Al-Marri v. Pucciarelli, 534 F.3d 213, 4th Cir. (2008)

Vacated and remanded by the Supreme Court for dismissal as moot, March 6, 2009
Volume 1 of 4
ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
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;
PROFESSORS OF EVIDENCE AND
PROCEDURE; UNITED STATES CRIMINAL
SCHOLARS AND HISTORIANS; FORMER
SENIOR JUSTICE DEPARTMENT
OFFICIALS; CENTER FOR NATIONAL
SECURITY STUDIES; AMERICAN-ARAB
ANTI-DISCRIMINATION COMMITTEE;
ASIAN-AMERICAN JUSTICE CENTER;
NATIONAL IMMIGRANT JUSTICE
CENTER; HUMAN RIGHTS FIRST;
HUMAN RIGHTS WATCH;
PROFESSORS OF CONSTITUTIONAL
LAW AND FEDERAL JURISDICTION;
No. 06-7427
AL-MARRI v. PUCCIARELLI
NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS; HATE FREE ZONE;
MUSLIM ADVOCATES; WORLD
ORGANIZATION FOR HUMAN RIGHTS
USA; DAVID M. BRAHMS, Brigadier
General; DONALD J. GUTER, Rear
Admiral; MERRILL A. MCPEAK,
Retired General,
Amici Supporting Appellant.
Appeal from the United States District Court

for 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 WILKINSON, NIEMEYER,
MICHAEL, MOTZ, TRAXLER, KING, GREGORY, and
DUNCAN, Circuit Judges.
Reversed and remanded by published per curiam opinion. Judge Motz

wrote an opinion concurring in the judgment, in which Judges
Michael, King, and Gregory joined. Judge Traxler wrote an opinion
concurring in the judgment, in Part II of which Judge Niemeyer
joined. Judge Gregory wrote an opinion concurring in the judgment.
Chief Judge Williams wrote an opinion concurring in part and dissenting in part, in which Judge Duncan joined. Judge Wilkinson wrote
an opinion concurring in part and dissenting in part. Judge Niemeyer
wrote an opinion concurring in the judgment in part and dissenting in
part. Judge Duncan wrote an opinion concurring in part and dissenting in part. Judge Shedd did not participate in this case.
COUNSEL
ARGUED: Jonathan L. Hafetz, BRENNAN CENTER FOR JUSTICE, New York University School of Law, New York, New York,
for Appellant. Gregory George Garre, Deputy Solicitor General,
Office of the Solicitor General, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Andrew
J. Savage, III, SAVAGE & SAVAGE, P.A., Charleston, South Carolina; Lawrence S. Lustberg, Mark A. Berman, GIBBONS, DEL DEO,
DOLAN, GRIFFINGER & VECCHIONE, P.C., Newark, New Jersey, for Appellant. Paul D. Clement, Solicitor General, Reginald I.
Lloyd, United States Attorney, District of South Carolina, Eric D.
Miller, Assistant to the Solicitor General, Kevin F. McDonald, Assistant United States Attorney, Claire J. Evans, UNITED STATES
DEPARTMENT OF JUSTICE, Criminal Division, Appellate Section,
Washington, D.C., for Appellee. Jenny S. Martinez, Stanford, California; Allison Marston Danner, 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 the Allard
K. Lowenstein International Human Rights Clinic, Yale Law School,
New Haven, Connecticut, for Professors of Evidence and Procedure,
Amicus Supporting Appellant. Hope R. Metcalf, WIGGIN AND
DANA, L.L.P., New Haven, Connecticut, for United States Criminal
Scholars and 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 Justice
Department Officials, Amicus Supporting Appellant. Kate Martin,
Joseph Onek, CENTER FOR NATIONAL SECURITY STUDIES,
Washington, D.C., Paul Smith, Joshua A. Block, JENNER &
BLOCK, L.L.P., New York, New York, for Center for National
Security Studies, Amicus Supporting Appellant; Lema Bashir,
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE,
Washington, D.C., for American-Arab Anti-Discrimination Committee, Amicus Supporting Appellant; Aimee J. Baldillo, ASIAN
AMERICAN JUSTICE CENTER, Washington, D.C., for AsianAmerican Justice Center, Amicus Supporting Appellant; Mary Meg
McCarthy, Tara Magner, NATIONAL IMMIGRANT JUSTICE
CENTER, Chicago, Illinois, for National Immigrant Justice Center,
Amicus Supporting Appellant. Gabor Rona, Hina Shamsi, HUMAN
RIGHTS FIRST, New York, New York; Jennifer Daskal, HUMAN

RIGHTS WATCH, Washington, D.C.; Donald Francis Donovan,
Catherine M. Amirfar, Tali Farimah Farhadian, DEBEVOISE &
PLIMPTON, L.L.P., New York, New York, for Human 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
Professors of Constitutional Law and Federal Jurisdiction, Amicus
Supporting Appellant. Timothy J. Finn, Julia E. McEvoy, Katherine
E. Stern, JONES DAY, Washington, D.C., for National Association
of Criminal Defense Lawyers, Amicus Supporting Appellant. Shankar
Narayan, HATE FREE ZONE, Seattle, Washington, for Hate Free
Zone, Amicus Supporting Appellant; Farhana Khera, MUSLIM
ADVOCATES, Kensington, Maryland, for Muslim Advocates,
Amicus Supporting Appellant. Morton Sklar, Executive Director,
Joseph Husty, Legal Intern, WORLD ORGANIZATION FOR
HUMAN RIGHTS USA, Washington, D.C., with the assistance of
Law Student Contributors: Melissa Keyes (U. of CA at Hastings Law
School), Charles Wait, Aaron Clark-Rizzio, Kennon Scott, Binish
Hasan, Maria Tennyson, Olivia Maginley and Meredith Angelson
(New York Univ. Law Sch.), Simon Moshenberg, Jesse Townsend,
Stephanie Hays, Sameer Ahmed and Nicholas Pederson (Yale Law
School), Matt Sadler (B.C. Law School), for World Organization for
Human Rights USA, Amicus Supporting Appellant. 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 Admiral, Merrill A. McPeak, Retired General, Amici
Supporting Appellant.
OPINION
PER CURIAM:
Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After
the district court denied all relief, al-Marri noted this appeal. A
divided panel of this court reversed the judgment of the district court
and ordered that al-Marris military detention cease. See Al-Marri v.

Wright, 487 F.3d 160 (4th Cir. 2007).
Subsequently, this court vacated that judgment and considered the
case en banc. The parties present two principal issues for our consideration: (1) assuming the Governments allegations about al-Marri are
true, whether Congress has empowered the President to detain alMarri as an enemy combatant; and (2) assuming Congress has
empowered the President to detain al-Marri as an enemy combatant
provided the Governments allegations against him are true, whether
al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.*
Having considered the briefs and arguments of the parties, the en
banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and
Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Governments allegations about al-Marri are true,
Congress has empowered the President to detain him as an enemy
combatant; and (2) by a 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 the President to detain alMarri as an enemy combatant provided the Governments allegations
against him are true, al-Marri has not been afforded sufficient process
to challenge his designation as an enemy combatant.
Accordingly, the judgment of the district court is reversed and
remanded for further proceedings consistent with the opinions that
follow.
*We deny the Governments motion to dismiss this case for lack of
jurisdiction. The Government relied on section 7 of the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600,
which amended the Detainee Treatment Act (DTA) of 2005, Pub. L. No.
109-148, 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en banc
argument in this case, the Supreme Court declared section 7 of the MCA
unconstitutional. See Boumediene v. Bush, 553 U.S. ___, ___, slip op. at
64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Marris habeas petition.
REVERSED AND REMANDED

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judgment:
For over two centuries of growth and struggle, peace and war, the
Constitution has secured our freedom through the guarantee that, in
the United States, no one will be deprived of liberty without due process of law. Yet more than five years ago, military authorities seized
Ali Saleh Kahlah al-Marri, an alien lawfully residing here. He has
been held by the military ever since without criminal charge or
process. He has been so held, despite the fact that he was initially
taken from his home in Peoria, Illinois, by civilian authorities and
imprisoned awaiting trial for purported domestic crimes. He has been
so held, although the Government has never alleged that he is a member of any nations military, has fought alongside any nations armed
forces, or has borne arms against the United States anywhere in the
world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive
believes that his indefinite military detention or even the indefinite
military detention of a similarly situated American citizen is
proper.
While criminal proceedings were underway against al-Marri, the
President ordered the military to seize and detain him indefinitely as
an enemy combatant. Since that order, issued in June of 2003, alMarri has been imprisoned without charge in a military jail in South
Carolina. Al-Marri petitions for a writ of habeas corpus to secure his
release from military imprisonment. The Government defends this
detention, asserting that al-Marri associated with al Qaeda and "prepar[ed] for acts of international terrorism." It maintains that the President has both statutory and inherent constitutional authority to subject
to indefinite military detention al-Marri or anyone else who associates
with al Qaeda and "prepare[s]" for such acts. If the Government accurately describes al-Marris conduct, he has committed grave crimes,
but a majority of the en banc court holds, as the panel did, that the
judgment of the district court must be reversed.1
1
As noted above, the en banc court like the panel has concluded
that the judgment of the district court denying Ali Saleh Kahlah al-Marri
We would also grant al-Marri habeas relief. Even assuming the

truth of the Governments allegations, they provide no basis for treating al-Marri as an enemy combatant or as anything other than a civilian. This does not mean that al-Marri, or similarly situated American
citizens, would have to be freed. Like others accused of terrorist
activity in this country, from the Oklahoma City bombers to the convicted September 11th conspirator, they could be tried on criminal
charges and, if convicted, punished severely. But the Government
would not be able to subject them to indefinite military detention.
With regret, we recognize that this view does not command a
majority of the court. Our colleagues hold that the President can order
the military to seize from his home and indefinitely detain anyone in
this country including an American citizen even though he has
never affiliated with an enemy nation, fought alongside any nations
armed forces, or borne arms against the United States anywhere in the
world. We cannot agree that in a broad and general statute, Congress
silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of
executive power.2 Even in times of national peril, we must follow the
law, lest this country cease to be a nation of laws. For "[l]iberty and
security can be reconciled; and in our system they are reconciled
within the framework of the law." Boumediene v. Bush, 553 U.S. ___,
___, slip op. at 70 (June 12, 2008).
habeas relief must be reversed. The opinion that follows incorporates
some of the rationale originally contained in the now vacated panel opinion, Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). It also includes
substantial additions and revisions applying intervening Supreme Court
precedent and responding to the arguments on rehearing of the Government and of our colleagues. 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.
2
One of the dissenters repeatedly insists that we are really suggesting
that the Constitution prohibits the detention of al-Marri. See, e.g., post at
129, 144-45, 157, 159 n.5, 175, 183 (Wilkinson, J., concurring in part
and dissenting in part). 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 subject civilians within the
United States to indefinite military detention, we need not, and do not,
determine whether such a grant of authority would violate the Constitution.
Although our preferred disposition does not command a majority

