Page:Judicial Activity Concerning Enemy Combatant Detainees -- Major Court Rulings .pdf/11

Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings sentenced to 17 years and three months' imprisonment, the trial court having rejected his motion to dismiss charges against him due to his alleged mistreatment at the hands of the military.

al-Marri v. Pucciarelli, 534 F.3d 213 (2008) (per curiam)

In al-Marri, the Fourth Circuit sitting en banc considered whether the AUMF and the law of war permit the detention of a resident alien alleged to have engaged in activities within the United States in support of Al Qaeda, but who had not been part of the conflict in Afghanistan. Four of the nine judges would have held that even if the allegations were true, al-Marri did not fit within the legal category of "enemy combatant" within the meaning of Hamdi, and that the government could continue to hold him only if it charged him with a crime, commenced deportation proceedings, or obtained a material witness warrant in connection with grand jury proceedings (as a majority of the original three-judge panel had found). A plurality of the fractured en banc court, however, found that the AUMF and the law of war give the President the power to detain persons who enter the United States as "sleeper agents" on behalf of Al Qaeda for the purpose of committing hostile and war-like acts such as those carried out on 9/11 (although the judges did not arrive at a common definition of "enemy combatant"). The case was remanded to the district court for further consideration of the evidence to determine whether the government had established that al-Marri was a sleeper agent.

The en banc panel also considered the evidentiary burden that the government would be required to fulfill to detain al-Marri as an enemy combatant. In his controlling opinion, Judge Traxler wrote that the lower court had erred in applying the relaxed evidentiary standards of Hamdi to persons captured in the United States. While the Hamdi plurality suggested that hearsay evidence might be sufficient to support detention of a person apprehended in combat zone, Judge Traxler wrote that Hamdi does not establish a "cookie-cutter procedure appropriate for every alleged enemy-combatant, regardless of the circumstances of the alleged combatant's seizure or the actual burdens the government might face in defending the habeas petition in the normal way." However, he recognized that some relaxation of normal procedural safeguards may be warranted if the government demonstrates the need for this relaxation on account of national security interests and an undue burden that would result if it was compelled to produce more reliable evidence.

After the Supreme Court granted review, the government brought charges against al-Marri in federal court and asked the Court to dismiss the case as moot and to vacate the decision below, which the Court agreed to do, leaving the applicability of the AUMF to persons captured in the United States uncertain. Al-Marri pleaded guilty to conspiring to provide material support to terrorists and was sentenced to eight and a half years in prison.