioner’s positionmust be—and has already been—rejected, theCourt finds it unnecessary to detail with exact-ness the burdens faced by the parties. This is sobecause the Government, by presenting the RappDeclaration, has satisfied its initial burden ofproviding the factual basis for Petitioner’s deten-tion while Petitioner has offered nothing morethan a general denial in support of his burden ofpresenting “more persuasive evidence.” As sum-marized by the Magistrate Judge, Petitionerasserts:

A. He is a civilian who came to theUnited States lawfully to pursue agraduate degree at Bradley Univer-sity.

B. He denies he came to the UnitedStates as an al Qaeda “sleeper agent”or he was otherwise a member of, oraffiliated with, al Qaeda.

C. He generally denies the allegationscontained in the Rapp [D]eclarationas well as his designation as an“enemy combatant.”

D. He denies he entered the UnitedStates to commit “hostile or war-likeacts,” including acts of terrorism, orhe is otherwise a member of, or affil-iated with, al Qaeda.

(Report 10-11.)

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Despite being given numerous opportunities tocome forward with evidence supporting this gen-eral denial, Petitioner has refused to do so.Instead, he stated, “Petitioner respectfullydeclines at this time the Court’s invitation toassume the burden of proving his own innocence,a burden that is unconstitutional, unlawful, andun-American.” (Pet’s. Resp. of May 4, 2006, 3.) Asthe Magistrate Judge noted, this stance by Peti-tioner ignores his responsibility to prosecute thishabeas action under 28 U.S.C. § 2241. Petitioneralso neglects his burden of persuasion on thishabeas petition. Garlotte v. Fordice, 515 U.S. 39,46 (1995) (“[T]he habeas petitioner generallybears the burden of poof.”). Most importantly—and most critically for Petitioner—Petitioner’srefusal to participate at this stage renders theGovernment’s assertions uncontested. This leavesthe Court with “nothing specific . . . to disputeeven the simplest of assertions [by the Govern-ment] which [Petitioner] could easily” refutewere they inaccurate. (Report 12.) This puts Peti-tioner in an untenable position. As the Reportnotes:

At the very least [Petitioner’s refusalto dispute the Government’s profferedfacts] demonstrate[s] the lack of anyeffort on the part of the petitioner toestablish the falsity of the [Rapp Decla-ration], to demonstrate the possibility ofan erroneous deprivation, or otherwisemeet his burden of persuasion.

. . . .

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[Petitioner] here has been given noticeand opportunity, but has responded withmerely a general denial and an electionnot to further participate in these pro-ceedings.

Neither due process nor the rule of lawin general grant a party the right to par-ticipate only in the court procedures hedeems best or to present his proof when-ever it suits him. . . . The petitioner hassquandered his opportunity to be heardby purposely not participating in a mean-ingful way.

(Report 14, 16.)Given Petitioner’s refusal to participate in the

initial evidentiary process and his failure to offerany evidence on his behalf, it is beyond questionthat he has failed to present “more persuasiveevidence” to rebut Respondent’s classificationand detention of him as an enemy combatant.Further, given the imbalance between the evi-dence presented by the parties, the Governmentclearly meets any burden of persuasion whichcould reasonably be imposed on it at this initialstage. Proceeding incrementally, as Hamdidirects, the Court need go no further today.Accordingly, under Hamdi’s outline of the pro-cedures applicable in enemy combatant pro-ceedings, the Court finds that Petitioner hasreceived notice of the factual basis supporting hisdetention and has been afforded a meaningfulopportunity to rebut that evidence. As a review ofthat evidence does not indicate that an “erro-

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neous deprivation” has occurred, Hamdi, 542U.S. at 534, this petition should be dismissed.

IV. CONCLUSIONTherefore, pursuant to the standard set forth

above, the Court overrules Petitioner’s objectionsto the Report, adopts the Report, and incorpo-rates it herein to the extent that it does not con-tradict the terms of this Order. It is thejudgment of this Court that this petition be, andthe same is hereby, DISMISSED.

IT IS SO ORDERED.Signed this 8th day of August, 2006, in Spar-

tanburg, South Carolina.

s/ Henry F. FloydHENRY F. FLOYDUNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

CIVIL ACTION NO. 2:04-2257-HFF-RSC ALI SALEH KAHLAH AL-MARRI, and MARK A. BERMAN, as Next Friend,

Petitioners, vs. COMMANDER C.T. HANFT, USN Commander, Consolidated Naval Brig,

Respondent.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION This is a 28 U.S.C. § 2241 habeas corpus

action. The Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1331. Pending before the Court is Petitioner Ali Saleh Kahlah al-Marri’s (Petitioner)1 motion for summary judgment as to

1 Technically, there are two Petitioners in this case, one of whom is Ali Saleh Kahlah al-Marri's Next Friend. Mr. Berman is not being held as an enemy combatant. Thus, all references herein to “Petitioner” will be to Mr. al-Marri.

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counts one and three of his petition.2 The sole question before the Court today is whether the President of the United States (President) is authorized to detain a non-citizen as an enemy combatant under the unique circumstances presented here.

II. FACTUAL AND PROCEDURAL HISTORY The United States District Court for the

Central District of Illinois succinctly stated the relevant facts of this matter in Al-Marri v. Bush, 274 F. Supp. 2d 1003 (C.D.Ill. 2003):

Al-Marri is a Qatari national who legally entered the United States on September 10, 2001, with his wife and children. He had previously obtained a bachelor's degree from Bradley University in Peoria, Illinois, in the early 1990s, and was returning to the United States to obtain a master’s degree from Bradley.

On December 12, 2001, al-Marri was arrested by FBI agents in Peoria at the direction of the U.S. Attorney’s Office for the Southern District of New York as a material witness in the investigation of the September 11, 2001, terrorist attacks. He was then transferred to New York City.

2 In counts one and three of the petition, Petitioner claims that his detention without being criminally charged violates the United States Constitution, including the Fourth, Fifth and Sixth Amendments, as well as the habeas suspension clause found in Article Two.

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Al-Marri was formally arrested on a criminal complaint charging him with credit card fraud on January 28, 2002. On February 6, 2002, he was indicted and charged with possession of 15 or more unauthorized or counterfeit access devices with intent to defraud in the United States District Court for the Southern District of New York. He pled not guilty, and the case followed the normal course of litigation. On January 22, 2003, al-Marri was charged in a second indictment with two counts of making a false statement to the FBI, three counts of making a false statement in a bank application, and one count of using a means of identification of another person for purposes of influencing the action of a federally insured financial institution. He also entered a plea of not guilty to the second indictment and succeeded in having the two indictments consolidated.

Al-Marri initially waived any objection to venue in the Southern District of New York, but later withdrew his waiver after obtaining new counsel. He then moved to dismiss the indictments on grounds of improper venue. On May 12, 2003, al-Marri’s motion was granted and the indictments were dismissed for improper venue. However, a new criminal complaint had been filed under seal in [the Central District of Illinois] on May 1, 2003, and al-Marri was arraigned on that complaint on May 13, 2003. He was then transferred back to Peoria, where a grand jury indicted

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him on the same counts that had been charged in the two indictments in the Southern District of New York. Al-Marri was arraigned and a pretrial conference was set for July 2, 2003, with a jury trial to begin on July 21, 2003.

On June 23, 2003, President Bush designated al-Marri as an enemy combatant and directed that he be transferred to the control of the Defense Department for detention.[3] That same morning, the U.S. Attorney’s Office moved to dismiss the indictment with prejudice, and the motion was granted. Al-Marri’s counsel then requested that the [c]ourt stay the case to prevent any attempt to transfer him from the jurisdiction until he could file a habeas petition. However, the [c]ourt determined that as the case had been dismissed with prejudice, it lacked

3 In its answer to the petition, Respondent enumerates several bases upon which the President relied in designating al-Marri as an enemy combatant: Among the findings made by the President concerning petitioner are that he is “closely associated with al Qaeda;” [has] engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism with the aim to cause injury to or adverse effects on the United States; “possesses intelligence, including intelligence about personnel and activities of al Qaeda that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda;” and “represents a continuing, present, and grave danger to the national security of the United States” whose “detention is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States.” (Resp’t Answer to Pet. at 20 (citing President’s Order of June 23, 2003).)

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jurisdiction to issue any type of a stay. The [c]ourt did obtain the U.S. Attorney’s agreement to inform counsel of the location to which al-Marri was to be moved, and counsel has been so advised. The U.S. Attorney also agreed to provide both the [c]ourt and al-Marri's counsel with advance notice if al-Marri was going to be moved to any location outside of the United States so that counsel could seek an emergency injunction in the appropriate court. Al-Marri was then immediately transferred into military custody and transported to the Naval Consolidated Brig in Charleston, South Carolina, where he continues to be held.