of the court, a majority does refuse to affirm the judgment of the district court. To give effect to the conclusion of that majority, we join
in "ordering remand on terms 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 concurring in the judgment); see
also Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J.,
concurring in the result). In this case, that means that we join in a
judgment reversing and remanding for evidentiary proceedings to
determine whether al-Marri actually is an enemy combatant and so
subject to military detention. Although we believe that Congress in
the Authorization for Use of Military Force (AUMF), 115 Stat. 224,
note following 50 U.S.C.A. 1541 (West 2003), has not authorized
al-Marris military detention, the evidentiary proceedings envisioned
by Judge Traxler will at least place the burden on the Government to
make an initial showing that "the normal due process protections
available to all within this country" are impractical or unduly burdensome in al-Marris case and that the hearsay declaration that constitutes the Governments only evidence against al-Marri is "the most
reliable available evidence" supporting the Governments allegations.
Post at 94-95.
In reaching our conclusions, we note at the outset that we respect
our dissenting colleagues strongly held contrary views and the
rhetoric with which they advance those views. But rhetoric and passion no matter how sincere cannot substitute for faithful application of the Constitution and controlling legal principles. In this
respect, the dissents fail. Finding scant legal support for their positions, our hardworking dissenting colleagues resort to inventing new
definitions of enemy combatant. Not only have none of their differing
definitions been adopted by Congress or advocated by the Government, these definitions are contrary to law-of-war principles long followed by the Supreme Court. The absence of authority supporting any
of these divergent positions unsurprisingly results in our colleagues
inability to agree on the scope of the Executives power to detain or
the correct process for reviewing such detentions. Thus, while we do
not doubt the dissenters good faith and good will, we must reject
their approaches.
As the Supreme Court recently reminded us, "[s]ecurity subsists
. . . in fidelity to freedoms first principles. Chief among these are
freedom from arbitrary and unlawful restraint and the personal liberty
that is secured by adherence to the separation of powers." Boumediene, 553 U.S. at ___, slip op. at 68-69. To allow the President, in the
absence of congressional authorization, to exercise military force
against civilians in this country is to abandon these principles. Without them, neither freedom nor security can survive.
I.
Al-Marri, a citizen of Qatar, lawfully entered the United States
with his wife and children on September 10, 2001, to pursue a masters degree at Bradley University in Peoria, Illinois, where he had
obtained a bachelors degree in 1991. The following day, terrorists
hijacked four commercial airliners and used them to kill and inflict
grievous injury on thousands of Americans. Three months later, on
December 12, 2001, FBI agents arrested al-Marri at his home in Peoria as a material witness in the Governments investigation of the September 11th attacks. Al-Marri was imprisoned in civilian jails in
Peoria and then New York City.
In February 2002, al-Marri was charged in the Southern District of
New York with the possession of unauthorized or counterfeit credit
card 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 a false statement to the FBI, three counts of making a false
statement on a bank application, and one count of using another persons identification for the purpose of influencing the action of a federally insured financial institution. Al-Marri pleaded not guilty to all
of these charges. In May 2003, a federal district court in New York
dismissed the charges against al-Marri for lack of venue.
The Government then returned al-Marri to Peoria, and he was reindicted in the Central District of Illinois on the same seven counts,
to which he again pleaded not guilty. The district court set a July 21,
2003, trial date. On Friday, June 20, 2003, the court scheduled a hearing on pre-trial motions, including a motion to suppress evidence
against al-Marri assertedly obtained by torture. On the following
Monday, June 23, before that hearing could be held, the Government
moved ex parte to dismiss the indictment based on an order signed
that morning by the President.
10
In the order, President George W. Bush stated that he "DETERMINE[D] for the United States of America that" al-Marri: (1) is an
enemy combatant; (2) is closely associated with al Qaeda; (3) "engaged in conduct that constituted hostile and war-like acts, including
conduct in preparation for acts of international terrorism"; (4) "possesses intelligence . . . that . . . would aid U.S. efforts to prevent
attacks by al Qaeda"; and (5) "represents a continuing, present, and
grave danger to the national security of the United States." The President determined that al-Marris detention by the military was "necessary to prevent him from aiding al Qaeda" and thus ordered the
Attorney General to surrender al-Marri to the Secretary of Defense
and further directed the Secretary of Defense to "detain him as an
enemy combatant."
The federal district court in Illinois granted the Governments
motion to dismiss the criminal indictment against al-Marri. In accordance with the Presidents order, al-Marri was then transferred to military custody and brought to the Naval Consolidated Brig in South
Carolina.
Since that time (that is, for five years) the military has held alMarri as an enemy combatant, without charge and without any indication when this confinement will end. For the first sixteen months of
his military confinement, the Government did not permit al-Marri any
communication with the outside world, including his attorneys, his
wife, and his children. He alleges that he was denied basic necessities,
interrogated through measures creating extreme sensory deprivation,
and threatened with violence. A pending civil action challenges the
"inhuman, degrading," and "abusive" conditions of his confinement.
See Complaint at 1, Al-Marri v. Rumsfeld, No. 2:05-cv-02259-HFFRSC (D.S.C. Aug. 8, 2005).
On July 8, 2003, counsel for al-Marri petitioned on his behalf
(because it was undisputed that he was unavailable to petition) for a
writ of habeas corpus in the Central District of Illinois. The district
court dismissed the petition for lack of venue, Al-Marri v. Bush, 274
F. Supp. 2d 1003 (C.D. Ill. 2003); the Seventh Circuit affirmed, AlMarri 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 July 8, 2004, al-Marris counsel filed the present habeas petition
11
on al-Marris behalf in the District of South Carolina. On September

9, 2004, the Government answered al-Marris petition, citing the Declaration of Jeffrey N. Rapp, Director of the Joint Intelligence Task
Force for Combating Terrorism, as support for the Presidents order
to detain al-Marri as an enemy combatant.
The Rapp Declaration asserts that al-Marri: (1) is "closely associated with al Qaeda, an international terrorist organization with which
the United States is at war"; (2) trained at an al Qaeda terrorist training camp in Afghanistan sometime between 1996 and 1998; (3) in the
summer of 2001, was introduced to Osama Bin Laden by Khalid
Shaykh Muhammed; (4) at that time, volunteered for a "martyr mission" on behalf of al Qaeda; (5) was ordered to enter the United States
sometime before September 11, 2001, to serve as a "sleeper agent" to
facilitate terrorist activities and explore disrupting this countrys
financial system through computer hacking; (6) in the summer of
2001, met with terrorist financier Mustafa Ahmed al-Hawsawi, who
gave al-Marri money, including funds to buy a laptop; (7) gathered
technical information about poisonous chemicals on his laptop; (8)
undertook efforts to obtain false identification, credit cards, and banking information, including stolen credit card numbers; (9) communicated with known terrorists, including Khalid Shaykh Muhammed
and al-Hawsawi, by phone and e-mail; and (10) saved information
about jihad, the September 11th attacks, and Bin Laden on his laptop
computer.
The Rapp Declaration does not assert that al-Marri: (1) is a citizen,
or affiliate of the armed forces, of any nation at war with the United
States; (2) was seized on, near, or having escaped from a battlefield
on which the armed forces of the United States or its allies were
engaged in combat; (3) was ever in Afghanistan during the armed
conflict between the United States and the Taliban there; or (4)
directly participated in any hostilities against United States or allied
armed forces.
On October 14, 2004, the Government permitted al-Marri access to
his counsel for the first time since his initial confinement as an enemy
combatant sixteen months before. (According to al-Marris counsel,
as of the time of the en banc filings, the Government still has not permitted al-Marri to speak to his wife or any of his five children.) Al-
12
Marri then submitted a reply to the Governments evidence, contending that he is not an enemy combatant; he then moved for summary
judgment. The district court denied the summary judgment motion
and referred the case to a magistrate judge for consideration of the
appropriate process to be afforded al-Marri in light of Hamdi, 542
U.S. 507. The magistrate judge ruled that the Rapp Declaration provided al-Marri with sufficient notice of the basis of his detention as
an enemy combatant and directed al-Marri to file rebuttal evidence.
In response to the magistrates ruling, al-Marri again denied the
Governments allegations but filed no rebuttal evidence, contending
that the Government had an initial burden to produce evidence that he
was an enemy combatant and that the Rapp Declaration did not suffice. The magistrate judge recommended dismissal of al-Marris
habeas petition because al-Marri had failed to rebut the allegations in
the Rapp Declaration. In August 2006, the district court adopted the
magistrate judges report and recommendation and dismissed alMarris habeas petition. A few days later, al-Marri noted this appeal.3
After oral argument, a panel of this court reversed the judgment of
the district court and remanded the case for further proceedings. See
Al-Marri, 487 F.3d 160. On the Governments motion for rehearing,
the court voted to vacate the panel opinion and hear the case en banc.
For the reasons set forth within, we would once again hold that alMarri must be afforded habeas relief and so would reverse the judgment of the district court and remand the case for further proceedings
consistent with that holding.
II.
Al-Marri premises his habeas claim on the Fifth Amendments
guarantee that no person living in this country can be deprived of liberty without due process of law. He maintains that even if he has
committed the acts the Government alleges, he is not a combatant but
a civilian protected by our Constitution, and thus is not subject to mil3
Numerous amici have submitted briefs to us, both on the jurisdictional

and merits questions. Many of these briefs have been helpful, and we are
especially grateful for the care exhibited in focusing on different issues,
thus avoiding redundancy.
13
itary detention. Al-Marri acknowledges that the Government can

deport him or charge him with a crime and, if he is convicted in a
civilian court, imprison him. But he insists that neither the Constitution nor any law permits the Government, on the basis of the evidence
it has proffered to date even assuming all of that evidence is true
to treat him as an enemy combatant and subject him to indefinite
military detention, without criminal charge or process.
The Government contends that the district court properly denied
habeas relief to al-Marri, because the Constitution allows detention of
enemy combatants by the military without criminal process, and,
according to the Government, it has proffered evidence that al-Marri
is an enemy combatant. The Government argues that the AUMF, as
construed by precedent and considered in conjunction with the "legal
background against which [it] was enacted," empowers the President
on the basis of that proffered evidence to order al-Marris indefinite
military detention as an enemy combatant. Alternatively, the Government contends that even if the AUMF does not authorize the President to order al-Marris military detention, the President has "inherent
constitutional power" to do so.
A.
Each party grounds its case on well-established legal doctrine.
Moreover, important principles guiding our analysis seem undisputed.
Before addressing the conflicting contentions of the parties, we note
these fundamental principles, which we 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 the Fifth Amendment affords this guarantee to "person[s]," not merely citizens, and so
the constitutional right to freedom from deprivation of liberty without
due process of law extends to all lawfully admitted aliens living
within the United States. See Wong Wing v. United States, 163 U.S.
228, 238 (1896); see also United States v. Verdugo-Urquidez, 494
U.S. 259, 271 (1990).
To be sure, as al-Marris counsel conceded at oral argument before
the en banc court, our Constitution has no "force in foreign territory
14
unless in respect of our citizens." United States v. Curtiss-Wright

Export Corp., 299 U.S. 304, 318 (1936). But, as Chief Justice Rehnquist explained, a long line of Supreme Court cases establishes that
aliens receive certain protections including those rights guaranteed
by the Due Process Clause "when they have come within the territory of the United States and developed substantial connections with
this country." Verdugo-Urquidez, 494 U.S. at 271; see also Boumediene, 553 U.S. at ___, slip op. at 12 (noting that "the Constitutions
. . . substantive guarantees of the Fifth and Fourteenth Amendments
. . . protect[ ] persons," including "foreign nationals"); SanchezLlamas v. Oregon, 126 S. Ct. 2669, 2681-82 (2006) (observing that
"[a] foreign national . . . like anyone else in our country enjoys under
our system the protections of the Due Process Clause"); Kwong Hai
Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (noting that "once an
alien lawfully enters and resides in this country he becomes invested
with . . . rights . . . protected by . . . the Fifth Amendment[ ] and by
the due process clause of the Fourteenth Amendment" (internal quotation marks omitted)); Wong Wing, 163 U.S. at 238 (holding that "all
persons within the territory of the United States are entitled to the protection guaranteed by" the Due Process Clause of the Fifth Amendment); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (explaining that
the Due Process Clause of the Fourteenth Amendment protects "all
persons within the territorial jurisdiction" of the United States). Thus,
the Due Process Clause protects not only citizens but also aliens, like
al-Marri, lawfully admitted to this country who have established substantial connections here in al-Marris case by residing in Illinois
for several months with his family and attending university there.4
"Freedom from imprisonment from government custody, detention, or other forms of physical 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 Foucha v. Louisiana, 504 U.S. 71, 80
(1992). This concept dates back to the Magna Carta, which guaranteed that "government would take neither life, liberty, nor property
without a trial in accord with the law of the land." Duncan v. Louisiana, 391 U.S. 145, 169 (1968) (Black, J., concurring). The "law of the
4
Hence, the case at hand involves and we limit our analysis to

