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Government Continues Assault on Writ of Habeas Corpus

Ali Saleh Kahlah Al-Marri is a resident alien in the United States. He was
arrested in this country and labeled an “unlawful enemy combatant.” He has
an appeal pending before the Fourth Circuit Court of Appeals. This appeal
raises several significant issues:

Can the provisions of the Military Commissions Act which foreclose habeas
corpus relief to an “enemy combatant” be applied to an individual who has
not been “properly determined” to be an enemy combatant?

Can a United States citizen or resident arrested far removed from any field
of battle and not associated with any “armed conflict” against the United
States be designated as an enemy combatant?

The Military Commissions Act [Public Law No. 109-366] took effect on
October 17, 2006. The primary Congressional intent for the piece of
legislation was to remove “federal court jurisdiction over pending or future
habeas corpus” and to deny other form of judicial relief to that class of
people who have been designated by the President, or members of his
Executive Branch, as “enemy combatants” [also called “detained aliens” or

The Government is arguing before the Fourth Circuit that these restrictive
provisions apply in the Al-Marri case. The World Organization of Human
Rights-USA is arguing before the appeals court that the MCA does not apply
to Al-Marri because he does not “fit within the specific category of
individuals stipulated for coverage under the Act.” Specifically, Al-Marri
had not been “properly determined” to be an unlawful enemy combatant.

The MCA cannot be applied to a United States citizen or resident because

these individuals are protected by the United States Constitution. Human
Rights-USA said that Al-Marri was arrested in this country “for what may
be criminal activities” but that he has never taken part on a field of battle “in
the type of international or internal armed conflict that would provide a
legitimate and recognized basis for an unlawful enemy combatant
If the Government is successful in its effort to apply the MCA to Al-Marri, it
would raise serious constitutional issues for all U.S. resident aliens who
enjoy the same rights and constitutional protections as U.S. citizens.

Section 7(a) of the Military Commissions Act (MCA) specifically states that
federal courts do not have habeas corpus jurisdiction in those cases of “an
alien detained by the United States who has been determined by the United
States to have been properly detained as an unlawful enemy combatant or is
awaiting such designation.”

By its own terms, the MCA does not apply to people like Al-Marri who have
not been “properly determined to be an unlawful enemy combatant.” United
States residents, who may be arrested in this country for suspected criminal
activity (even if those activities are not in the interests of the United States)
and who have never been on a battle field linked to an internationally
recognized armed conflict cannot be properly designated as an unlawful
enemy combatant.

In Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54
S.Ct. 231, 78 L.Ed. 413 (1934) held that the war power “is a power to wage
war successfully, and thus it permits the harnessing the entire energies of the
people in a supreme cooperative effort to save the nation. But even the war
power does not remove constitutional limitations safeguarding essential
liberties.” See also: Hamdi v. Rumsfeld, 542 U.S. 507, 536, 124 S.Ct. 2633,
2650 (2004).

The Hamdi court said that “while we do not question that our due process
assessment must pay keen attentions to the burdens faced by the Executive
in the contest of military action, it would turn our system of checks and
balances on its head to suggest that a citizen could not make his way to court
with a challenge to the factual basis for his detention by his Government,
simply because the Executive opposes making available such a challenge.
Absent suspension of the writ [of habeas corpus] by Congress, a citizen
detained as an enemy combatant is entitled to this process.” Id., 542 U.S. at

Human Rights-USA pointed out that the only times U.S. citizens have been
designated as enemy combatants was during the Civil War and during World
War II when German saboteurs were captured in this country. “Both of these
situations were associated with armed conflicts of an international or internal
character that meet international legal standards that allow unlawful enemy
combatant designations to be applied,” Human Rights-USA informed the
Fourth Circuit.

The United States Supreme Court one-hundred and forty years ago held that
U.S. residents and citizens could not be treated as enemy combatants and
subjected to military trials when civilian courts were “open and their process
unobstructed” and there was no “actual and present” need for denying these
citizens/residents constitutional protections. See, Ex parte Milligan, 71 U.S.
2 (1866). The Supreme Court in Hamdi stressed the significance that
“Milligan was not a prisoner of war; but a resident of Indiana arrested while
at home there.” Id., 542 U.S. at 522.

These same standards, argued Human Rights-USA, should apply in equal

measure to any attempt by the Government to designate Al-Marri as an
unlawful enemy combatant and thus deny him his habeas corpus and due
process rights. The Human Rights group specifically instructed the Fourth

“In a number of other situations where Congress has attempted to restrict

access to habeas corpus or other judicial remedies, the courts have made
clear that petitioners with some type of reasonable legal or constitutional
claims can not be placed in a situation where they have no judicial forum
available to them, and no reasonable method for bringing their claims before
the courts. Especially in the context of refugee and immigration cases, the
courts have found that habeas stripping language in Congressional statutes
could not be given effect, and would violate due process standards,
especially for citizens or residents of the U.S., if the result would leave
petitioners without any means for pursuing their claims and protecting their
vested rights and protections in the federal courts. As is true in the present
case, the issue is not simply whether one particular type of remedy or
another can or should be used, but the more fundamental question of
whether Congress can take action that would adversely affect vested rights
while stripping the petitioners of any reasonable and effective means for
protecting their interests before the federal courts, leaving them with no
meaningful judicial remedy whatsoever.” See: INS v. St.Cyr, 533 U.S. 289,
364 (2001); Calcano-Martinez v. INS, 121 S.Ct. 2268 (2001). See also:
Goddard v. Frazier, 156 F.2d 938 (10th Cir. 1946)[citing Campbell v. Holt,
115 U.S. 620 (1885)].
The dilemma faced by individuals like Al-Marri is that despite being a legal
U.S. resident with a right to full constitutional protections, they would find
themselves in custody as “unlawful enemy combatants” and, under the
MCA, would not have access to any court to present a habeas corpus petition
challenging the legality of their detention or any other lawsuit challenging
conditions of that detention. These individuals, without any determination of
“guilt” being made against them, would remain isolated in military detention
for years without any rights or protections.

The President of the United States, under no circumstances, should have the
power and authority to subject United States citizens or residents to this kind
of deplorable treatment. The President is not King – and Congress should
never vest him with the “King’s prerogative.”