On July 8, 2003, al-Marri’s counsel filed a § 2241 [p]etition on his behalf, as it is undisputed that al-Marri is unavailable to sign it for himself. In response, the Government moved to either dismiss or transfer the [p]etition to the District of South Carolina, raising essentially three arguments: (1) the [p]etition has not been properly brought on al-Marri’s behalf; (2) no proper respondent with custody over al-Marri is present within this Court’s territorial jurisdiction; and (3) venue over the action appropriately lies in South Carolina, where he is detained.

Id. at 1004-05.

The District Court for the Central District of Illinois granted the Government’s motion to dismiss

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on the ground that the petition had been filed in an improper venue. Id. at 1010. The Court of Appeals for the Seventh Circuit affirmed, Al-Marri v. Bush, 360 F.3d 707 (7th Cir. 2004), and the Supreme Court denied Petitioner’s writ of certiorari, Al-Marri v. Rumsfeld, 125 S.Ct. 34 (2004).

On July 8, 2004, Petitioner filed the present petition for writ of habeas corpus, raising five claims: 1) unlawful detention; 2) right to counsel; 3) right to be charged; 4) denial of due process; and 5) unlawful interrogation. Subsequently, on March 3, 2005, Petitioner filed the present motion for summary judgment as to counts one and three.

III. STANDARD OF REVIEW Rule 56(c) of the Federal Rules of Civil

Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The moving party bears this initial burden of informing the Court of the basis for its motions, and identifying those portions of the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court reviews the record by drawing all inferences most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962)).

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“Once the moving party carries its burden, the adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The adverse party must show more than “some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. If an adverse party completely fails to make an offer of proof concerning an essential element of that party's case on which that party will bear the burden of proof, then all other facts are necessarily rendered immaterial and the moving party is entitled to summary judgment. Celotex, 477 U.S. at 322-23. Hence, the granting of summary judgment involves a three-tier analysis. First, the Court determines whether a genuine issue actually exists so as to necessitate a trial. FED. R. CIV. P. 56(e). An issue is genuine “if the evidence is such that a reasonable [trier of fact] could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Second, the Court must ascertain whether that genuine issue pertains to material facts. FED. R. CIV. P. 56(e). The substantial law of the case identifies the material facts, that is, those facts that potentially affect the outcome of the suit. Anderson, 477 U.S. at 248. Third, assuming no genuine issue exists as to the material facts, the Court will decide whether the moving party shall prevail solely as a matter of law. FED. R. CIV. P. 56(e).

Summary judgment is “properly regarded not as a disfavored procedural shortcut, but rather as an

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integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 327. The primary issue is whether the material facts present a sufficient disagreement as to require a trial, or whether the facts are sufficiently one-sided that one party should prevail as a matter of law. Anderson, 477 U.S. at 251-52. The substantive law of the case identifies which facts are material. Id. at 248. Only disputed facts potentially affecting the outcome of the suit under the substantive law preclude the entry of summary judgment.

IV. CONTENTIONS OF THE PARTIES Petitioner posits that the President possesses

neither statutory nor constitutional authority to subject civilians, albeit non-citizens, to indefinite military detention as enemy combatants.

Respondent counters that both the Authorization for Use of Military Force (AUMF), Pub.L. No. 107-40, 115 Stat. 24, and the President’s inherent constitutional authority allow for Petitioner’s detention.

V. DISCUSSION A. Padilla v. Hanft Petitioner relies heavily on this Court’s recent

opinion in Padilla v. Hanft, No. 2:04-2221-26AJ, 2005 WL 465691 (D.S.C. Feb. 28, 2005), for his contention that “the critical issue is not citizenship but, rather, the specific circumstances surrounding

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Petitioner’s seizure by the military.” (Pet’r Mem. in Supp. of Summ. J. at 5.) Respondent, on the other hand, asserts that this Court “repeatedly recognized the significance of Padilla’s citizenship in its decision granting him summary judgment.” (Resp’t Mem. in Opp’n to Summ. J. at 7.) This Court agrees with Respondent.

First, throughout the Padilla order, the Court is careful to note that its holding is limited to the facts of the case. E.g., Padilla, 2005 WL 465691, at * 1 (“The sole question before the Court today is whether the President of the United States [ ] is authorized to detain an United States citizen as an enemy combatant under the unique circumstances presented here.”); Padilla, 2005 WL 465691, at *17 (relying on the “narrow circumstances presented here”); and Padilla, 2005 WL 465691, at *20 (stating the holding is “limited to the facts of this case”).

Next, and most importantly, unlike Petitioner, Mr. Padilla is an United States citizen. Although Petitioner would have this Court hold that the issue of whether an enemy combatant can be detained turns, not on citizenship, but on the location of his capture, the holding in Padilla does not support such an assumption. Of course, in distinguishing Mr. Padilla from Mr. Hamdi,4 this Court did recognize

4 Mr. Hamdi is an United States citizen 4 who was captured during military operations in Afghanistan and detained as an enemy combatant. The Supreme Court, in a plurality opinion, held that Mr. Hamdi was properly detained pursuant to the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 24. Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2635 (2004).

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the fact that Mr. Padilla was captured on American soil. Padilla, 2005 WL 7465691, at *6 (noting that the “cogency” of Respondent’s argument that place of capture is of no consequence “eludes the Court”). Nevertheless, the holding was not limited to that fact alone, and the Court repeatedly acknowledged the importance of Mr. Padilla’s citizenship to its holding. For instance, when relying on Ex Parte Milligan, 71 U.S (4 Wall.) 2 (1866), this Court stressed that “Milligan’s greatest import to the case at bar is the same as that found in Quirin: the detention of an United States citizen by the military is disallowed without explicit Congressional authorization.” Padilla, 2005 WL 465691, at *9.

The Court’s reliance on the Non-Detention Act, 18 U.S.C. § 4001(a), in Padilla further indicates the significance of Mr. Padilla’s citizenship. The Non-Detention Act provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Id. In response to the Government’s argument that the AUMF satisfied the Non-Detention Act’s requirement for an act of Congress, this Court noted that “‘[it] must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.’” Padilla, 2005 WL 465691, at *10 (quoting Ex Parte Endo, 323 U.S. 283, 300 (1944)) (emphasis added). In light of such precedent, this Court held that the AUMF did not authorize the detention of Mr. Padilla. Padilla, 2005 WL 465691, at * 9.

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To continue to rely on Padilla in light of the distinct and crucial differences between that case and the present, Petitioner must, and does, assert that his status as a resident alien is irrelevant to the legality of his detainment. To yield to such an argument, the Court must accept the premise that aliens to this country, at all times, have access to the same constitutional protections as its citizens. This it cannot do. Both Supreme Court precedent and statutory law require the failure of such a premise.

B. Citizen Status v. Alien Status 1. Johnson v. Eisentrager In Johnson v. Eisentrager, 339 U.S. 763

(1950), the Supreme Court addressed the question of whether enemy aliens outside of the United States, deprived of their liberty via the purported authority of the United States, were entitled access to the civilian courts to challenge the constitutionality of their imprisonment. Id. at 767. Twenty-one German nationals, in the service of the German armed forces during World War II, were convicted of “violating laws of war, by engaging in, permitting or ordering continued military activity against the United States after surrender of Germany.” Id. at 766. In holding that habeas corpus protection was not afforded to these parties,5 the Court began by measuring the differences between the status of citizens and that of aliens. The Court explained that 5 The holding of this case was limited 5 by Braden v. 30th Judicial Circuit Court of Ky, 410 U.S. 484 (1973). However, that limitation has no effect on the Eisentrager Court’s discussion of resident enemy alien rights.

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[t]he alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

Id. at 770. The Court also noted that [m]odern law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty and plunder. But even by the most magnanimous view, our law does not abolish the 9 inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance . . .

Id. at 769 (footnote omitted). The central focus of Eisentrager is on

the differences between the rights of resident aliens and non-resident aliens. However, in establishing that the extension of constitutional protections beyond citizenry requires the alien’s presence within the jurisdiction, the Court limited the reach of such protections to resident aliens. The Court acknowledged that “executive power over enemy aliens, undelayed and unhampered by

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litigation, has been deemed throughout our history, essential to war-time security.” Id. at 774. The Court recognized as the “‘sound principle of the common law’” that a resident alien enemy’s use of our courts is only limited “‘as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy.’” Eisentrager, 339 U.S. at 776 (quoting Ex parte Kawato, 317 U.S. 69, 75 (1942)). 2. Alien Enemy Act of 1798 Further indicia of the decreased rights of

enemy aliens arises from the Alien Enemy Act of 1798, 1 Stat. 577, as amended, 50 U.S.C. § 21, et seq., which has remained virtually unchanged since it was enacted. This act provides, in relevant part, that

[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

Id.