persons seized and detained within the United States who have constitutional rights under the Due Process Clause.
15
land" at its core provides that "no mans life, liberty or property be
forfeited as a punishment until there has been a charge fairly made
and fairly tried in a public tribunal." In re Oliver, 333 U.S. 257, 278
(1948). Thus, the Supreme Court has recognized that, because of the
Due Process Clause, it "may freely be conceded" that as a "general
rule . . . the government may not detain a person prior to a judgment
of guilt in a criminal trial." United States v. Salerno, 481 U.S. 739,
749 (1987).
The Court, however, has permitted a limited number of specific
exceptions to this general rule. Although some process is always
required in order to detain an individual, in special situations detention based on process less than that attendant to a criminal conviction
does not violate the Fifth Amendment. See, e.g., Kansas v. Hendricks,
521 U.S. 346 (1997) (civil commitment of mentally ill sex offenders);
Salerno, 481 U.S. 739 (pretrial detention of dangerous adults); Schall
v. Martin, 467 U.S. 253 (1984) (pretrial detention of dangerous juveniles); Addington v. Texas, 441 U.S. 418 (1979) (civil commitment of
mentally ill); Humphrey v. Smith, 336 U.S. 695 (1949) (courts martial
of American soldiers). Among these recognized exceptions is the one
on which the Government grounds its principal argument in this case:
Congress may constitutionally authorize the President to order the
military detention, without criminal process, of persons who "qualify
as enemy combatants," that is, fit within that particular "legal category." Hamdi, 542 U.S. at 516, 522 n.1.5
5
Case law also establishes that during times of war Congress may constitutionally authorize the President to detain "enemy aliens," also known
as "alien enemies," defined as "subject[s] of a foreign state at war with
the United States." Johnson v. Eisentrager, 339 U.S. 763, 769 n.2 (1950)
(internal quotation marks omitted); see Ludecke v. Watkins, 335 U.S. 160
(1948). And the Government can detain potentially dangerous resident
aliens for a limited time pending deportation. See, e.g., Carlson v. Landon, 342 U.S. 524, 537-42 (1952); cf. Zadvydas, 533 U.S. 678 (construing a statutes authorization of post-removal-period detention not to
permit indefinite detention of aliens in order to avoid serious doubt as to
its constitutionality). But, as the Government recognizes, the Alien
Enemy Act, the statute the Court considered in Eisentrager and Ludecke,
does not apply to al-Marris case. In fact, al-Marri is not an "enemy
alien" but a citizen of Qatar, with which the United States has friendly
diplomatic relations. The Government also does not seek to deport alMarri. Therefore, neither of these exceptions is offered by the Government as a basis for holding al-Marri without criminal charge, and neither
is applicable here.
16
The act of depriving a person of the liberty protected by our Constitution is a momentous one; thus, recognized exceptions to criminal
process are narrow in scope and generally permit only limited periods
of detention. See, e.g., Jackson v. Indiana, 406 U.S. 715, 738 (1972).
Moreover, regardless of possible "threat[s] to community safety" or
"barriers to criminal prosecution," post at 146 (Wilkinson, J., concurring in part and dissenting in part), the Government can never invoke
an exception, and so detain a person without criminal process, unless
the individual fits within the narrow legal category of persons to
whom the exception applies.6 For example, the Supreme Court has
held that the Constitution does not permit the Government to detain
a predatory sex criminal through a civil commitment process simply
by establishing that he is dangerous, i.e., a "threat to community
safety." The civil commitment process may be substituted for criminal process only if the Government meets its statutory burden, that is,
the Government demonstrates "proof of dangerousness" and "proof of
some additional factor, such as a mental illness or mental abnormality." Hendricks, 521 U.S. at 358.
In Hamdi, the plurality explained that precisely the same principles
apply when the Government seeks to detain a person as an enemy
6
Furthermore, the Supreme Court has never permitted an exception to

criminal process merely on the basis of judicial fears as to "threat[s] to
community safety" or "barriers to criminal prosecution." See post at 146
(Wilkinson, J., concurring in part and dissenting in part). Rather, the
Court has permitted such exceptions only when a legislative body has
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 mental health grounds); Hendricks, 521 U.S. 346 (Kansas Sexually Violent Predator Act). Accordingly, it is hardly surprising
that, despite the broad language of the AUMF, the Supreme Court in
Hamdi found only that the statute provided congressional authorization
for the military detention of an enemy combatant as that term is defined
by traditional law-of-war principles. And, even more recently, in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2775 (2006), the Court expressly
refused to read the broad language of the AUMF to "expand the Presidents authority to convene military commissions," instead finding that
this authority was limited by traditional law-of-war principles "[a]bsent
a more specific congressional authorization."
17
combatant. Under the habeas procedure prescribed in Hamdi, if the

Government asserts an exception to the usual criminal process by
detaining as an enemy combatant an individual with constitutional
rights, it must proffer evidence to demonstrate that the individual
"qualif[ies]" for this exceptional treatment. 542 U.S. at 516, 534.
Only after the Government has "put[ ] forth credible evidence that"
an individual "meets the enemy-combatant criteria" does "the onus"
shift to the individual to demonstrate "that he falls outside the [enemy
combatant] criteria." Id. at 534. For, in this country, the military cannot seize and indefinitely detain an individual particularly when
the sole process leading to his detention is a determination by the
Executive that the detention is necessary7 unless the Government
demonstrates that he "qualif[ies]" for this extraordinary treatment
because he fits within the "legal category of enemy combatant." Id.
at 516, 522 n.1.
Moreover, when the Government contends, as it does here, that an
individual with constitutional rights is an enemy combatant and that
such an individuals exclusive opportunity to escape indefinite military detention rests on overcoming presumptively accurate hearsay,
courts must take particular care that the Governments allegations
demonstrate that the detained individual is not a civilian, but instead,
as the Supreme Court has explained, "meets the enemy-combatant
criteria." Id. at 534. For only such care accords with the "deeply
rooted and ancient opposition in this country to the extension of military control over civilians." Reid v. Covert, 354 U.S. 1, 33 (1957)
(plurality).
These principles thus form the legal framework for consideration
of the issues before us. Both parties recognize that it does not violate
7
Hamdi recognizes that the sole process that the Government need provide in order to initially detain an enemy combatant is a presidential
determination that the detention is necessary. 542 U.S. at 518. Of course,
Hamdi also reaffirms that the writ of habeas corpus provides a remedy
to challenge collaterally the legality of the ongoing detention. Id. at 52526. Although the habeas remedy follows from the Suspension Clause, the
Hamdi plurality borrowed the due process balancing approach from
Mathews v. Eldridge, 424 U.S. 319 (1976), to design the specific requirements of this habeas remedy. Hamdi, 542 U.S. at 525-35.
18
the Due Process Clause for the President to order the military to seize
and detain individuals who "qualify" as enemy combatants for the
duration of a war. They disagree, however, as to whether the evidence
the Government has proffered, even assuming its accuracy, establishes that al-Marri fits within the "legal category of enemy combatant." Hamdi, 542 U.S. at 522 n.1. The Government principally
contends that its evidence establishes this, and therefore the AUMF
grants the President statutory authority to detain al-Marri as an enemy
combatant. Alternatively, the Government asserts that the President
has inherent constitutional authority to order al-Marris indefinite military detention. Al-Marri maintains that the proffered evidence does
not establish that he fits within the "legal category of enemy combatant," id., and so the AUMF does not authorize the President to order
the military to seize and detain him, and that the President has no
inherent constitutional authority to order this detention. We now turn
to these contentions.
B.
The Governments primary argument is that the AUMF, as construed by precedent and considered against "the legal background
against which [it] was enacted," i.e., constitutional and law-of-war
principles, empowers the President to order the military to seize and
detain al-Marri as an enemy combatant. The AUMF provides:
[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.
2(a), 115 Stat. 224.8 In considering the Governments AUMF argu8
Although the Government asserts in a footnote that the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600, "buttresses" the Presidents "inherent authority" to detain al-Marri, it does not
assert that the MCA provides statutory authority to detain enemy comba-
19
ment, we first note the limits the Government places on its interpretation of this statute and then consider the Governments central
contention.
1.
Tellingly, the Deputy Solicitor General conceded at oral argument
before the en banc court that the AUMF only authorizes detention of
enemy combatants. Thus, the Government does not argue that the
broad language of the AUMF authorizes the President to subject to
indefinite military detention anyone he believes to have aided any
"nation[ ], organization[ ], or person[ ]" related to the September 11th
attacks. See 2(a), 115 Stat. 224. Such an interpretation would lead
to absurd results that Congress could not have intended.
Under that reading of the AUMF, the President would be able to
subject to indefinite military detention anyone, including an American
citizen, whom the President believed was associated with any organization that the President believed in some way "planned, authorized,
committed, or aided" the September 11th attacks, so long as the President believed this to be "necessary and appropriate" to prevent future
acts of terrorism.
Under such an interpretation of the AUMF, if some money from
a nonprofit charity that feeds Afghan orphans made its way to al
Qaeda, the President could subject to indefinite military detention any
donor to that charity. Similarly, this interpretation of the AUMF
would allow the President to detain indefinitely any employee or
tants. Plainly, the MCA could not provide the Government with authority
to subject al-Marri to indefinite military detention, since Congress did
not enact the MCA until October 16, 2006, more than three years after
the President ordered al-Marris indefinite military detention. Moreover,
the MCA addresses only whether a detained individual is an unlawful
enemy combatant subject to military trial, pursuant to specific statutory
procedures, not whether, in the first instance, an individual with constitutional rights seized in this country qualifies as an enemy combatant subject to indefinite military detention. Accord post at 183-184 n.9
(Wilkinson, J., concurring in part and dissenting in part).
20
shareholder of an American corporation that built equipment used by

the September 11th terrorists; or allow the President to order the military seizure and detention of an American-citizen physician who
treated a member of al Qaeda.
Moreover, at oral argument, the Deputy Solicitor General also
explicitly and properly acknowledged that exercise of power under
the AUMF must be consistent with the Constitution. But to read the
AUMF to provide the President with the unlimited power outlined
above would present serious constitutional questions. For the
Supreme Court has long recognized that the Due Process Clause "cannot be . . . construed as to leave Congress free to make any process
due process of law, by its mere will." See Murrays Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276-77 (1855).
2.
The Governments arguments do not require us to deal with the
absurd results, nor reach the constitutional concerns, raised by an
interpretation of the AUMF that would authorize the President to
detain indefinitely without criminal charge or process anyone
he believes to have aided any "nation[ ], organization[ ], or person[ ]"
related to the September 11th terrorists. See 2(a), 115 Stat. 224. For
the Government wisely limits its argument.9 It relies only on the
9
Chief Judge Williams and Judge Wilkinson each take a different

approach; we address each of these approaches within. We note here,
however, a basic inconsistency in both dissenters reasoning. Both first
heavily rely on the broad language of the AUMF as authorizing alMarris detention, but then explicitly recognize the difficulties with interpreting the statute to give effect to this broad language. Judge Williams
dismisses the definition of enemy combatant under "the traditional law
of war" because, she contends, the AUMF "controls . . . for purposes of
domestic law," but she then acknowledges that giving full force to that
statute "might produce absurd results." Post at 117 & n.4. Judge Wilkinson goes even further. He initially points to the breadth of the AUMF
language and chides us for refusing to give it full effect, post at 133-143,
but ultimately he himself also refuses to give this language full effect.
Rather, Judge Wilkinson properly recognizes the "constitutional limits on
what Congress can authorize the executive to do," and given those limits,
21
scope of the AUMF as construed by precedent and considered in light

of "the legal background against which [it] was enacted." Specifically,
the Government contends that "[t]he Supreme Courts and this
Courts prior construction of the AUMF govern this case and compel
the conclusion that the President is authorized to detain al-Marri as an
enemy combatant."
i.
The precedent interpreting the AUMF on which the Government
relies for this argument consists of two cases: the Supreme Courts
opinion in Hamdi, 542 U.S. 507, and our opinion in Padilla v. Hanft,
423 F.3d 386 (4th Cir. 2005).10 The "legal background" for the
AUMF, which the Government cites, consists of two cases from earlier conflicts, 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 as constitutional and law-of-war principles.
With respect to the latter, we note that American courts have often
been reluctant to follow international law in resolving domestic disputes. In the present context, however, they, like the Government
here, have relied on the law of war treaty obligations including the
Hague and Geneva Conventions and customary principles developed
alongside them. The law of war provides clear rules for determining
an individuals status during an international armed conflict, distinguishing between "combatants" (members of a nations military, militia, or other armed forces, and those who fight alongside them) and
he contends that to "qualify constitutionally" for treatment as an enemy
combatant under the AUMF, an individual must fit within his three newly
created criteria. Post at 156, 159-60. With these new criteria firmly in
place, Judge Wilkinson maintains that our suggestion that the actual language of the AUMF would produce unconstitutional or absurd results,
for example rendering donors to a nonprofit charity enemy combatants,
is "beyond hyperbole." Post at 177.
10
Of course, Padilla does not bind this court, but we consider it
because the Government has heavily relied upon it, and it is in no way
inconsistent with our conclusion that al-Marri is not an enemy combatant.
22
"civilians" (all other persons).11 See, e.g., Geneva Convention Relative to the Treatment of Prisoners 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 of Civilian Persons in Time of
War (Fourth Geneva Convention) art. 4, Aug. 12, 1949, 6 U.S.T.
3516, 75 U.N.T.S. 287. American courts have repeatedly looked to
these careful distinctions made in the law of war in identifying which
individuals fit within the "legal category" of "enemy combatant"
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 asserts that the construction
given the AUMF in Hamdi and Padilla based on these law-of-war
principles "compel[s] the conclusion that the President is authorized [by the AUMF] to detain al-Marri as an enemy combatant." In
other words, the Government contends that al-Marri fits within the
"legal category" of persons that the Supreme Court in Hamdi, and a
panel of this court in Padilla, held the AUMF authorized the President to detain as enemy combatants. Thus, we examine those cases to
determine whether the interpretation of the AUMF they adopt does
indeed empower the President to treat al-Marri as an enemy combatant.
11
Thus, "civilian" is a term of art in the law of war, not signifying an

innocent person, but rather someone in a certain legal category who is
not subject to military seizure or detention. So, too, a "combatant" is by
no means always a wrongdoer, but rather a member of a different "legal
category" who is subject to military seizure and detention. Hamdi, 542
U.S. at 522 n.1. For example, our brave soldiers fighting in Germany
during World War II were "combatants" under the law of war, and
viewed from Germanys perspective they were "enemy combatants."
While civilians are subject to trial and punishment in civilian courts for
all crimes committed during wartime in the country in which they are
captured and held, combatant status protects an individual from trial and
punishment by the capturing nation, unless the combatant has violated
the law of war. See id. at 518; Quirin, 317 U.S. at 28-31. Nations in
international conflicts can summarily remove the adversarys "combatants," i.e., the "enemy combatants," from the battlefield and detain them
for the duration of such conflicts, but no such provision is made for "civilians." Hamdi, 542 U.S. at 518; Quirin, 317 U.S. at 28-31.
23
In Hamdi, the Supreme Court looked to precedent and the law of

war to determine whether the AUMF authorized the President to
detain as an enemy combatant an American citizen captured while
engaging in battle against American and allied armed forces in
Afghanistan as part of the Taliban. See 542 U.S. at 518-22. In support
of that detention, the Government offered evidence that Yaser Esam
Hamdi "affiliated with a Taliban military unit and received weapons
training," "took up arms with the Taliban," "engaged in armed conflict against the United States" in Afghanistan, and, when captured on
the battlefield, "surrender[ed] his Kalishnikov assault rifle." Id. at
510, 513, 516 (internal quotation marks omitted). Hamdis detention
was upheld because, in fighting against the United States on the battlefield in Afghanistan with the Taliban, the de facto government of
Afghanistan at the time,12 Hamdi bore arms with the army of an
enemy nation and so, under the law of war, was an enemy combatant.
Id. at 518-20.
The Hamdi Court expressly recognized that the AUMF did not
explicitly provide for detention. Id. at 519; see also id. at 547 (Souter,
J., concurring in part, dissenting in part, and concurring in the judgment). It concluded, however, "in light of" the law-of-war principles
applicable to Hamdis battlefield capture, that this was "of no
moment" in the case before it. Id. at 519 (plurality). As the plurality
explained, "[b]ecause detention to prevent a combatants return to the
battlefield is a fundamental incident of waging war, in permitting the
use of necessary and appropriate force, Congress has clearly and
unmistakably authorized detention in the narrow circumstances considered here." Id. (emphasis added). Thus, the Hamdi Court reached
the following limited holding: "the AUMF is explicit congressional
authorization for the detention of individuals in the narrow category
12
See White House Fact Sheet: Status of Detainees at Guantanamo

(Feb. 7, 2002), http://www.pegc.us/archive/White_House/20020207_
WH_POW_fact_sheet.txt; see also Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, arts. 4344, 1125 U.N.T.S. 3 (defining combatants in conflicts between nations
as members, other than chaplains and medical personnel, of "all organized armed forces, groups and units which are under a command
responsible to that [nation] for the conduct of its subordinates").
24
we describe," that is, individuals who were "part of or supporting

forces hostile to the United States or coalition partners in Afghanistan
and who engaged in an armed conflict against the United States
there." Id. at 516-17 (internal quotation marks omitted and emphasis
added); accord id. at 587 (Thomas, J., dissenting). The plurality
explained that its opinion "only finds legislative authority to detain
under the AUMF once it is sufficiently clear that the individual is, in
fact, an enemy combatant." Id. at 523 (emphasis added). The plurality
also cautioned that "[i]f the practical circumstances of a given conflict" differed from those of the traditional conflicts that informed the
law of war, the understanding that the AUMF authorizes detention
"may unravel." Id. at 521.
In Padilla, a panel of this court similarly held that the AUMF
authorized the President to detain as an enemy combatant an American citizen who "was armed and present in a combat zone" in Afghanistan as part of Taliban forces during the conflict there with the
United States. 423 F.3d at 390-91 (internal quotation marks omitted).
The Government had not been able to capture Jose Padilla until he
came to the border of the United States, but, because the Government
presented evidence that Padilla "took up arms against United States
forces in [Afghanistan] in the same way and to the same extent as did
Hamdi," we concluded that he "unquestionably qualifies as an enemy
combatant as that term was defined for the purposes of the controlling opinion in Hamdi." Id. at 391.13 We too invoked the law of war,
upholding Padillas detention because we understood "the pluralitys
reasoning in Hamdi to be that the AUMF authorizes the President to
13
Although our opinion discussed Padillas association with al Qaeda,

we held that Padilla was an enemy combatant because of his association
with Taliban forces, i.e., Afghanistan government forces, on the battlefield in Afghanistan during the time of the conflict between the United
States and Afghanistan. Padilla, 423 F.3d at 391. Al-Marri urges us to
ignore Padilla, particularly in light of its subsequent history. See Padilla
v. Hanft, 432 F.3d 582, 583 (4th Cir. 2005) (noting that the Governments transfer of Padilla to civilian custody for criminal trial after arguing before this court that he was an enemy combatant created "an
appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court"). That history is troubling,
but we see no need to avoid Padilla since its narrow holding does not in
any way conflict with our conclusion here.
25
detain all those who qualify as enemy combatants within the meaning of the law of war." Id. at 392. We also noted that Padillas detention, like Hamdis, was permissible "to prevent a combatants return
to the battlefield . . . a fundamental incident of waging war." Id. at
391 (emphasis added) (quoting Hamdi, 542 U.S. at 519).
Supreme Court precedent offered substantial support for the narrow
rulings in Hamdi and Padilla. In Quirin, which the Hamdi plurality
characterized as the "most apposite precedent," 542 U.S. at 523, the
Supreme Court upheld the treatment, as enemy combatants, of men
directed, outfitted, and paid by the German military to bring explosives into the United States to destroy American war industries during
World War II. The Quirin Court concluded that even a petitioner
claiming American citizenship had been properly classified as an
enemy combatant because "[c]itizens who associate themselves with
the military arm of the enemy government, and with its aid, guidance
and direction enter this country bent on hostile acts, are enemy belligerents [combatants] within the meaning of . . . the law of war." 317
U.S. at 37-38. The Court cited the Hague Convention "which defines
the persons to whom belligerent [i.e., combatant] rights and duties
attach," id. at 30-31 n.7, in support of its conclusion that the Quirin
petitioners qualified as enemy combatants. Given the "declaration of
war between the United States and the German Reich," id. at 21, and
that all the Quirin petitioners, including one who claimed American
citizenship, were directed and paid by the "military arm" of the German Reich, the Court held that the law of war classified them as
enemy belligerents (or combatants) and so the Constitution permitted
subjecting them to military jurisdiction. Id. at 48.
Hamdi and Padilla ground their holdings on this central teaching
from Quirin, i.e., enemy combatant status rests on an individuals
affiliation during wartime with the "military arm of the enemy government." Quirin, 317 U.S. at 37-38; Hamdi, 542 U.S. at 519; Padilla,
423 F.3d at 391. In Quirin, that enemy government was the German
Reich; in Hamdi and Padilla, it was the Taliban government of
Afghanistan.
Hamdi and Padilla also rely on this principle from Quirin to distinguish (but not disavow) Milligan. In Milligan, the Court rejected the
Governments impassioned contention that a presidential order and
26
the "laws and usages of war," 71 U.S. at 121-22, justified exercising

military jurisdiction over Lamdin Milligan, an Indiana resident, during the Civil War. The Government alleged that Milligan had communicated with the enemy, had conspired to "seize munitions of war,"
and had "join[ed] and aid[ed] . . . a secret" enemy organization "for
the purpose of overthrowing the Government and duly constituted
authorities of the United States." Id. at 6. The Court recognized that
Milligan had committed "an enormous crime" during "a period of
war" and at a place "within . . . the theatre of military operations, and
which had been and was constantly threatened to be invaded by the
enemy." Id. at 7, 130. But it found no support in the "laws and usages
of war" for subjecting Milligan to military jurisdiction as a combatant,
for although he was a "dangerous enem[y]" of the nation, he was a
civilian and had to be treated as such. Id. at 121-22, 130.
Quirin, Hamdi, and Padilla all emphasize that Milligans teaching
that our Constitution does not permit the Government to subject
civilians within the United States to military jurisdiction remains
good law. The Quirin Court explained that while the petitioners
before it were affiliated with the armed forces of an enemy nation and
so were enemy belligerents, Milligan was a "non-belligerent" and so
"not subject to the law of war." 317 U.S. at 45. The Hamdi plurality
similarly took care to note that Milligan "turned in large part on the
fact that Milligan was not a prisoner of war" (i.e., combatant) and
suggested that "[h]ad Milligan been captured while he was assisting
Confederate soldiers by carrying a rifle against Union troops on a
Confederate battlefield, the holding of the Court might well have been
different." 542 U.S. at 522. And in Padilla, we reaffirmed that "Milligan does not extend to enemy combatants" and so "is inapposite here
because Padilla, unlike Milligan, associated with, and has taken up
arms against the forces of the United States on behalf of, an enemy
of the United States." 423 F.3d at 396-97. Thus, although Hamdi,
Quirin, and Padilla distinguish Milligan, they recognize that its core
holding remains the law of the land. That is, civilians within 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 sub-
27
jected to military control and deprived of constitutional rights. Milligan, 71 U.S. at 6, 130.14
In sum, the holdings of Hamdi and Padilla share two characteristics: (1) they look to law-of-war principles to determine who fits
within the "legal category" of enemy combatant; and (2) following the
law of war, they rest enemy combatant status on affiliation with the
military arm of an enemy nation.
14
Because of this important principle, the Supreme Court has hailed

Milligan as "one of the great landmarks in th[e] Courts history." Reid,
354 U.S. at 30. Although in its appellate brief the Government largely
avoids Milligan, it implicitly acknowledges this point and so attempts to
distinguish Milligan from the case at hand on the ground that Milligan
was a citizen and al-Marri an alien. In some circumstances, the Constitution does afford aliens less protection than citizens. See, e.g., Hamdi, 542
U.S. at 558-59 (Scalia, J., dissenting) (suggesting 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 marks omitted), differ from those of a treasonous citizen); Verdugo-Urquidez, 494 U.S. at
274-75 (holding that the Fourth Amendment does not apply to searches
by United States agents of property owned by aliens in foreign countries). But the distinction between citizens and aliens provides no basis
for depriving an alien like al-Marri, lawfully resident within the United
States and not the subject of an enemy nation, of those rights guaranteed
by the Due Process Clause. Rather, the Supreme Court has repeatedly
held that aliens situated like al-Marri have an unquestioned 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 VerdugoUrquidez, 494 U.S. at 271; 494 U.S. at 278 (Kennedy, J., concurring)
(observing that "[a]ll would agree . . . that the dictates of the Due Process
Clause of the Fifth Amendment protect" an alien lawfully within the
United States). The Government does not dispute or distinguish these
cases in its appellate brief; it simply ignores them. At oral argument
before the en banc court, however, the Government finally acknowledged that an alien legally resident in the United States, like al-Marri, has
the same Fifth Amendment due process rights as an American citizen.
For this reason, the Government had to concede that if al-Marri can be
detained as an enemy combatant, then the Government can also detain
any American citizen on the same showing and through the same process.
28
ii.
In view of the holdings in Hamdi and Padilla, we find it remarkable that the Government contends that they "compel the conclusion"
that the President may detain al-Marri as an enemy combatant. For
unlike Hamdi and Padilla, al-Marri is not alleged to have been part
of a Taliban unit, not alleged to have stood alongside the Taliban or
the armed forces of any other enemy nation, not alleged to have been
on the battlefield during the war in Afghanistan, not alleged to have
even been in Afghanistan during the armed conflict there, and not
alleged to have engaged in combat with United States forces anywhere in the world. See Rapp Declaration (alleging none of these
facts, but instead that "[a]l-Marri engaged in conduct in preparation
for acts of international terrorism intended to cause injury or adverse
effects on the United States"). Indeed, unlike Hamdi and Padilla, alMarri had been imprisoned in the United States by civil authorities on
criminal charges for more than a year before being seized by the military and indefinitely confined in a Navy brig as an enemy combatant.
In place of the "classic wartime detention" that the Government
argued justified Hamdis detention as an enemy combatant, see Br. of
Respondents at 20-21, 27, Hamdi, 542 U.S. 507 (No. 03-6696), or the
"classic battlefield" detention it maintained justified Padillas, see
Opening Br. for the Appellant at 16, 20, 29, 51, Padilla, 432 F.3d 386
(No. 05-6396), here the Government argues that al-Marris seizure
and indefinite detention by the military in this country are justified
"because he engaged in, and continues to pose a very real threat of
carrying out, . . . acts of international terrorism." And instead of seeking judicial deference to decisions of "military officers who are
engaged in the serious work of waging battle," Hamdi, 542 U.S. at
531-32, the Government asks us to defer to the "multi-agency evaluation process" of government bureaucrats in Washington made eighteen months after al-Marri was taken into custody. Neither the
holding in Hamdi nor that in Padilla supports the Governments contentions here.
In arguing to the contrary, the Government confuses certain secondary arguments it advanced in Hamdi and Padilla with the actual
holdings in those cases. As discussed above, both Hamdi and Padilla
upheld the Presidents authority pursuant to the AUMF to detain as
29
enemy combatants individuals (1) who affiliated with and fought on