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The constitutionality of this act was upheld in Ludecke v. Watkins, 335 U.S. 160, 173 (1948), in which the Court stated,

[h]e who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of this nation, with the disposition of alien enemies during a state of war. Such a page in history is worth more than a volume of rhetoric.”

Id. That the Alien Enemy Act does not have direct

application to this case is simply a result of the nature of the war on terrorism, which is not a “declared war” against a “foreign nation or government.” Nevertheless, the AEA has the significance of establishing that the authority to detain enemy aliens in times of war is not a novel concept to the executive branch of our government.6

History has established that differences do, indeed, exist between the protections afforded citizens and resident enemy aliens, especially during times of war. Necessarily, the President’s war powers must be sufficient to adequately address national

6 The proposition that citizens and non-citizens possess

different degrees of constitutional rights has been established in other areas of the law as well. For example, in Matthews v. Diaz, 426 U.S. 67, 79-80 (1976), the Court explained that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”

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security and foreign policy concerns. The Supreme Court has observed that

“(A)ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”

Matthews v. Diaz, 426 U.S. 67, 81 n.17 (1976) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 11 588-89 (1952)). Against this backdrop, the Court turns to whether the AUMF authorizes the President’s detention of Petitioner.

C. Authorization for Use of Military Force The AUMF provides, in relevant part, that [t]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Pub. L. No. 107-40, 115 Stat. 24. Although Petitioner in the present case was

not captured on the battlefield in Afghanistan as was

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Mr. Hamdi, the Supreme Court’s opinion that the AUMF served as congressional authorization for his detention is applicable here. In holding that Mr. Hamdi’s detention was “necessary and appropriate . . to prevent any future acts of international terrorism against the United States,” AUMF, Pub. L. No. 107-40, 115 Stat. 24, the plurality noted,

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U.S., at 28, 63 S.Ct. 2. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’”) (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev.2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield . . . . It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character. . . . A prisoner of war is no convict; his imprisonment is a simple war measure.’” (citations omitted)); cf. In re

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Territo, 156 F.2d 142, 145 (9th Cir. 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released.” (footnotes omitted)).

Hamdi, 124 S.Ct. at 2640. As Respondent recognizes, “aliens who come to

the United States to support al Qaeda terror operations . . . are in the same position as the September 11th hijackers when the hijackers arrived in the United States. . . . [T]he AUMF emphasizes that the individuals and groups responsible for the ‘acts of treacherous violence’ that were committed on September 11, 2001, ‘continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States.’” (Resp’t Mem. In Opp’n of Summ. J. at 14 (quoting AUMF, Pub. L. No. 107-40, 115 Stat. 24).) Assuming for purposes of this motion only that all the facts asserted by Respondent are true, Petitioner attended an al Qaeda terror training camp and later, on September 10, 2001, entered this country to continue the battle that the September 11th hijackers began on American soil.7

The AUMF was enacted to allow the President to “use all necessary and appropriate force” to “protect United States citizens both at home and 7 It is important to note that Petitioner h 7 as been labeled by the President an enemy combatant, not because he is a Qatari citizen, but because of his alleged association with al-Qaeda terrorist activities.

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abroad.” AUMF, Pub. L. No. 107-40, 115 Stat. 24. This Court agrees with Respondent that “[b]ecause the AUMF was enacted in direct response to the September 11th attacks, Congress [ ] intended the scope of the AUMF to reach alien al Qaeda operatives who enter this country to commit hostile and war-like acts. (Resp’t Mem. in Opp’n to Summ. J. at 15.) Accordingly, this Court holds that Petitioner’s detention is proper pursuant to the AUMF and, thus, declines to reach the issue of whether the President possesses inherent authority to detain Petitioner.

D. Other Concerns 1. Petitioner’s Criminal Charges

Petitioner makes much of the fact that he was designated as an enemy combatant sixteen months after he was indicted on criminal charges. According to Petitioner, his detention as an enemy combatant was not necessary to thwart any war-like acts he may commit since he was already being held on criminal charges. However, Respondent maintains that the facts that led the President to designate Petitioner as an enemy combatant were developed while he was in custody on the pending criminal charges. Once that determination was made, Petitioner fell within military jurisdiction.

Such a situation can be likened to charges pending in state court: if, during the pendency of and investigation into the state charges, it is revealed that the defendant’s actions implicate federal charges, the state charges can be dismissed and the matter can be transferred to federal jurisdiction. It is unreasonable to think that federal charges cannot

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be brought against an individual simply because he is being held on pending state charges. The argument that Petitioner’s criminal charges necessarily preclude military jurisdiction is equally unsatisfactory.

Petitioner’s argument also fails because the purpose of detaining enemy combatants is not only to thwart any ongoing activities of terrorism, but, as stated above, to preclude the detainee from returning to those activities. Hamdi, 124 S.Ct. at 2640. It is certainly possible that Petitioner could have been acquitted of the criminal charges against him, thus allowing him to, as Respondent maintains, return to the service of the enemy.8 Accordingly, this Court declines to find that 14 Petitioner’s criminal charges prevent his present detainment as an enemy combatant.

This Court stated in Padilla that “[t]here can be no debate that this country’s laws amply provide for the investigation, detention and prosecution of citizen and non-citizen terrorists alike.” Padilla, 2005 WL 465691, at *12. Within that statement, however, is no implication that other options are unavailable to the Government when detaining non-

8 This Court recognizes the natural response 8 to this reasoning that, when a defendant is acquitted of criminal charges, society should not assume that he ever did nor that he will, in the future, engage in the activities for which he was charged. In this case, however, Petitioner was not charged with crimes of terrorism, and thus, an acquittal of various fraud charges does not lead to the conclusion that he will not, in the future, engage in acts of terrorism as alleged by the government.

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citizens. In fact, the cited portion of Justice Scalia’s dissent in Hamdi is prefaced with the assertion that “citizens have been charged and tried in Article III courts for acts of war against the United States even when their noncitizen coconspirators were not.” Hamdi, 124 S.Ct. at 2664 (Scalia, J., dissenting) (citing United States v. Fricke, 259 F. 673 (S.D.N.Y. 1919); United States v. Robinson, 259 F. 685 (S.D.N.Y. 1919); United States ex rel. Wessels v. McDonald, 265 F. 754 (E.D.N.Y.1920); Ex parte Quirin, 317 U.S. 1 (1942)). Thus, this Court’s statement in Padilla does not foreclose Petitioner’s detention.

2. Fact-finding Process Of course, today’s ruling does not close the

door of this Court to Petitioner. As stated above, this ruling is based upon the assumption that all the facts asserted by Respondent are true. It does not foreclose Petitioner’s opportunity to challenge those facts. “For more than a century the central meaning of procedural due process has been clear: ‘[p]arties whose rights are to be affected are entitled to be heard.’” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864).

The plurality in Hamdi leaves to the district courts the determination of the manner in which such due process proceedings must occur, stating

[w]e anticipate that a District Court [will] proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt

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that courts faced with these 15 sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.

Hamdi, 124 S.Ct. at 2652. This Court leaves that determination for another day.

VI. CONCLUSION In light of the foregoing discussion and

analysis, it is the judgment of this Court that Petitioner’s motion for summary judgment on counts one and three of his petition must be DENIED.

IT IS SO ORDERED. Signed this 8th day of July, 2005, in Spartanburg, South Carolina.

s/ Henry F. Floyd HENRY F. FLOYD UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION C. A. NO. 2:04-2257-HFF-RSC

ALI SALEH KAHLAH AL-MARRI, and MARK A. BERMAN, as next friend, Petitioners, vs. COMMANDER C.T. HANFT, USN Commander, Consolidated Naval Brig, Respondent. _________________________________________________

REPORT AND RECOMMENDATION _________________________________________________

I. INTRODUCTION

Pending before the Court is the petition of Ali Saleh Kahlah al-Marri’s (al-Marri or Petitioner)1 in accord with 28 U.S.C. § 2241 for habeas corpus relief. Petitioner is a Qatari and Saudi national who entered the United States legally and been declared an enemy combatant by the President of the United States. He is detained in the Naval Consolidated Brig near Charleston, South Carolina. This Court

1 Technically, there are two Petitioners in this case, one of whom is Mark A. Berman, al-Marri’s Next Friend. He is not being held as an enemy combatant. Thus, all references herein to “Petitioner” will be to Mr. al-Marri.

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has jurisdiction over the matter pursuant to 28 U.S.C. § 1331.