behalf of Taliban government forces, (2) against the armed forces of
the United States and its allies, (3) on the battlefield in Afghanistan.
In both cases, however, the Government also contended that the
AUMF provided the President with even broader authority to subject
to military detention, as enemy combatants, persons otherwise
involved "in the global armed conflict against the al Qaeda terrorist
network." Br. of Respondents at 20-21, Hamdi, 542 U.S. 507 (No. 036996); see Opening Br. for the Appellant at 17-18, Padilla, 423 F.3d
386 (No. 05-6396).
But neither the Supreme Court in Hamdi, nor this court in Padilla,
accepted the Governments invitation to fashion such a broad construction of the AUMF. Instead, the Hamdi plurality emphasized the
narrowness of its holding, 542 U.S. at 509, 516-19, and the "limited
category" of individuals controlled by that holding, id. at 518. In
Padilla, we similarly saw no need to embrace a broader construction
of the AUMF than that adopted by the Supreme Court in Hamdi.
Indeed, the Government itself principally argued that Padilla was an
enemy combatant because he, like Hamdi, "engaged in armed conflict" alongside the Taliban "against our forces in Afghanistan." See
Opening Br. for the Appellant at 22-23, 27, Padilla, 423 F.3d 386
(No. 05-6396).15
15
In doing so, the Government acknowledged, Opening Br. for the

Appellant at 29-30, Padilla, 423 F.3d 386 (No. 05-6396), our distinguished colleague Judge Wilkinsons statement that "[t]o compare
[Hamdis] battlefield capture to the domestic arrest in Padilla v.
Rumsfeld is to compare apples and oranges," Hamdi v. Rumsfeld, 337
F.3d 335, 344 (4th Cir. 2003) (Wilkinson, J., concurring in the denial of
rehearing en banc), but explained that Judge Wilkinsons observation
came before the Government had proffered any evidence that Padilla had
carried arms alongside the Taliban against United States armed forces
during the conflict in Afghanistan. In other words, at the time Judge Wilkinson differentiated Hamdi from Padilla, the Governments allegations
against Padilla mirrored its allegations against al-Marri here that he
had associated with al Qaeda and engaged in conduct in preparation for
acts of terrorism. We agree with Judge Wilkinsons characterization: to
compare Hamdis battlefield capture to the domestic arrest of al-Marri is
indeed "to compare apples and oranges." Id.
30
Thus, the Government is mistaken in its representation that Hamdi

and Padilla "recognized" "[t]he Presidents authority to detain enemy
combatants during the current conflict with al Qaeda." Hamdi and
Padilla evidence no sympathy for the view that the AUMF permits
indefinite military detention beyond the "limited category" of people
covered by the "narrow circumstances" of those cases. Hamdi, 542
U.S. at 516-19. Therefore the Governments argument that Hamdi
and Padilla "compels the conclusion" that the AUMF authorizes the
President "to detain al-Marri as an enemy combatant" fails. Accord
post at 73 (Traxler, J., concurring in the judgment).
3.
The Government offers no other legal precedent, rationale, or
authority justifying its position that the AUMF empowers the President to detain al-Marri as an enemy combatant; indeed, at oral argument before the en banc court, the Government repeatedly
emphasized that it argued only that al-Marri may be detained under
the AUMF because he is an enemy combatant under established lawof-war principles explicated in Quirin and other precedent. Our dissenting colleagues go further, however. They contend that the definition of enemy combatant has somehow expanded to permit a person
to be so classified because of his criminal conduct on behalf of a terrorist organization. We have searched extensively for authority that
would support the dissents position; we have found none.
i.
First, the Supreme Courts most recent terrorism cases Hamdan
and Boumediene provide no support for the dissenters position. In
Hamdan, the Court held that because the conflict between the United
States and al Qaeda in Afghanistan is not "between nations," it is a
"conflict not of an international character" and so is governed by
Common Article 3 of the Geneva Conventions. See 126 S. Ct. at
2795; see also id. at 2802 (Kennedy, J., concurring).
Common Article 3 and other Geneva Convention provisions applying to non-international conflicts (in contrast to those applying to
international conflicts) simply do not recognize the "legal category"
of enemy combatant. See Third Geneva Convention, art. 3, 6 U.S.T.
31
at 3318. As the International Committee of the Red Cross the official codifier of the Geneva Conventions explains, "an enemy
combatant is a person who, either lawfully or unlawfully, engages in
hostilities for the opposing side in an international armed conflict";
in contrast, "[i]n non-international armed conflict combatant status
does not exist." Intl Comm. of the Red Cross, Official Statement:
The Relevance of IHL in the Context of Terrorism, at 1, 3 (Feb. 21,
2005), http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/terrorismihl-210705 (emphasis added).16
Perhaps for this reason, our dissenting colleagues and the Government ignore Hamdans holding that the conflict with al Qaeda in
Afghanistan is a non-international conflict and ignore the fact that, in
such conflicts, the legal category of enemy combatant does not exist.
Indeed, the Governments sole acknowledgment of Hamdan is a short
footnote in its appellate brief, in which it asserts that "the Court took
it as a given that Hamdan was subject to detention as an enemy combatant during ongoing hostilities." The weakness of this response is
apparent. Not only does it avoid the holding in Hamdan that the conflict between the United States and al Qaeda is a non-international
16
Notwithstanding this principle, we recognize that some commentators have suggested that "for such time as they take a direct part in hostilities," participants in non-international armed conflicts may, as a matter
of customary international 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 Terrorism, 118 Harv. L.
Rev. 2047, 2115 & n.304 (2005) [hereinafter Bradley & Goldsmith]
(internal quotation marks omitted). No precedent from the Supreme
Court or this court endorses this view, and the Government itself has not
advanced such an argument. This may be because even were a court to
follow this approach in some cases, it would not assist the Government
here. For the Government has proffered no evidence that al-Marri has
taken a "direct part in hostilities." Moreover, the United States has elsewhere adopted a formal treaty understanding of the meaning of the term
"direct part in hostilities," which plainly excludes al-Marri. See Message
from the President of the United States Transmitting Two Optional Protocols to the Convention on the Rights of the Child, S. Treaty Doc. No.
106-37, at VII (2000) (distinguishing between "immediate and actual
action on the battlefield" and "indirect participation," including gathering
and transmitting military information, weapons, and supplies).
32
conflict, but also it improperly suggests that the Supreme Court

approved Hamdans detention when the legality of that detention was
not before the Court.
In fact, two years after Hamdan issued, the Court once again
declined to resolve this very issue the legality of the detention of
those captured and detained in the conflict with al Qaeda outside the
United States. See Boumediene, 553 U.S. at ___, slip op. at 2
(expressly noting that the Court does "not address whether the President has authority to detain these petitioners" and that "questions
regarding the legality of the detention are to be resolved in the first
instance by the District Court"). Furthermore, in Boumediene, the
Court demonstrated no more sympathy for the Governments position
than it had in any of the other recent terrorism cases. Rather, the
Court expressly held that persons designated by the Executive "as
enemy combatants" and held by United States forces at Guantanamo
Bay must be afforded "the fundamental procedural protections of
habeas corpus" guaranteed by our Constitution, even though they
were foreign nationals who had been seized in foreign lands. Id. at
___, slip op. at 8, 70. The Court explained that "[t]he laws 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 ultimately to approve the
detention of Boumediene, Hamdan, and those like them, that would
not bolster the view that the Government can militarily detain alMarri as an enemy combatant.17 Because the legal status of enemy
17
The Supreme Court did not hold in Boumediene or Hamdan that

there is a non-international armed conflict between the United States and
al Qaeda within the United States. Non-international conflicts "occur[ ]
in the territory of one of the High Contracting Parties," Hamdan, 126
S. Ct. at 2795 (emphasis added) (quoting Third Geneva Convention, 6
U.S.T. at 3318) and Hamdan only found there to be a conflict
between the United States and al Qaeda in Afghanistan. Of course, alMarri is not a participant in any conflict involving the United States in
Afghanistan. Although the Government alleges that al-Marri attended an
al Qaeda training camp in Afghanistan years before September 11th, it
has proffered no evidence that al-Marri was involved in the conflict
between the United States and al Qaeda in Afghanistan nor could it,
for al-Marri has not been in Afghanistan at any point during that conflict.
33
combatant does not exist in non-international conflicts, the law of war

leaves the detention of persons in such conflicts to the applicable law
of the detaining country. In al-Marris case, the applicable law is our
Constitution. Under our Constitution, even if the Supreme Court
should hold that the Government may detain indefinitely Boumediene, Hamdan, and others like them, who were captured outside the
United States and lack substantial and voluntary connections to this
country, that holding would provide no support for approving alMarris military detention. For not only was al-Marri seized and
detained within the United States, he also has substantial connections
to the United States and so plainly is protected by the Due Process
Clause. See Wong Wing, 163 U.S. at 238; see also Verdugo-Urquidez,
494 U.S. at 271.
ii.
Other Supreme Court precedent similarly offers no support for the
position that persons lawfully resident in this country entitled to the
protections of our Constitution even ordinary American citizens
can lose their civilian status and become enemy combatants if they
have allegedly engaged in criminal conduct on behalf of, or associated with, an organization seeking to harm the United States. Of
course, a person who commits a crime should be punished, but when
a civilian protected by the Due Process Clause commits a crime, he
is subject to charge, trial, and punishment in a civilian court, not to
seizure and confinement by military authorities.
We recognize the understandable instincts of those who wish to
treat domestic terrorists as "combatants" in a "global war on terror."
Allegations of criminal activity in association with a terrorist organization, however, do not permit the Government to transform a civilian
into an enemy combatant subject to indefinite military detention, just
as allegations of murder in association with others while in military
service do not permit the Government to transform a civilian into a
soldier subject to trial by court martial. See United States ex rel. Toth
v. Quarles, 350 U.S. 11, 23 (1955) (holding that ex-servicemen, "like
other civilians, are entitled to have the benefit of safeguards afforded
those tried in the regular courts authorized by Article III of the Constitution").
34
To be sure, enemy combatants may commit crimes just as civilians

may. When an enemy combatant violates the law of war, that conduct
will render the person an "unlawful" enemy combatant, subject not
only to detention but also to military trial and punishment. Quirin,
317 U.S. at 31. But merely engaging in unlawful behavior does not
make one an enemy combatant. Quirin illustrates these distinctions
well. The Quirin petitioners were first enemy combatants associating themselves with the military arm of the German government with
which the United States was at war. They became unlawful enemy
combatants when they violated the law of war by "without uniform
com[ing] secretly through the lines for the purpose of waging war."
Id. By doing so, in addition to being subject to military detention for
the duration of the conflict as enemy combatants, they also became
"subject to trial and punishment by military tribunals for acts which
render their belligerency illegal." Id. Had the Quirin petitioners never
"secretly and without uniform" passed our "military lines," id., they
still would have been enemy combatants, subject to military detention, but would not have been unlawful enemy combatants subject to
military trial and punishment.
Neither Quirin nor any other precedent even suggests, as our dissenting colleagues seem to believe, that individuals with constitutional rights, unaffiliated with the military arm of any enemy
government, can be subjected to military jurisdiction and deprived of
those rights solely on the basis of their conduct on behalf of a terrorist
organization.18 In fact, Milligan rejected the Governments attempt to
18
The distinction between organizations and nations is not without

rationale. The law of war does not classify persons affiliated with terrorist organizations as enemy combatants for fear that doing so would
immunize them from prosecution and punishment by civilian authorities
in the capturing country. See, e.g., Message from the President of the
United States Transmitting the Protocol II Additional to the 1949 Geneva
Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflicts, S. Treaty Doc. No. 100-2, at IV (1987) (explaining President Reagans recommendation against ratifying a treaty
provision that "would grant combatant status to irregular forces" and so
"give recognition and protection to terrorist groups").
Moreover, a rule permitting indefinite military detention of members
of a "terrorist" organization as enemy combatants, in addition to being
35
do just this. There, the Court acknowledged that Milligans conduct