On July 8, 2004, Petitioner filed the present petition for writ of habeas corpus (Docket Number 1), raising five claims: 1) unlawful detention; 2) right to counsel; 3) right to be charged; 4) denial of due process; and 5) unlawful interrogation.2 The Respondent’s filed an Answer (Docket Number 11) as a Return to the Petition on September 9, 2004, and attached to the Return the President’s Order declaring Petitioner an enemy combatant (Exhibit A), an unclassified declaration of Mr. Jeffrey N. Rapp, Director, Joint Intelligence Task force for Combating Terrorism (Exhibit B), and a classified secret declaration of Mr. Rapp (Exhibit C). (Collectively with the subsequently unclassified Rapp declaration referred to as “Executive Branch Declaration”).

Subsequently, the Honorable Henry F. Floyd, United States District Judge, issued an Order on July 8, 2005 (Docket Number 30), denying and dismissing the petitioner’s third ground for relief which essentially was a challenge to the power of the President of the United States to subject civilians, albeit non-citizens, to indefinite military detention as enemy combatants. Judge Floyd’s Order fully outlines the procedural history leading up to the filing of this petition. Subsequently the matter was

2 The claims of right to counsel and unlawful interrogation are not cognizable in this habeas corpus petition. 28 U.S.C. § 2241. In fact those claims were recently settled in the petitioner’s civil rights case in this court. Al-Marri v. Rumsfeld, C. A. No. 2:05-2259-HFF-RSC. (See Complaint ¶¶ 65-67 and 68-73).

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remanded to the undersigned for consideration of habeas corpus relief.

Briefing was had as to the appropriate due process procedures, and Petitioner subsequently was ordered to respond to the Executive Branch Declaration. Thereafter Petitioner indicated an inability to respond because he was not permitted to see the classified declaration. Therefore Respondent was directed to revisit the classification of the declaration and was advised that the undersigned would not consider, at this preliminary stage, information which was not presented to Petitioner.

On April 5, 2006, Respondent filed a reply essentially declassifying3 the secret declaration of Mr. Rapp (Exhibit C). Counsel was afforded an opportunity to discuss the unclassified declaration with Petitioner and on May 5, 2006, Petitioner filed a reply to the declaration. II. STANDARD OF REVIEW

The procedures to be applied in considering a petition by an enemy combatant are unsettled, and the United States Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633 (2004), counseled,

In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are

3 The only portions of the affidavit remaining classified are parts of paragraph 21 and paragraphs 22, 23 and 24 of the 35 paragraph declaration.

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achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government’s case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government’s return. We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental.

542 U.S. at 538-5399, 124 S.Ct. at 2651-2652. After considering the briefs of the parties on the issue of the appropriate due process procedures, the court entered an order (Docket Number 41) providing that the due process procedures applicable would be as follows:

The burden of proof at all times remains on the government to show by clear and convincing evidence that petitioner is an enemy combatant; that is presents an identified and articulable threat to this country or possesses information important to the war on terror.

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That burden may be met incrementally. First the Government may meet its initial burden by the presentation of credible evidence, such as the Mobbs Affidavit in the Hamdi case, that the petitioner meets the enemy combatant criteria. After the presentation of such credible evidence by the government, the petitioner must rebut that evidence with more persuasive evidence that he falls outside the criteria. The purpose being to address the “risk of erroneous deprivation.” If the petitioner is unable to produce such evidence, the inquiry ends there. If the petitioner is able adequately to rebut the government’s initial showing, the decision of the Executive is entitled to less deference, and the petitioner must be released unless the government proceeds to a full-blown adversary hearing before a neutral decisionmaker. That adversarial hearing must be accompanied by greater procedural and evidentiary safeguards. At that adversarial hearing, the government must make a showing by clear and convincing evidence that the petitioner represents a continuing, present and grave danger to the national security of the United States and whose detention is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States. (i.e. a showing that the petitioner was engaged in conduct in preparation for acts of international terrorism with the aim

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to cause injury to or adverse effects on the United States, or possesses intelligence, including intelligence about personnel and activities of al Qaeda, that if communicated to the United States would aid efforts to prevent attacks by al Qaeda.) That is not to say, however, that the full panoply of procedures applicable to a trial should apply. For example, the Supreme Court has indicated that hearsay may be admissible, Hamdi at 2649, objections that evidence was obtained unlawfully under general criminal law or the Federal Rules of Evidence would be inappropriate to evidence gathered on the battle field, but might lie as to evidence obtained in the course of domestic war on terror. Wide ranging discovery under the Federal Rules of Civil Procedure is ill-suited to an inquiry into matters concerning national security or occurring in zones of combat half-a-world away, but might lie in a more narrow sphere to less sensitive domestic matters. After all the purpose of the due process hearing is to assure that the petitioner receive notice of the factual basis for his classification and a fair opportunity to rebut the government’s factual assertions before a neutral decisionmaker.

Order filed December 19, 2005 (Docket Number 41). Thus the standard of review at this level is limited to determining which is more persuasive on the issue of whether the petitioner falls outside the enemy combatant criteria, the government’s

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credible evidence or the responsive rebuttal evidence which the petitioner wishes to present. The purpose being to address the “risk of erroneous deprivation.” Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633 at 2649 (2004), (quoting Mathews v. Eldridge, 424 U.S. 319 at 335 (1976)). The procedure is not dissimilar to the incremental procedure applied to habeas corpus proceedings under the Rules Governing Habeas Corpus under 28 U.S.C. § 2255, and this stage is similar to the review directed under Rule 4 (b) of the Rules Governing § 2255 proceedings, “[t]he Judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.”

III. Executive Branch Declaration The Executive Branch Declaration makes the following assertions as relevant here:

A. Al-Marri trained at Bin Laden’s Afghanistan terrorist training camp for 15-19 months between approximately 1996 and 1998. Training typically involved training in use of poisons, among other things.

B. In the summer of 2001 al-Marri was introduced by Khalid Shaykh Muhammed, September 11th mastermind, to Usamu Bin Laden, and al-Marri offered to be an al Qaeda martyr or do anything else al Qaeda requested. He was directed to enter the United States as a “sleeper agent,” and to explore computer hacking methods to disrupt

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bank records and the U.S. financial system. Through this relationship al-Marri began receiving assistance from Mustafa Ahmed Al-Hawsawi, an al Qaeda financier who maintained contact with and provided logistical support and funds for the September 11th hijackers.

C. Mustafa Ahmed Al-Hawsawi met al-Marri in Dubai in August 2001 and provided him $10,000 to $13,000 and $3000 to purchase a laptop computer. These funds were authorized by Khalid Shaykh Muhammed.

D. Al-Marri moved his family to the United States in September 2001 ostensibly to begin studies towards a graduate degree in computer sciences at Bradley University in the Fall of 2001, but by December 2001 he rarely attended classes and was in a failing status. Al-Marri previously obtained a bachelor’s degree in business administration from Bradley University in 1991.

E. Analysis of al-Marri’s laptop computer revealed research regarding use of chemical weapons of mass destruction including bookmarks relating to the purchase of chemicals such as potassium cyanide, sodium cyanide, sulfuric acid, and arsenic. Other information found on al-Marri’s computer included references to instructions for making hydrogen cyanide, cyanide poisoning and antidotes, listings of chemical concentrations “Immediately Dangerous to Life and Health,” “Toxicity Profiles: Cyanides,” and other technical information concerning doses and lethal effects of various cyanides. Additional sites referenced on the computer involved computer hacking, computer

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identity masking, and the purchase and sale of credit card numbers.

F. Computer examination also revealed files concerning jihad, martyrdom, Arabic lectures by Bin Laden, and bookmarks to jihad and Taliban related websites, photographs of the September 11th terrorist attack on the World Trade Center and Arab prisoners of war held in Afghanistan, a map of Afghanistan and an animated cartoon of an airplane flying in the World Trade Center.

G. Further examination of al-Marri’s computer revealed over 1000 apparent credit card numbers stored in various computer files. Examination of credit card numbers led to the discovery of fraudulent charges to a business apparently established by al-Marri under an alias in Macomb, Illinois.

H. Examination of the inside of al-Marri’s computer carrying case revealed a listing of approximately thiry-six credit card account numbers with the names of the holders, expiration dates and designation of Mastercard or Visa. Al-Marri was not listed as an account holder for any card. Approximately one-half of the credit cards were issued by domestic banks to persons other than al-Marri and were either valid numbers or had been valid numbers.

I. Yahoo E-mail accounts admittedly belonging to al-Marri were created on a network operated by Western Illinois University in Macomb, Illinois, and three of the E-mail accounts contained draft E-mail messages to an E-mail account associated with Khalid Shaykh Muhammed. The

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messages were reporting on his enrollment in school and a telephone number at which al-Marri purportedly could be reached. The telephone number number, however, included a North Dakota area code and was not subscribed to by al-Marri. The number is alleged to be a coded version of al-Marri’s cell phone number.

J. Calling cards attributed to al-Marri were used in attempts to contact the United Arab Emirates telephone number of Mustafa Ahmed Al-Hawsawi. The calling cards were used from al-Marri’s cell phone, his home phone, and pay telephones in Chicago, Peoria and Springfield, Illinois.

IV. Al-Marri Petition In the Petition before this court, al-Marri

asserts as relevant here: A. Al-Marri and his family lawfully

entered the United States on September 10, 2001, for the purpose of his obtaining a master’s degree from Bradley University, the same institution from which he had earned a bachelor’s degree in 1991.

B. Al-Marri was arrested in December 2001 and was charged with possession of 15 more unauthorized or counterfeit credit card numbers, with intent to defraud, and making false statements to the FBI, making false statements in a bank application, and using a means of identification of another person for the purpose of influencing the action of a federally insured financial institution. He pled not guilty to all of these charges. The charges were subsequently dismissed on venue

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grounds, and al-Marri was re-indicted on the same charges in a proper jurisdiction. Al-Marri again pled not guilty.

C. On June 23, 2003, while a motion to suppress was pending in the criminal case, the indictments were dismissed in favor of the designation of al-Marri as an enemy combatant by the President of the United States.

D. Al-Marri asserts he is a civilian and not a combatant. V. Al-Marri Reply

In his reply to the Executive Branch Declaration, al-Marri asserts as relevant here:

A. He is a civilian who came to the United States lawfully to pursue a graduate degree at Bradley University.

B. He denies he came to the United States as an al Qaeda “sleeper agent” or he was otherwise a member of, or affiliated with, al Qaeda.

C. He generally denies the allegations contained in the Rapp declaration as well his designation as an “enemy combatant.”

D. He denies he entered the United States to commit “hostile or war-like acts,” including acts of terrorism, or he is otherwise a member of, or affiliated with, al Qaeda.

VI. DISCUSSION

It plainly appears from the pleadings, the attached exhibits, and the various declarations that

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the moving party is not entitled to relief, and the petition must be dismissed.

As noted the issue here is which is more persuasive on the issue of whether the petitioner falls outside the enemy combatant criteria, the government’s credible evidence or the responsive rebuttal evidence which the petitioner wishes to present, with special attention to the “risk of erroneous deprivation.” Here the petitioner presents nothing but a general denial to the Executive’s assertion of facts. Although he apparently has evidence he believes relevant, he refuses to present it before this court stating, “Petitioner respectfully declines at this time the Court’s invitation to assume the burden of proving his own innocence, a burden that is unconstitutional, unlawful and un-American.” Petitioner’s Response filed May 4, 2006 (Docket Number 68) (emphasis added).

The petitioner mistakes an order of this court for an invitation. He also forgets his status as the petitioner in a civil proceeding under 28 U.S.C § 2241 which he is obligated to prosecute. This failure to prosecute alone would justify dismissal of his petition. Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978).

Al-Marri brought this action and has now refused to participate in a meaningful way. As a result, there is nothing specific before the court to dispute even the simplest of assertions which al-Marri could easily dispute, were they not accurate. For example:

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A. Al-Marri presents no information concerning the source of his financial support while studying in this country to counter the government’s assertion that Mustafa Ahmed Al-Hawsawi met al-Marri in Dubai in August 2001 and provided him $10,000 to $13,000 and $3000 to purchase a laptop computer and that these funds were authorized by Khalid Shaykh Muhammed.

B. Al-Marri presents no information concerning his graduate studies and does not dispute or offer easily obtainable evidence to counter the assertion that by December 2001 he had rarely attended classes and was in a failing status despite having moved his family to the United States in September 2001 ostensibly for the purposes of pursuing an education.

C. Al-Marri does not deny or offer any explanation for why his laptop computer contained research regarding use of chemical weapons of mass destruction including bookmarks relating to the sulfuric acid, and arsenic. Nor does he deny or dispute that information found on his computer included references to instructions for making hydrogen cyanide, cyanide poisoning and antidotes, listings of chemical concentrations “Immediately Dangerous to Life and Health,” “Toxicity Profiles: Cyanides,” and other technical information concerning doses and lethal effects of various cyanides. Likewise there is no denial that sites referenced on the computer involved computer hacking, computer identity masking and the purchase and sale of credit card numbers.

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D. Al-Marri does not deny or offer any explanation for why his laptop computer contained files concerning jihad, martyrdom, Arabic lectures by Bin Laden, and bookmarks to jihad and Taliban related websites, photographs of the September 11th terrorist attack on the World Trade Center and Arab prisoners of war held in Afghanistan, a map of Afghanistan and an animated cartoon of an airplane flying into the World Trade Center.

E. Al-Marri does not deny or offer explanation for why his computer and computer carrying case included over a thousand credit card numbers and information which were not his. No denial is made concerning allegations of fraudulent business transactions, or a business apparently established by him. Nor does he provide any information explaining or denying his association with a telephone credit card being used in attempts to contact the United Arab Emirates telephone number of Mustafa Ahmed Al-Hawsawi.

F. Al-Marri does not attempt to explain the Yahoo E-mail accounts admittedly belonging to al-Marri which were created on a network operated by Western Illinois University in Macomb, Illinois, and which included draft E-mail messages to an E-mail account associated with Khalid Shaykh Muhammed relating information concerning his well being and contact numbers.

At the very least these un-rebutted facts demonstrate the lack of any effort on the part of the petitioner to establish the falsity of the Executive Branch Declaration, to demonstrate the possibility

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of an erroneous deprivation, or otherwise meet his burden of persuasion.

As the United States Supreme Court has indicated the issue at this stage is one of determining which presentation is more persuasive, the Executive Branch Declaration or Petitioner’s claims and rebuttals; the Executive Branch Declarations overwhelmingly prevail.

In deciding which is more persuasive, the undersigned has not considered such things as the number of declarations for one party or the other, or for that matter given weight based upon the source of the declarations or pleadings. Nor has greater weight been given to one pleading or the other based upon credibility since none of the declarations were sworn to, hearsay predominated and none carried any other independent indicia of truthfulness. The court did consider the extent to which the parties provided details within their capacity to provide them, how specific the assertions or denials were, how direct the responses were to the issues in this matter, and the extent to which a factual assertion tends to establish falsity in a pleading or points to the possibility of an erroneous deprivation.

In Hamdi Justice O’Connor wrote, We therefore hold that a citizen-

detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral

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decisionmaker. See Cleaveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’”) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 617, 113 S.Ct. 2264, 124 L.Ed.2d. 539 (1993) (“due process requires a ‘neutral and detached judge in the first instance’”) (quoting Ward v. Monroeville, 409 U.S. 57, 61-62, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’” Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233, 17 L.Ed. 531 (1864); Armstrong v. Manzo, 380 U.S.

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545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) (other citations omitted)).

542 U.S. at 533. The petitioner here has been given notice and

opportunity, but has responded with merely a general denial and an election not to further participate in these proceedings.

Neither due process nor the rule of law in general grant a party the right to participate only in the court procedures he deems best or to present his proof whenever it suits him. The petitioner’s refusal to follow “at this time” the orders of the court establishing fact-finding procedures that are intended to be both prudent and incremental is either a sophomoric approach to a serious issue, or worse, an attempt to subvert the judicial process and flout due process. The petitioner has squandered his opportunity to be heard by purposely not participating in a meaningful way.

VII. CONCLUSION Accordingly, while recognizing the importance

of respecting the acts of the Executive Branch in times of national emergency, and after providing the petitioner a threshold opportunity reasonable under the circumstances to contest the Executive Branch’s actions and factual assertions in an incremental and deliberate manner, it appears to the court that the Executive Declaration is more persuasive than the Petitioner’s general denial on the issue of whether the petitioner meets the enemy combatant criteria, and there is no basis for

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concluding that an erroneous deprivation has occurred.

Therefore it is recommended that the petition for habeas corpus relief herein be dismissed without further action.

Respectfully Submitted, /s/ Robert S. Carr United States Magistrate

Judge

Charleston, South Carolina May 8, 2006

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THE WHITE HOUSE WASHINGTON

TO THE SECRETARY OF DEFENSE AND THE ATTORNEY GENERAL: Based on the information available to me from all sources,

REDACTED

In accordance with the Constitution and consistent with the laws of the United States, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40); I, GEORGE W. BUSH, as President of the United States and Commander in Chief of the U.S. armed forces, hereby DETERMINE for the United States of America that:

(1) Ali Saleh Kahlah al-Marri, who is under the control of the Department of Justice, is, and at the time he entered the United States in September 2001 was, an enemy combatant;

(2) Mr. al-Marri is closely associated with al Qaeda, an international terrorist organization with which the United States is at war;

(3) Mr. al-Marri engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States;

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(4) Mr. al-Marri possesses intelligence, including intelligence about personnel and activities of al Qaeda that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda on the United States or its armed forces, other governmental personnel, or citizens;

(5) Mr. al-Marri represents a continuing, present, and grave danger to the national security of the United States, and detention of Mr. al-Marri is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens;

(6) It is in the interest of the United States that the Secretary of Defense detain Mr. al-Marri as an enemy combatant; and

(7) It is, [REDACTED] consistent with U.S. law and the laws of war for the Secretary of Defense to detain Mr. al-Marri as an enemy combatant.