"joining and aiding" a "secret political organization, armed to
oppose the laws, and seek[ing] by stealthy means to introduce the
enemies of the country into peaceful communities, there to . . . overthrow the power of the United States" made him and his coconspirators "dangerous enemies to their country." 71 U.S. at 6, 130.
But the Government did not allege that Milligan took orders from any
enemy government or took up arms against this country on the battlefield. And so the Court held that the Government could not subject
Milligan to trial by military tribunal or treat him as an enemy combatant subject to military detention as a prisoner of war. Milligan was
an "enem[y] of the country" and associated with an organization seeking to "overthrow[ ] the Government" of this country, but he was still
a civilian and had to be treated as one. Id.
Although Milligan involved a time in which our democracy was
much younger, it dealt with a war fully as threatening to our country
as any present conflict. See id. at 88 (noting the Governments argument that Milligans military detention must be permitted because
"the facts are unprecedented" as is "the war out of which they grew").
Today, the Government contends that the fate of our nation requires
the military detention of al-Marri and others lawfully resident in this
country because of their membership in a terrorist organization. A
contrary to controlling precedent, Milligan, 71 U.S. at 130, could well
endanger citizens of this country or our allies. For example, a nation
could employ this rule to treat American members of an environmental
group, which it regards as a terrorist organization, as enemy combatants
and so subject those Americans to indefinite military detention. Under
definitions as nebulous as the ones proposed by our dissenting colleagues, these fears are hardly "completely unfounded." See post at 177
(Wilkinson, J., concurring in part and dissenting in part). Foreign leaders
who have already designated members of these environmental organizations "terrorists" might well, applying the dissents definitions, conclude
that those individuals are enemy combatants and thus detain them indefinitely without criminal process. See Hiroko Tabuchi, Japanese Are Hunting Humpbacks, Record (N.N.J.), Nov. 18, 2007, at A10 (reporting that
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).
36
century ago, the Government similarly contended that the military

detention of Milligan and other members of the Sons of Liberty lawfully resident in this country was necessary to "save the nation" from
the terrorist plots of the "one hundred thousand men enrolled in" that
organization. Id. at 102, 104. Thus Milligan, "one of [the Courts]
great landmarks," Reid, 354 U.S. at 30, firmly and clearly rejected the
argument the Government asserts here. The weakness of the dissents
brief attempts to distinguish Milligan attests to the strength of the precedent. (The concurrence does not even attempt a distinction.)
First, one of our dissenting colleagues maintains that "reliance on
Milligan" is "misplaced" because its principles "apply only after it has
been determined" that an individual "is a civilian, not a combatant."
Post at 182-83 (Wilkinson, J., concurring in part and dissenting in
part); see also post at 140. This contention ignores the Milligan
Courts express rejection of the Governments argument that Milligan, even if not subject to military trial, could be held by the military
as a prisoner of war during the duration of hostilities. See Milligan,
71 U.S. at 131. As the Hamdi plurality noted, that Milligan was not
a combatant and therefore not a prisoner of war was "central to" the
Milligan holding. 542 U.S. at 522 (noting if "Milligan [had] been captured while . . . assisting Confederate soldiers by carrying a rifle
against Union troops on a Confederate battlefield, the holding of the
Court might well have been different"). Thus, reliance on Milligan is
hardly "misplaced": there, the Supreme Court unequivocally rebuffed
an argument precisely parallel to the one the Government makes here
that an unarmed civilian captured in his home in the United States,
rather than while "carrying a rifle . . . on a . . . battlefield," could be
"detained under military authority for the duration of the conflict."
See id.
Second, and equally unconvincing, the dissenters apparently
believe that the enactment of the AUMF makes Milligans case distinguishable from al-Marris. See post at 117 (Williams, C.J., concurring
in part and dissenting in part) (acknowledging that Milligan governs
the rights of civilians but nevertheless finding that the AUMF permits
the President to declare al-Marri an enemy combatant); post at 140
(Wilkinson, J., concurring in part and dissenting in part) (asserting
that because Congress did not authorize use of military force against
"the Sons of Liberty, Milligans organization," but did, in the AUMF,
37
authorize the use of force against "al Qaeda, al-Marris organization,"

Milligans "constitutional force" does not apply). This argument
clearly fails, too, for, as we discuss in detail in the following section,
it misreads the AUMF. As the Government expressly conceded at oral
argument, the AUMF authorizes the detention of only enemy combatants. The AUMF does not purport to alter the definition of enemy
combatant and so provides no basis for distinguishing al-Marri from
Milligan or determining that al-Marri or anyone else "plainly qualifies" as an enemy combatant. Post at 140 (Wilkinson, J., concurring
in part and dissenting in part).
In sum, the dissents have not and cannot distinguish Milligan. The Governments allegations against Milligan mirror the Governments allegations against al-Marri. If the Governments
allegations here are true, like Milligan, al-Marri is deplorable, criminal, and dangerous, but, like Milligan, he is a civilian nonetheless and
must be treated as one for Congress certainly has not directed otherwise. Thus, we believe that the indefinite detention of al-Marri must
cease.19
19
We note that the Governments treatment of al-Marri, i.e., subjecting

him to military detention, which the Government insists "is not punishment," is at odds with the Governments repeated recognition that criminal terrorist conduct by aliens in this country merits punishment by a
civilian court, not indefinite military detention as an enemy combatant.
See, e.g., United States v. Abdi, 463 F.3d 547, 550 (6th Cir. 2006) (civilian prosecution of suspected al Qaeda terrorist who allegedly "indicated
a desire to shoot up a Columbus shopping mall with an AK-47");
United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004) (civilian prosecution of al Qaeda conspirator involved in the September 11th attacks);
United States v. Reid, 369 F.3d 619, 619-20 (1st Cir. 2004) (civilian
prosecution of terrorist allied with Bin Laden who attempted to destroy
airplane with explosives); United States v. Goba, 240 F. Supp. 2d 242,
244 (W.D.N.Y. 2003) (civilian prosecution of associates of al Qaeda,
including those who met with Bin Laden and trained in terrorist camps
in Afghanistan). And after long contending he was an enemy combatant,
the Government ultimately prosecuted even Jose Padilla in civilian court
for his crimes. This practice is hardly new. Even the civilian coconspirators of the Quirin petitioners were tried for their crimes in civilian courts. See Cramer v. United States, 325 U.S. 1 (1945); United States
v. Haupt, 136 F.2d 661 (7th Cir. 1943).
38
iii.
Moreover, the AUMF does not assist our dissenting colleagues.
The AUMF clearly states that it is "intended to constitute specific
statutory authorization within the meaning of section 5(b) of the War
Powers Resolution." 2(b), 115 Stat. 224. And under the War Powers
Resolution, such statutory authorization permits the President to "exercise[ ]" his powers "as Commander-in-Chief to introduce United
States Armed Forces into hostilities" and to remain engaged in such
hostilities for longer than sixty days. 50 U.S.C.A. 1541(c), 1544(b)
(West 2003). Thus, to say that Congress did not have a dramatic
The Governments treatment of others renders its decision to halt alMarris 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 to indefinite military detention, rather than
see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such
a stratagem would contravene Hamdis injunction that "indefinite detention for the purpose of interrogation is not authorized." 542 U.S. at 521.
We note, however, that not only has the Government offered no other
explanation for abandoning al-Marris prosecution, it has even propounded an affidavit in support of al-Marris continued military detention, stating that he "possesses information of high intelligence value."
See Rapp Declaration. Moreover, former Attorney General John Ashcroft
has explained that the Government decided to declare al-Marri an enemy
combatant only after he became a "hard case" by "reject[ing] numerous
offers to improve his lot by . . . providing information." John Ashcroft,
Never Again: Securing America and Restoring Justice 168-69 (2006).
The Governments recent admission in other litigation that it has subjected al-Marri to repeated interrogation during his imprisonment in the
Naval Brig would seem to substantiate al-Marris contention. See Decl.
of Robert H. Berry, Jr., Defense Intelligence Agency, 8, 9, Ex. 2 in
Def.s Resp. to Pl.s Mot. for Preservation 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
of the Al-Marri interrogation sessions . . . were destroyed during the time
period between December 1, 2004, and March 31, 2005," "subsequent
investigation revealed . . . original or duplicate recordings of nine interrogation sessions").
39
expansion of the Executives military detention power in mind when

it passed the AUMF is not "to say that Congress had very little in
mind at all." Post at 136 (Wilkinson, J., concurring in part and dissenting in part). Rather, it is to say that in the AUMF, as in other general authorizations for the use of force passed pursuant to the War
Powers Resolution, Congress intended to provide the statutory authorization that it insists is required before the President may engage the
United States Armed Forces in extended hostilities abroad.
At least some of our dissenting colleagues, however, apparently
believe that enactment of the AUMF not only "activated the Presidents war powers," Hamdan, 126 S. Ct. at 2775, but also substantially expanded and redefined the legal category of enemy combatant.
They are wrong. Plainly, the AUMF is not "a specific and targeted
congressional directive" aimed at which individuals "may be
detained[ ] for purposes of domestic law." Post at 116 (Williams, C.J.,
concurring in part and dissenting in part). Rather, precisely because
the AUMF contains only a broad grant of war powers and lacks any
specific language authorizing detention, the Hamdi plurality
explained that its opinion "only finds legislative authority to detain
under the AUMF once it is sufficiently clear that the individual is, in
fact, an enemy combatant." 542 U.S. at 523 (emphasis added).
Although the military detention of enemy combatants like Hamdi is
certainly "a fundamental incident of waging war," id. at 519, the military detention of civilians like al-Marri just as certainly is not.
Even assuming the Constitution permitted Congress to grant the
President such an awesome and unprecedented power, if Congress
intended to grant this authority, it could and would have said so
explicitly. The AUMF lacks the particularly clear statement from
Congress that would, at a minimum, be necessary to authorize the
indefinite military detention of civilians as enemy combatants. See,
e.g., Greene v. McElroy, 360 U.S. 474, 508 (1959) (rejecting Government argument that executive orders and statutes permitted deprivation of liberty rights absent "explicit authorization"); Duncan v.
Kahanamoku, 327 U.S. 304, 324 (1946) (rejecting Government argument that statute authorized trial of civilians by military tribunals
because Congress could not have intended "to exceed the boundaries
between military and civilian power, in which our people have always
believed"); Ex Parte Endo, 323 U.S. 283, 300 (1944) (rejecting Gov-
40
ernment argument that a "wartime" executive order and statute permitted detention of citizen of Japanese heritage when neither "use[d]
the language of detention"); Brown v. United States, 12 U.S. (8
Cranch) 110, 128-29 (1814) (rejecting Government argument that
declaration of war authorized confiscation of enemy property because
it did not clearly "declare[ ]" the legislatures "will"). We are exceedingly reluctant to infer a grant of authority that is so far afield from
anything recognized by precedent or law-of-war principles, especially
given the serious constitutional concerns it would raise.
Additionally, nothing in the legislative history of the AUMF supports the view that Congress intended the AUMF to provide the President with the unprecedented power claimed here.20 In fact, the
legislative history suggests just the opposite that in the AUMF
Congress intended neither to expand the definition of enemy combatant to include civilians nor to authorize the military seizure and
detention of civilians within the United States. Senator Daschle has
recounted that "[l]iterally minutes before the Senate cast its vote" on
the AUMF, "the administration sought to add the words in the United
States and after appropriate force in the agreed-upon text" to give
"the President broad authority to exercise expansive powers not just
overseas where we all understood he wanted authority to act but
right here in the United States, potentially against American citizens."
Tom Daschle, Editorial, Power We Didnt Grant, Wash. Post, Dec.
23, 2005, at A21. The Senate refused to "accede to this extraordinary
request for additional authority." Id.; see also Wartime Executive
20
Judge Wilkinson challenges our reliance on legislative history. Post

at 138-39. But none of our conclusions rests solely, or even principally,
on analysis of the legislative history of the AUMF and the Patriot Act.
We fully recognize that several of the statements to which we cite were
made after the enactment of those statutes. But these statements both
those made contemporaneously and those made after the fact do nevertheless provide further evidence regarding the limited scope of the
AUMF. See Boumediene, 553 U.S. at ___, slip op. at 8 (approving as
"correct" reliance on "legislative history when construing" a related statute, the MCA). Moreover, we cannot help but observe that although
Judge Wilkinson criticizes us for relying on comments from the "distinguished members of the legislative branch," post at 139, he himself relies
extensively on comments of those much further removed from the legislative process distinguished legal academics.
41
Power and the National Security Agencys Surveillance Authority:

Hearings Before the 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 would give the President broad authority not just overseas, but
also in the United States."). The congressional debates on the AUMF
similarly indicate that key members of Congress believed that the
AUMF only authorized the use of miliary force abroad, not within the
United States. See, e.g., 147 Cong. Rec. 17,047 (2001) (statement of
Sen. Biden) ("In extending this broad authority to cover those planning, authorizing, committing, or aiding the attacks it should go
without saying, however, that the resolution is directed only at using
force abroad to combat acts of international terrorism." (emphasis
added)); 147 Cong. Rec. 17,111 (2001) (statement of Rep. Lantos)
("The resolution before us empowers the President to bring to bear the
full force of American power abroad in our struggle against the
scourge of international terrorism." (emphasis added)).
Furthermore, the day after Congress enacted the AUMF, it began
consideration of another statute, which it enacted a few weeks later,
that did explicitly authorize the President to arrest and detain "terrorist aliens" living within the United States believed to have come here
to perpetrate acts of terrorism. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272
[hereinafter Patriot Act].21 However, the Patriot Act only authorizes
21
The legislative history of the Patriot Act (originally titled the AntiTerrorism Act of 2001) indicates that the Administration initially
requested the power to indefinitely detain "terrorist aliens" within the
United States. But in legislative hearings, members of both parties
fiercely objected to this authorization, and several viewed authorization
of indefinite detention as unconstitutional. See, e.g., Homeland Defense:
Hearing Before the S. Comm. on the Judiciary, 107th Cong. 18, 26, 28
(2001); Administrations Draft Anti-Terrorism Act of 2001: Hearings
Before the H. Comm. on the Judiciary, 107th Cong. 21, 40, 54 (2001).
In the course of these hearings, no one no legislator and no member
of the Administration suggested that the AUMF already granted the
President the power to order indefinite military detention of some terrorists within the United States. Congressional opposition to indefinite
42
detention for a limited time pending deportation or trial, accompanied

by civilian law enforcement processes and careful congressional oversight; it expressly prohibits "indefinite detention" of "terrorist aliens."
The explicit authorization for limited detention and criminal process
in civilian courts in the Patriot Act provides still another reason why
we cannot assume that in the AUMF Congress silently empowered
the President to order the indefinite military detention of civilian "terrorist aliens" as enemy combatants without any criminal process.
We note that this does not mean that we accept al-Marris contention that the Patriot Act affirmatively prohibits the detention of all
suspected terrorist aliens within this country as enemy combatants.
Plainly, the Patriot Act does not eliminate the statutory authority provided the President in the AUMF to detain individuals who fit within
the "legal category" of enemy combatant; thus, if an alien "qualif[ies]" as an enemy combatant, then the AUMF authorizes his detention. Hamdi, 542 U.S. at 516. But if there were any conflict between
the Patriot Act and the AUMF as to the legality of the detention of
terrorist alien civilians within the United States, we would have to
give precedence to the Patriot Act for while the Patriot Acts
explicit and specific focus is on detention of terrorist aliens within the
United States, the AUMF lacks any language permitting such detention. See id. at 519. And the Supreme Court has instructed that "a
more specific statute will be given precedence over a more general
one, regardless of their temporal sequence." Busic v. United States,
detention ultimately forced the Administration to accept elimination of
indefinite detention from the Patriot Act. See Patriot Act 412(a); see
also 147 Cong. Rec. 19,507 (2001) (Senator Hatch relating that "Senator
Kennedy, Senator Kyl, and I worked out a compromise that limits the
[detention] provision"); 147 Cong. Rec. 20,448 (2001) (Representative
Delahunt stating that negotiations had led to a "better bill" than that
reflected in the initial proposal, which included authorization of indefinite detention). That the Administration and Congress felt the need during the hearings and markup to address indefinite detention of terrorists
in such detail and at such length certainly suggests that no one believed
that the AUMF, passed just days before the Patriot Act, already granted
the President such authority.
43
446 U.S. 398, 406 (1980); see also Edmond v. United States, 520 U.S.
651, 657 (1997).22
iv.
Finally, we do not find our dissenting colleagues respective new
definitions of enemy combatant at all compelling. The dissents do not
contend that, under traditional law-of-war principles, enemy combatant status would extend to al-Marri. See, e.g., post at 116 (Williams,
C.J., concurring in part and dissenting in part) ("The plurality opinion
may very well be correct that, under the traditional law of war, persons not affiliated with the military of a nation-state may not be con22
Judge Williams acknowledges that the Patriot Act prohibits indefinite

detention of unarmed alleged terrorist aliens captured in the United
States, and she recognizes that the Patriot Act, as the "more-specific provision[ ]," governs if it "deal[s] with the same subject matter" as the
AUMF. Post at 119. Yet she refuses to recognize that her expansive
interpretation of the AUMF permits indefinite detention of precisely the
same persons (unarmed alleged terrorist aliens captured in the United
States) whose indefinite detention is prohibited by the Patriot Act. The
sole rationale Judge Williams offers for refusing to hold the Patriot Act
controls given this conflict is that, in her view, the two statutes "refer"
to presidential powers set forth in different sections of the Constitution
and, therefore, should not be read to conflict. Post at 119 (suggesting that
the Patriot Act "refer[s] to the Presidents power" under the Take Care
Clause, while the AUMF "relates to the Commander-in-Chief power").
Even if this view is correct, the Supreme Court has never suggested that
this is a relevant consideration in determining whether two statutes conflict. Indeed, Judge Williams has not cited, and we have not found, any
authority to support such an analysis. The Supreme Court has long
directed that courts follow the "well settled rule" that a specific statute
controls over a general one as a means to ascertain legislative intent.
Townsend v. Little, 109 U.S. 504, 512 (1883) (noting that when "general
and specific provisions" are "in apparent contradiction, whether in the
same or different statutes," the specific will "qualify[ ] and supply[ ]
exceptions to the general"); Kepner v. United States, 195 U.S. 100, 125
(1904); see also Bulova Watch Co. v. United States, 365 U.S. 753, 758
(1961) (collecting cases). Where indeed whether legislation "refer[s]" to a specific executive power permitting the President to enforce
the congressional authorization matters not at all in making this determination.
44
sidered enemy combatants."); post at 162, 173 (Wilkinson, J.,

concurring in part and dissenting in part) ("Traditionally, the definition of enemy has been state-based . . . .").23 Instead, to justify alMarris indefinite military detention, the dissents resort to inventing
novel definitions of enemy combatant, drawing on their own beliefs
as to when detention is appropriate. That these judicially-created definitions differ so markedly from one another follows from the fact that
each is simply the product of judicial conjecture; any limits on whom
the Executive may detain as an enemy combatant are thus left to an
individual judge. This is particularly troubling because, as our distinguished colleague has observed, "it is difficult to conceive of an area
of governmental activity in which the courts have less competence
than military affairs." Post at 142 (Wilkinson, J., concurring in part
and dissenting in part) (quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973)).
Moreover, Supreme Court precedent seems to foreclose the dissenters rejection of traditional law-of-war principles. On every occasion in which the Court has considered even tangentially the
important issues at stake in this case, it has invoked and relied on traditional law-of-war principles for guidance. See, e.g., Quirin, 317
U.S. at 27-38 ("From the very beginning of its history this Court has
recognized and applied the law of war . . . ."). Indeed, one of the dissenters somewhat grudgingly recognizes this. See post at 175 (Wilkinson, J., concurring in part and dissenting in part) (acknowledging that
"[t]he Supreme Court insists we consult" traditional law-of-war principles in determining enemy combatant status).
In Hamdi, the Court had the opportunity to interpret the AUMF to
incorporate new definitions like those proposed by the dissenters, but
it refused to do so. Rather, the Court continued to hue closely to traditional and "longstanding law-of-war principles." 542 U.S. at 521. Of
course, the Hamdi plurality noted that "[t]he permissible bounds" of
"[t]he legal category of enemy combatant" would "be defined by the
lower courts as subsequent cases are presented to them." Id. at 522
23
The concurrence takes a different view, apparently contending that

traditional law-of-war principles permit the military detention of al-Marri
and persons like him. See post at 77 (Traxler, J., concurring in the judgment). For the reasons set forth above, we disagree.
45
n.1. But nothing in any of the Hamdi opinions suggests that lower
courts, absent express congressional authorization, are free to venture
beyond traditional law-of-war principles to fashion these "permissible
bounds." Reading Hamdi to permit such an action is a huge leap. For
four times in as many pages the Hamdi plurality cautioned that it was
only willing to find that the AUMF authorized detention, as an enemy
combatant, of a person who fit within "the narrow category" presented
a person affiliated with an enemy nation, captured on a battlefield,
and engaged in armed conflict against the United States. Id. at 516-19.
Contrary to our dissenting colleagues contentions, these traditional
law-of-war principles are hardly "quaint" or "outmoded." Post at 128,
175, 185 (Wilkinson, J., concurring in part and dissenting in part).
Rather, as the Supreme Court recently counseled, "[e]stablished legal
doctrine . . . must be consulted for its teaching. Remote in time it may
be; irrelevant to the present it is not." Boumediene, 553 U.S. at ___,
slip op. at 68.
Furthermore, on the very same day that the Court issued Hamdi,
four Justices expressly declared that in their view the AUMF "does
not authorize . . . the protracted, incommunicado detention of American citizens arrested in the United 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 Scalia
declined to reach the issue in Padilla, when dissenting in Hamdi, he
similarly rejected the argument that the AUMF authorized the detention of United States citizens absent invocation of the Suspension
Clause, stating that the AUMF did not "authorize[ ] detention of a citizen with the clarity necessary to satisfy the interpretive canon that
statutes should be construed so as to avoid grave constitutional concerns." 542 U.S. at 554, 574. Given that the Government has now
expressly conceded that aliens lawfully residing in the United States,
like al-Marri, have the same due process rights as citizens, it would
seem that a majority of the Court not only would reject the new definitions that the dissents propose, but in fact has already done so.
Although we respect our colleagues hard work, we also find the
specific rationales they offer in support of their respective new definitions totally unpersuasive.
46
a.
Judge Williams finds that in the AUMF, Congress has authorized
the indefinite military detention, as an "enemy combatant," of any
individual "who meets two criteria: (1) he attempts or engages in belligerent acts against the United States, either domestically or in a foreign combat zone; (2) on behalf of an enemy force." Post at 116. Her
definition requires neither an affiliation with an enemy nation nor
capture on a battlefield, nor anything else but attempted injurious acts
"against the United States" on behalf of some hostile, organized
group. As we have explained above, this new definition finds no support in the AUMF, Hamdi, or Quirin. We note that Judge Williams
appears to place substantial weight on Quirins reference to "enemy
belligerents, including those acting under the direction of the armed
forces of the enemy," 317 U.S. at 37 (emphasis added), to conclude
that an enemy combatant need only be affiliated with an "enemy
force," rather than a nation-state. Post at 116. She ignores the fact that
the Court in Quirin defined "armed forces" in accord with traditional
law-of-war principles as forces of "belligerent nations." 317 U.S. at
30 (emphasis added).
Judge Williams attempts to limit the indefinite nature of the detention allowed under her broad definition of enemy combatant by associating al-Marri with ongoing hostilities in Afghanistan. See post at
117-18. But this invocation of a specific conflict in a specific country
does nothing to circumscribe her construction of the AUMF, which
imposes no limits on detention as long as somewhere in the world,
someone is attempting belligerent acts against the United States on
behalf of an "enemy force." Indeed, in response to questions from the
en banc court, the Deputy Solicitor General admitted that in the Governments view, the Executive could hold an individual like al-Marri
in military custody without charges, not just until the end of the conflict in Afghanistan, but "during the course of" all "ongoing hostilities," which he conceded could be "for a long time." Cf. Boumediene,
553 U.S. at ___, slip op. at 41 (noting that the duration of the current
conflict "is already among the longest wars in American history").
In sum, by abandoning precedent and traditional law-of-war principles, Judge Williams renders the term "enemy combatant" utterly
malleable. Such a definition presents serious constitutional concerns.
47
For an amorphous definition like that proposed by Judge Williams,