Accordingly, the Attorney General is directed to surrender Mr. al-Marri to the Secretary of Defense, and the Secretary of Defense is directed to receive Mr. al-Marri from the department of Justice and to detain him as an enemy combatant. DATE: /s/____________________ White House Office-controlled Document 6/23/03

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SECRET//NOFORN

SECRET//NOFORN

Declassified on April 5, 2006

Classified Declaration of Mr. Jeffrey N. Rapp Director, Joint Intelligence Task Force for

Combating Terrorism

1. (U) Pursuant to 28 U.S.C. § 1746, I, Jeffrey N. Rapp, hereby declare that, to the best of my knowledge, information and belief, and under the penalty of perjury, the following is true and correct:

Preamble 2. (U) I submit this Declaration for the Court’s

consideration in the matter of Al-Marri v. Hanft, Case Number 2:04-2257-26AJ, pending in the United States District Court for the District of South Carolina.

3. (U) Based on the information that I have acquired in the course of my official duties, I am familiar with all the matters discussed in this Declaration. I am also familiar with the interviews of Ali Saleh Mohamed Kahlah Al-Marri (Al-Marri) conducted by agents of the Federal Bureau of Investigation and by personnel of the Department of Defense (DoD) once the DoD took custody of Al-Marri on 23 June 2003 after he was declared an enemy combatant by the President of the United States.

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SECRET//NOFORN

SECRET//NOFORN


Professional Experience as an Intelligence Officer

4. (U) I am a career Defense Intelligence Agency Defense Intelligence Senior Executive Service member appointed by the Director of the Defense Intelligence Agency. I report to the Director of the Defense Intelligence Agency. My current assignment is as the Director of the Joint Intelligence Task Force for Combating Terrorism (JITF-CT). JITF-CT directs collection, exploitation, analysis, fusion, and dissemination of the all-source foreign terrorism intelligence effort within the DoD. In addition to my current assignment, I have previously served as the first Director of the National Media Exploitation Center and as the civilian Deputy Director for the Iraq Survey Group on Qatar.

5. (U) My active duty military intelligence career in the United States Army included service as the senior intelligence officer for the 1st Infantry Division, when deployed to Bosnia-Herzegovina; Commander of the 101st Military Intelligence Battalion, 1st Infantry Division, Fort Riley Kansas; Commander of the forward-deployed 205th Military Intelligence Brigade in Europe; and Deputy Director for the Battle Command Battle Lab, U.S. Army Intelligence

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SECRET//NOFORN

SECRET//NOFORN


Center at Fort Huachuca, Arizona. I also directed a South Asia regional analytic division in the Defense Intelligence Agency Directorate for Analysis and Production that was awarded the National Intelligence Meritorious Unit Citation for its accomplishments.

6. (U) My military decorations include the Legion of Merit, Defense Superior Service Medal, Defense Meritorious Service Medal, and Army Meritorious Service Medal. I am a graduate of the U.S. Army War College. I hold a Masters degree in strategic intelligence from the Joint Military Intelligence College.

Declaration of Al-Marri as an Enemy Combatant

7. (U) On June 23, 2003, President George W. Bush determined that Al-Marri is an enemy combatant. The President’s determination was based on information derived from several Executive Branch agencies in a multi-layered Executive Branch evaluation. The evaluation process applied to Al-Marri is essentially the same as that for United States citizens suspected of being enemy combatants. See generally 150 Cong. Rec. S2701, S2703-S2704 (daily ed. March 11, 2004) (reprinting Feb. 24, 2004, remarks of Alberto R. Gonzales, Counsel

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SECRET//NOFORN

SECRET//NOFORN


to the President, before the American Bar Association’s Standing Committee on Law and National Security). As a general matter, the process involves assessments by the following agencies: Central Intelligence Agency, Department of Defense, Department of Justice, and the White House. First, following an initial assessment that a detainee might be an enemy combatant, the Director of Central Intelligence makes a written recommendation to DoD concerning whether DoD should take the detainee into custody. The Secretary of Defense then makes a second written assessment based on the CIA’s report and intelligence developed by DoD, and provides that assessment (accompanied by the CIA and DoD reports) to the Attorney General. The Attorney General, in turn, provides DoD with a recommendation concerning whether the detainee should be taken into custody as an enemy combatant, as well as an opinion concerning the lawfulness of such an action. The Attorney General’s recommendation is informed by the CIA and DoD reports as well as a memorandum from the Department of Justice’s Criminal Division setting forth factual information concerning the detainee supplied by the FBI, and a formal legal opinion from the Department’s Office of Legal Counsel (OLC) analyzing whether

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SECRET//NOFORN

SECRET//NOFORN


petitioner is appropriately designated an enemy combatant. The Attorney General’s recommendation package to the Secretary includes the Criminal Division’s fact memorandum and OLC’s legal opinion. The Secretary forwards to the President a package containing all of the foregoing material. White House counsel reviews the package, makes his own assessment, and provides the materials (including his own assessment) to the President. The President then determines on the basis of the foregoing whether the detainee is an enemy combatant. Overview

8. (S//NF) Al-Marri, also know as Abdulkareem A. Almuslam, is currently being detained in the Naval Consolidated Brig in Charleston, South Carolina. The President of the United States has determined that he is closely associated with al Qaeda, an international terrorist organization with which the United States is at war. As detailed below, Al-Marri is an al Qaeda “sleeper” agent sent to the United States for the purpose of engaging in and facilitating terrorist activities subsequent to September 11, 2001. Al-Marri currently possesses information of high intelligence value, including information about personnel and activities of al Qaeda.

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SECRET//NOFORN

SECRET//NOFORN


Prior to arriving in the United States on September 10, 2001, Al-Marri met personally with Usama Bin Laden (Bin Laden) and volunteered for a martyr mission or to do anything else that al Qaeda requested. Al-Marri was assisted in his al Qaeda assignment to the United States by at least two high-level al Qaeda members: September 11, 2001 mastermind Khalid Shaykh Muhammed (KSM); and al Qaeda financier and September 11, 2001 moneyman Mustafa Ahmed Al-Hawsawi (Al-Hawsawi). Al Qaeda sent Al-Marri to the United States to facilitate other al Qaeda operatives in carrying out post-September 11, 2001 terror attacks. Al Qaeda also asked Al-Marri to explore computer hacking methods to disrupt bank records and the U.S. financial system. In addition, Al-Marri was trained by al Qaeda in the use of poisons and had detailed information concerning poisonous chemicals stored on his laptop computer. Information about Al-Marri’s relationship with and activities on behalf of al-Qaeda has been obtained from and corroborated by multiple intelligence sources.

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Al-Marri’s Background and Training

9. (U) Al-Marri is a dual national of Saudi Arabia and Qatar. Al-Marri attended college in the United States; in 1991, he obtained a bachelor’s degree in business administration from Bradley University in Peoria, Illinois.

10. (S//NF) Al-Marri trained at Bin Laden’s Afghanistan terrorist training camps for 15-19 months between approximately 1996 and 1998. Among other things, al-Marri received training in the use of poisons at an al-Qaeda camp.1

11. (U) Al-Marri entered the United States with his family on September 10, 2001, purportedly to pursue a graduate degree in computer science at Bradley University. School officials at Bradley reported that Al-Marri contacted them in July 2001 about beginning his studies during the Fall 2001 semester. The school officials felt

1 (S//NF) This statement is derived from specific intelligence sources. This declaration does not identify the specific source of such information. Such information would be highly classified and would require significant additional security procedures, including additional clearances and storage and handling restrictions that it is my understanding are not currently in place. That information could be provided to the Court if the Court deems it necessary.

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SECRET//NOFORN


that Al-Marri was in a rush to commence his studies in the United States. By December 11, 2001, when the FBI interviewed Al-Marri, he had rarely attended classes and was in failing status. Al-Marri’s al Qaeda Activities

12. (S//NF) While Al-Marri seemingly entered the United States in order to pursue his education, in fact, he had been directed by al Qaeda to enter the country as a sleeper agent. In the summer of 2001, KSM introduced Al-Marri to Bin Laden. During his meeting with Bin Laden, Al-Marri offered to be an al Qaeda martyr or to do anything else that al Qaeda requested. Bin Laden and KSM agreed that Al-Marri would travel to the United States to establish cover. Al Qaeda instructed Al-Marri that is was imperative that he arrive in the United States prior to September 11, 2001, and that if Al-Marri could not do so, that he should cancel all plans and go to Pakistan. KSM subsequently communicated with Al-Marri’s brother, Jaralla Saleh Mohamed Kahla Al-Marri, who is currently being detained as an enemy combatant by the United States at Guantanamo Bay, Cuba, about Al-Marri’s activities in the United States.

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13. (S//NF) KSM considered Al-Marri an ideal sleeper agent for the United States, because Al-Marri had completed his undergraduate degree in the United States, had no known criminal record, and had a family with whom he could travel (thus lessening scrutiny relative to a male traveling alone). The al Qaeda leadership was also attracted to Al-Marri’s profile because it differed significantly from that of the September 11, 2001 hijackers. In addition to acting as a point of contact for al Qaeda operatives arriving in the United States, al Qaeda instructed Al-Marri to explore possibilities for hacking into the main-frame computers of banks with the objective of wreaking havoc on U.S. banking records and thus damaging the country’s economy.

14. (S//NF) Al Qaeda asked Al-Hawsawi to assist Al-Marri. Al-Hawsawi operated out of the United Arab Emirates (UAE) until September 2001. While in the UAE, Al-Hawsawi provided logistical support for the September 11, 2001 hijackers, as well as maintained contact with the hijackers’ ringleader, Mohamed Atta. Al-Hawsawi also served as a conduit for the funds to the hijackers while they were in the United States.

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15. (S//NF) Al-Marri traveled to the UAE at al Qaeda’s request in August 2001. Al-Hawsawi met him at the Dubai airport. While in Dubai, Al-Hawsawi provided Al-Marri with approximately $10,000-$13,000 based on Al-Marri’s word that KSM had authorized the expenditure. Al-Hawsawi called KSM later to verify the authorization. Al-Hawsawi also gave Al-Marri an additional approximately $3,000 to purchase a laptop computer. This laptop computer, along with the receipt for its purchase, was later recovered from Al-Marri’s residence in Peoria, Illinois. Analysis of Laptop Computer

16. (U) The FBI interviewed Al-Marri in Illinois on October 2, 2001, and again on December 11, 2001. Subsequent to the second of these interviews, the FBI conducted a forensic examination of Al-Marri’s aforementioned laptop computer. The results of that examination are discussed by category below.

A. Chemical Research 17. (S//NF) The analysis of Al-Marri’s laptop

computer revealed that Al-Marri was conducting research consistent with the tradecraft and teachings associated with al

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Qaeda and other terrorist organizations regarding use of chemicals as weapons of mass destruction. Numerous files and bookmarked internet sites were found relating to the research and purchase of chemicals, specifically potassium cyanide, sodium cyanide, sulfuric acid, and arsenic. A computer folder titled “chem” contained favorite bookmarked websites to include the sites of industrial chemical distributors. This folder also contained the Occupational Safety and Health Administration (OSHA) website homepage, and a website listing “Immediately Dangerous to Life and Health” (IDLH) chemical concentrations. Other internet sites visited by Al-Marri included the topics of “The Manufacture of Hydrogen Cyanide,” giving step-by-step instructions to make hydrogen cyanide; “Cyanide Poisoning and Cyanide Antidotes,” giving technical and medical descriptions of the effects of various cyanides; and “Toxicity Profiles: Cyanides,” giving technical data on the doses and lethal effects of various cyanides.

18. (S//NF) The investigation has revealed that computer searches conducted by Al-Marri were primarily devoted to technical and ordering information on various cyanides. However, his interest in cyanides is incongruous with Al-

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Marri’s educational and professional experience. Furthermore, the highly technical information found on Al-Marri’s laptop computer far exceeds the interests of a merely curious individual. Al-Marri’s interest in cyanide appears consistent with the documented interests of al Qaeda and other terrorist groups in the use of cyanides. For example, Al-Marri’s interest in the two cyanide salts, potassium cyanide and sodium cyanide, are known precursors to the formation of hydrogen cyanide and are a relatively safe means of handling cyanide. Hydrogen cyanide is an exceedingly toxic substance. The use of this substance was taught at terrorist training camps in Afghanistan. In addition, Al-Marri’s interest in sulfuric acid is noteworthy as sulfuric acid is specified in terrorist training and is utilized as the second ingredient in a hydrogen cyanide binary device. In the attacks on the Japanese subway system, Aum Shinrikyso used sulfuric acid with hydrogen cyanide in improvised dissemination devices. B. Communication Tactics

19. (U) According to internet service provider records, on September 22, 2001, five email accounts, which Al-Marri later stated belonged to him, were created from the same computer

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during one log-on session. The accounts were [email protected], Jefferson038@hot mail.com, [email protected], Drake [email protected], and [email protected]. The computer on which these email accounts were created was part of the network operated by Western Illinois University in Macomb, Illinois.

20. (S//NF) Among the messages located in the [email protected], [email protected], and [email protected] email accounts were three identical draft email messages written in English on September 22, 2001. These three messages were all addressed to the same internet email account – an account that has been linked to KSM – and appear not to have been sent, but rather stored in “draft” form. The identical email messages were as follows, with all errors as in the originals: “hi

I hope every thing is ok with you and your family. I have started school ok. It is hard but I had to take 9 hours to meet the school standard. Me and my family are ok. I want to here from you soon

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can you contact me by email or on 701-879-6040.

P.S. I have tried to contact you at your

uncle ottowa but I could not get in.”

21. (S//NF) In the United States, the area code 701 is assigned to North Dakota. However, subscriber checks for telephone number 701-879-6040 were negative. Upon further analysis, it was determined that telephone number 701-879-6040 is a coded version of Al-Marri’s cellular telephone number. [REDACTED]

22. (S//NF) [REDACTED] 23. (S//NF) [REDACTED] 24. (S//NF) [REDACTED]

C. Additional Computer Files

25. (U) Analysis of Al-Marri’s laptop revealed computer files containing Arabic lectures by Bin Laden and his associates on the importance of jihad and martyrdom, and the merits of the Taliban regime in Afghanistan. These lectures instructed that Muslim scholars should organize opposition to Jewish and Christian control of Palestine, Lebanon, and Saudi

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Arabia; that ordinary Muslims should train in Bin Laden camps in Afghanistan by entering through Pakistan; and that clerics who claim that Islam is a religion of peace should be disregarded. There were also computer files containing lists of websites titled “Jihad arena,” “Taliban,” “Arab’s new club – Jihad club,” “Tunes by bullets,” and “martyrs.” Other computer folders contained additional favorite bookmarked websites, including sites related to weaponry and satellite equipment.

26. (U) Photographs of the September 11, 2001 terrorist attacks on the World Trade Center were also discovered on the computer along with various photographs of Arab prisoners of war held by authorities in Kabul, Afghanistan; an animated cartoon of an airplane flying at the World Trade Center; and a map of Afghanistan.

27. (S//NF) In addition, Al-Marri’s laptop computer contained numerous computer programs typically utilized by computer hackers; “proxy” computer software which can be utilized to hide a user’s origin or identity when connected to the internet; and bookmarked lists of favorite websites apparently devoted to computer hacking. Al Qaeda had tasked Al-Marri with exploring the possibility of hacking into the

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main frame computers of banks inside the U.S. to wipe out balances and otherwise wreak havoc with banking records in order to damage the U.S. economy. Al-Marri had discussed with al Qaeda other hacking operations as well, including hacking into the computers of banks and credit card companies, obtaining credit card account numbers, and using these numbers to book airline reservations on five or six flights. This was in accord with the belief that fully booking flights with false reservations would result in losses to the airline industry. Telephone Communications

28. (U) After the terrorist attacks of September 11, 2001, calling cards attributed to Al-Marri were utilized in attempts to contact the United Arab Emirates (UAE) telephone number of Mustafa Ahmed Al-Hawsawi (the “Al-Hawsawi number”). Analysis of Al-Marri’s cellular telephone records indicated that Al-Marri utilized cell sites during some of the same times and in the same geographical areas as the attempted calls to the Al-Hawsawi number.

29. (U) On September 23, 2001, a telephone call was attempted from a pay telephone in a store in Peoria, Illinois to the Al-Hawsawi number.

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The calling card used for that call was used again four days later, on September 27, 2001, from a cellular telephone subscribed to by Al-Marri. Thereafter, on October 14, 2001 the same calling card was used again from a pay telephone in a gas station in Springfield, Illinois (approximately sixty-five miles from Peoria) to the Al-Hawsawi number. During the same time period and on the same day, Al-Marri’s cellular telephone utilized cell sites in Springfield and Lincoln (approximately 20 miles north of Springfield), Illinois.

30. (U) Approximately three weeks later, on November 4, 2001, a different calling card was used from a pay telephone in Chicago, Illinois to attempt a call to the Al-Hawsawi number. On the same day, Al-Marri’s telephone records indicate that Al-Marri’s cellular telephone utilized sites in Chicago to access its voicemail system and to call Al-Marri’s home telephone number. The calling card used on November 4, 2001, was then used again three days later to place a call from Al-Marri’s home telephone number. Credit Card Theft

31. (U) Upon the seizure of his laptop computer, Al-Marri provided the computer carrying case.

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Within the case a folded two-page handwritten document was found that listed approximately thirty-six credit card numbers, the names of the account holders, an indication as to whether each credit card number was Visa or Mastercard, and the expiration dates. The expiration dates on the list reflected past expiration dates for each of the cards. Al-Marri was not listed as the account holder for any of the approximately thirty-six cards. Approximately seventeen of the thirty-six credit card numbers were issued by domestic banks. Based on the records of the issuing domestic banks, the credit card numbers were either currently valid or were once valid and were issued to persons other than Al-Marri.

32. (U) During the forensic examination of Al-Marri’s laptop computer, computer files containing over 1,000 apparent credit card numbers were found stored in various computer files. The examination of Al-Marri’s laptop computer also revealed computer folders called “hack,” “id,” “crack,” “final,” and “online store,” among others. These computer folders contained a list of numerous favorite bookmarked internet websites relating to computer hacking; fake driver’s licenses and other fake identification cards; buying and

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SECRET//NOFORN


selling credit card numbers; and processing credit card transactions. When agents visited an internet website that was bookmarked in the “hack” folder of Al-Marri’s laptop computer, the internet website appeared to be an electronic bulletin board that allows internet users to post and advertise messages. Topics advertised on this website included: “sale CC,” “I buy cc (with exp. data not less than 2003)”; “I will buy credit Card”; “I sell new creditcard (Visa, maser, expres…)”; “Credit card for sae. 0.3 $/1cc w/o CVV”; and “I sell #cc without cvv2.” As a result of the information discovered within Al-Marri’s laptop computer and carrying case, the material witness warrant was vacated and Al-Marri was immediately taken into custody pursuant to a charge of unauthorized possession of credit card numbers with intent to defraud, in violation of 18 USC § 1029(a)(3). In February 2002, Al-Marri was indicted on this charge in the SDNY. Analysis of Credit Card Numbers

33. (U) Fraudulent purchases at “AAA Carpet” were identified on several of the credit card numbers that were in Al-Marri’s possession. “AAA Carpet” has been determined to be a fraudulent business for which an individual named Abdulkareem A. Almuslam opened bank accounts in Macomb, Illinois, in July and

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August 2000. Signature cards and account applications from the three banks in Macomb, Illinois, at which Almuslam opened accounts have significant similarities to the signatures of Al-Marri on his passport and other documents. In addition, an eye doctor in the area identified Al-Marri in a photographic array as a patient the doctor treated under the name Almuslam. Latent print analysis of original documents from the banks and the eye doctor’s office resulted in three positive fingerprint identifications of Al-Marri. During this time period, Al-Marri, aka Almuslam, also opened an account to process credit card transactions for AAA Carpet. Records for this account indicate that twelve credit cards were processed for AAA Carpet during the time the account was active. All twelve transactions were later voided after the true cardholders notified their credit card providers of the fraudulent charges. Investigation to date has confirmed six of the twelve credit cards that received charges to AAA Carpet were found within Al-Marri’s laptop computer. Al-Marri, aka Almuslam, also created an account on June 13, 2000 with PayPal.com, an internet service that allows the electronic transfer of funds to anyone who possesses an email account.

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34. (U) As a result of the above investigation, a second indictment was filed in SDNY on January 22, 2003 against Al-Marri alleging two counts of making false statements to federal agents for denying his calls to the UAE telephone number of Al-Hawsawi and for not advising of his travel to the United States in 2000, in violation of 18 USC § 1001 (a)(1) and (2); three counts of making false statements to a financial institution for opening bank accounts under a false name, in violation of 18 USC § 1014; and one count of using a means of identification of another person for unauthorized use of a social security account number to open a bank account, in violation of 18 USC § 1028(a)(7). The two indictments against Al-Marri were subsequently consolidated. In April 2003, Al-Marri withdrew his waiver of venue, which allowed him to be tried in the SDNY; he was then indicted on May 22, 2003 in the Central District of Illinois on the same seven charges. Conclusion

35. (U) In conclusion, investigation has determined that Al-Marri was an active al Qaeda operative at the time of his entry into the United States on September 10, 2001. Al-Marri was sent to the United States at the behest of al Qaeda.

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Upon his arrival in the United States, Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States. Al-Marri’s status has been subject to a rigorous review process and it has been determined that Al-Marri represents a continuing grave danger to the national security of the United States. Al-Marri must be detained to prevent him from aiding al Qaeda in its efforts to attack the United States, its armed forces, other governmental personnel, or citizens.

/s/_______________________ Jeffrey N. Rapp Director, Joint Intelligence Task Force for Combating Terrorism

Executed on 9 September 2004 in Washington, D.C.

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Authorization for Use of Military Force September 18, 2001

Public Law 107-40 [S. J. RES. 23]

107th CONGRESS JOINT RESOLUTION

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

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Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE. This joint resolution may be cited as the ‘Authorization for Use of Military Force’.

SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

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(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Approved September 18, 2001.

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8 U.S.C. § 1226a. Mandatory detention of suspected terrorists; habeas corpus; judicial review (a) Detention of terrorist aliens

(1) Custody The Attorney General shall take into custody any alien who is certified under paragraph (3). (2) Release Except as provided in paragraphs (5) and (6), the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. Except as provided in paragraph (6), such custody shall be maintained irrespective of any relief from removal for which the alien may be eligible, or any relief from removal granted the alien, until the Attorney General determines that the alien is no longer an alien who may be certified under paragraph (3). If the alien is finally determined not to be removable, detention pursuant to this subsection shall terminate. (3) Certification The Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien-- (A) is described in section 1182(a)(3)(A)(i), 1182(a)(3)(A)(iii), 1182(a)(3)(B), 1227(a)(4)(A)(i), 1227(a)(4)(A)(iii), or 1227(a)(4)(B) of this title; or (B) is engaged in any other activity that endangers the national security of the United States.

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(4) Nondelegation The Attorney General may delegate the authority provided under paragraph (3) only to the Deputy Attorney General. The Deputy Attorney General may not delegate such authority. (5) Commencement of proceedings The Attorney General shall place an alien detained under paragraph (1) in removal proceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Attorney General shall release the alien. (6) Limitation on indefinite detention An alien detained solely under paragraph (1) who has not been removed under section 1231(a)(1)(A) of this title, and whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person. (7) Review of certification The Attorney General shall review the certification made under paragraph (3) every 6 months. If the Attorney General determines, in the Attorney General's discretion, that the certification should be revoked, the alien may be released on such conditions as the Attorney General deems appropriate, unless such release is otherwise prohibited by law. The alien may request each 6

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months in writing that the Attorney General reconsider the certification and may submit documents or other evidence in support of that request. (b) Habeas corpus and judicial review (1) In general Judicial review of any action or decision relating to this section (including judicial review of the merits of a determination made under subsection (a)(3) or (a)(6)) is available exclusively in habeas corpus proceedings consistent with this subsection. Except as provided in the preceding sentence, no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any such action or decision. (2) Application (A) In general Notwithstanding any other provision of law, including section 2241(a) of Title 28, habeas corpus proceedings described in paragraph (1) may be initiated only by an application filed with-- (i) the Supreme Court; (ii) any justice of the Supreme Court; (iii) any circuit judge of the United States Court of Appeals for the District of Columbia Circuit; or (iv) any district court otherwise having jurisdiction to entertain it. (B) Application transfer

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Section 2241(b) of Title 28 shall apply to an application for a writ of habeas corpus described in subparagraph (A). (3) Appeals Notwithstanding any other provision of law, including section 2253 of Title 28, in habeas corpus proceedings described in paragraph (1) before a circuit or district judge, the final order shall be subject to review, on appeal, by the United States Court of Appeals for the District of Columbia Circuit. There shall be no right of appeal in such proceedings to any other circuit court of appeals. (4) Rule of decision The law applied by the Supreme Court and the United States Court of Appeals for the District of Columbia Circuit shall be regarded as the rule of decision in habeas corpus proceedings described in paragraph (1). (c) Statutory construction. The provisions of this section shall not be applicable to any other provision of this chapter. CREDIT(S) (June 27, 1952, c. 477, Title II, ch. 4, § 236A, as added Oct. 26, 2001, Pub.L. 107-56, Title IV, § 412(a), 115 Stat. 350.)

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23040 aclu apx part 1 · before williams, chief judge, and w ilkin-son, niemeyer, michael, motz,...

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