lacking any of the limits provided by precedent and traditional law-ofwar principles, simply will not ensure that "detention without trial is
the carefully limited exception," rather than the rule. Hamdi, 542
U.S. at 529 (quoting Salerno, 481 U.S. at 755); see also supra n.19.
We cannot agree that in the AUMF Congress replaced the narrow,
established definition of enemy combatant with such a vague and
unbounded one.
b.
Judge Wilkinson takes a very different, but no more persuasive,
approach. Unlike every other member of this court, he maintains that
the AUMF must be interpreted solely in terms of its broad language.
See post at 133-43. Under this approach, the AUMF yields no definition of enemy combatant and thus, as Judge Wilkinson acknowledges,
imposes no "limiting principle on enemy combatant detentions." Post
at 176. Recognizing the necessity for such limits, Judge Wilkinson
then creates constitutional criteria for establishing enemy combatant
status. He proposes that to be classified as an enemy combatant subject to indefinite military detention:
[a] person must (1) be a member of (2) an organization or
nation against whom Congress has declared war or authorized the use of military force, and (3) knowingly plans or
engages in conduct that harms or aims to harm persons or
property for the purpose of furthering the military goals of
the enemy nation or organization.
Post at 179. He explains, praises, and then applies these criteria to alMarri, unsurprisingly concluding that al-Marri meets them and therefore is an enemy combatant. Post at 175-85. Without in any way denigrating Judge Wilkinsons extensive efforts, we do not believe that
the approach he advocates is open to us. In addition to the problems
set forth above, several other factors make such an approach untenable.
First, Judge Wilkinsons statutory analysis cannot be reconciled
with that of the Supreme Court in Hamdi. There, the Court expressly
relied on traditional law-of-war principles to interpret the AUMF. 542
48
U.S. at 517-21. Indeed, just this term, when discussing Hamdi, the
Supreme Court characterized the holding of that case as resting on
traditional law-of-war principles, explaining that the "detention of
individuals who fought against the United States in Afghanistan . . .
is so fundamental and accepted an incident to war" that it constitutes
"an exercise of the necessary and appropriate force Congress has
authorized the President to use." Boumediene, 553 U.S. at ___, slip
op. at 2 (internal quotation marks omitted). Thus, although Judge Wilkinson defends his statutory analysis by asserting that we must "giv[e
the] text [of the AUMF] some semblance of the meaning that Congress intended for it," post at 157, he utterly fails to acknowledge that
the Supreme Court has twice held that the AUMF evinces Congresss
intent to incorporate established law-of-war principles.
Second, by refusing to construe the AUMF through the lens of traditional law-of-war principles, as Hamdi did (and we do), Judge Wilkinson ignores a construction that avoids constitutional difficulties
and instead chooses one that abounds in them. See post at 156 (recognizing the "serious constitutional issues that result" from giving full
effect to the broad language of the AUMF); see also post at 131-32,
158-59, 176-77. This approach clearly violates the settled constitutional avoidance doctrine, which requires that, whenever possible, a
statute be construed to avoid rather than "raise serious constitutional
problems." See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.
& Constr. Trades Council, 485 U.S. 568, 575 (1988) (collecting
cases). The Supreme Court has repeatedly stressed the importance of
this doctrine. See, e.g., Spector Motor Serv. v. McLaughlin, 323 U.S.
101, 105 (1944) (explaining that this doctrine is "more deeply rooted
than any other in the process of constitutional adjudication"). Thus,
when, as here, a court can choose between a construction of a statute
that avoids constitutional problems and one that "would raise" them,
the former "prevail[s]." Clark v. Martinez, 543 U.S. 371, 380-82
(2005). Because "one of the [doctrines] chief justifications is that it
allows courts to avoid the decision of constitutional questions," a
court must avoid an interpretation that raises serious constitutional
questions regardless of whether the courts concerns are borne out on
full consideration. Id. at 381 (emphasis in original). Of particular relevance here, a court must avoid an interpretation that raises serious
constitutional questions "whether or not those constitutional problems
pertain to the particular litigant before the Court." Id.
49
Nor do the difficulties with Judge Wilkinsons approach end with

his statutory analysis. After rejecting reliance on law-of-war principles in interpreting the AUMF, Judge Wilkinson makes the startling
contention that his constitutional criteria for defining enemy combatant "conform to the evolving principles of the law of war." Post at
175. We find it very strange indeed that he refuses to accord law-ofwar principles any statutory relevance but then ascribes them a constitutional significance that would limit both the executive and legislative branches. Moreover, Judge Wilkinson offers no legal authority
for the assertion that the law of war has in fact "evolved" to provide
a basis for his proposed criteria, other than his own "emphatic[ ] conten[tion]" that it has. Post at 175.24 As Judge Wilkinson acknowledges, changes in the law of war typically appear in treaties or
international agreements, see post at 161, yet no treaty or agreement
suggests any change in or evolution from the traditional law-of-war
definition of enemy combatant.
Perhaps recognizing the difficulties outlined above, the Government has not in any of its extensive legal briefs or during its lengthy
24
In response to this assertion, Judge Wilkinson surprisingly contends

that the AUMF provides "legal authority" for his view that the law of war
has "evolved" to support his criteria. Post at 174. In none of the Supreme
Courts recent terrorism cases has it recognized the AUMF as evidencing
any "evol[ution]" in law-of-war principles. To the contrary, the Court has
consistently interpreted the AUMF as circumscribed by traditional lawof-war principles. Indeed, earlier in his opinion, Judge Wilkinson himself
repeatedly and correctly recognizes that judges have consistently interpreted the AUMF in this manner. See, e.g., post at 160. Judge Wilkinsons contention that the AUMF evidences an evolution in law-of-war
principles not only ignores governing precedent, it also creates an
entirely circular argument. First, Judge Wilkinson finds it necessary to
determine the "constitutional limits" on the authority granted by the
AUMF. Post at 156. Then he posits that the "law of war . . . informs"
these constitutional limits on the AUMF. Post at 160. And finally he
identifies the AUMF itself as the sole legal authority supporting his conception of the evolving law of war, which assertedly "informs" the constitutional limits on the AUMF. Post at 174-75. Of course, when a statute
itself somehow informs the principles governing the constitutional
review of the power it authorizes, the constitutionality of that authorization inevitably follows.
50
oral arguments espoused Judge Wilkinsons criteria either as a basis

for interpreting the AUMF or as an independent set of constitutional
limits on executive and congressional authority. Rather, when pressed
at oral argument as to the source of the criteria for determination of
enemy combatant status in this case, the Deputy Solicitor General
assured us that the Government relied only on the traditional law-ofwar principles articulated in Hamdi and Quirin.
In the last analysis, Judge Wilkinsons approach seems to be driven
by his undoubtedly sincere belief that his new criteria best identify
those individuals who should qualify as enemy combatants in our
conflict with al Qaeda. Perhaps so. However, surely the determination
of who should be classified as an enemy combatant is a task best left
in the first instance to the political branches. See Boumediene, 553
U.S. at ___, slip op. at 68 (recognizing that when judges consider "the
procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches"). Neither the President nor Congress has indicated any
intent or desire to adopt Judge Wilkinsons new definition of enemy
combatant. Rather, both political branches have been content to be
guided by the traditional law-of-war principles against which the
AUMF was enacted.
Given the total absence of authority for Judge Wilkinsons
approach, we cannot adopt it, particularly in view of the Governments considered failure to champion this approach. Before concluding our discussion of Judge Wilkinsons position, we want to
acknowledge his stirring statements as to why criminal process is illsuited to deal with the unique problems presented by the prosecution
of terrorists. Post at 147-51. But see Richard B. Zabel & James J.
Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in
the Federal Courts 5 (2008) (analyzing data from over one hundred
international terrorism cases prosecuted in U.S. federal courts and
concluding that the criminal justice "system is generally wellequipped to handle most terrorism cases"). Whatever the merits of
Judge Wilkinsons statements, we want to be clear that our rejection
of his approach does not stem from some sort of "preference" for the
criminal justice system. Post at 143. We reject Judge Wilkinsons
position because we conclude, for all of the reasons set forth above,
51
that al-Marri is a civilian, and our Constitution demands, not prefers,

that civilians be afforded the rights inherent in that system.25
25
Judge Wilkinson also contends that the military detention of al-Marri

and persons like him strikes the proper "balance" between criminal prosecution and military detention, that "the best way to maximize liberty for
all" is to remove such persons from the criminal justice system so as not
to "dilute the core protections of" that system, and that extending criminal process to these people "risks pushing the executive . . . in a more
extreme direction." Post at 152-53. If true, this might provide some sort
of philosophical (albeit not legal) justification for al-Marris military
detention. But recent admissions by the Administration itself, in fact,
indicate that military detention in the recent conflicts has not achieved
the proper "balance," but rather has permitted the Executive to pursue a
very "extreme direction." In this vein, we note the admission by CIA
director Michael Hayden that the CIA waterboarded al Qaeda suspects
in order to extract intelligence, see Dan Eggen, White House Defends
CIAs Use of Waterboarding in Interrogations, Wash. Post, Feb. 7, 2008,
at A3; Haydens acknowledgment that the CIA destroyed hundreds of
hours of videotapes documenting interrogation of two al Qaeda operatives, sparking separate investigations by the Justice Department and the
House Intelligence Committee, see Mark Mazzetti, CIA Destroyed 2
Tapes Showing Interrogations, N.Y. Times, Dec. 7, 2007, at A1; Mark
Mazzetti & David Johnston, U.S. Announces Criminal Inquiry Into CIA
Tapes, 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 Bushs disclosure that at least fourteen al Qaeda
suspects were held for years, secretly and without charges, in covert CIA
"black sites" outside the United States, see Jane Mayer, The Black Sites,
New Yorker, Aug. 13, 2007, at 46; Sheryl Gay Stolberg, President
Moves 14 Held in Secret to Guantanamo, N.Y. Times, Sept. 7, 2006, at
A1; the public admission by Secretary of State Condoleezza Rice that the
United States mishandled the case of Canadian Maher Arar, who was
detained by United States officials in 2002 and deported to Syria, where
Arar was allegedly held for ten months in a 3-by-6-foot cell and repeatedly beaten by Syrian interrogators, often with frayed electrical cables,
see Rice Admits U.S. Erred in Deportation, N.Y. Times, Oct. 25, 2007,
at A10; Ian Austen, Canada Will Pay $9.75 Million to Man Sent to Syria
and Tortured, N.Y. Times, Jan. 27, 2007, at A5; and, finally, the recently
declassified March 14, 2003, memorandum of the Office of Legal Counsel, advising Pentagon officials that neither federal laws prohibiting
assault, maiming, and other crimes nor the U.N. Convention Against
52
v.
In sum, neither the Government nor our dissenting colleagues have
offered, and although we have exhaustively searched, we have not
found, any authority that permits us to hold that the AUMF empowers
the President to detain al-Marri as an enemy combatant. If the Governments allegations are true, and we assume they are for present
purposes, al-Marri, like Milligan, is a dangerous enemy of this nation
who has committed serious crimes and associated with a secret terrorist organization that has engaged in hostilities against us. But, like
Milligan, al-Marri is still a civilian: he does not fit within the "permissible bounds of" "[t]he legal category of enemy combatant." Hamdi,
542 U.S. at 522 n.1. Therefore, we believe the AUMF provides the
President no statutory authority to order the military to seize and
indefinitely detain al-Marri.
Torture nor customary international law prohibiting torture would apply
to military interrogation of al Qaeda detainees overseas, because the
Presidents authority as Commander-in-Chief overrode such restrictions,
see Dan Eggen & Josh White, Memo: Laws Didnt Apply to Interrogators, Wash. Post, Apr. 2, 2008, at A1.
53
Volume 2 of 4
55
C.
Thus, we turn to the Governments final contention. The Government summarily argues that even if the AUMF does not authorize alMarris seizure and indefinite detention as an enemy combatant, the
President has "inherent constitutional authority" to order the military
to seize and detain al-Marri. According to the Government, the Presidents "war-making powers" afford him "inherent" authority to subject persons legally residing in this country and protected by our
Constitution to military arrest and detention, without the benefit of
any criminal process, if the President believes these individuals have
"engaged in conduct in preparation for acts of international terrorism." See Rapp Declaration. Given that the Government has now
acknowledged that aliens lawfully residing in the United States have
the same due process rights as United States citizens, this is a breathtaking claim and one that no member of the court embraces.
To assess claims of presidential power, the Supreme Court has long
recognized, as Justice Kennedy stated most recently, that courts look
to the "framework" set forth by Justice Jackson in Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.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 conjunction with those
of Congress." Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum," id., but "[w]hen
the President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb," id. at 637.
Hence, to evaluate the Presidents constitutional claim, we must first
look to the "expressed or implied will of Congress" as to detention of
aliens captured within the United States alleged to be engaged in terrorist activity.
1.
In contrast to the AUMF, which is silent on the detention of
asserted alien terrorists captured and held within the United States, in
the Patriot Act, enacted shortly after the AUMF, Congress carefully
stated how it wished the Government to handle aliens believed to be
56
terrorists who were seized and held within the United States. The
Patriot Act provides the Executive with broad powers to deal with
"terrorist aliens," but it explicitly prohibits their indefinite detention.
Section 412 of the Patriot Act, entitled "Mandatory Detention of
Suspected Terrorists," permits the short-term "[d]etention of
[t]errorist [a]liens." Patriot Act 412(a). The statute authorizes the
Attorney General to detain any alien whom he "has reasonable
grounds to believe": (1) "seeks to enter the United States" to "violate
any law of the United States relating to espionage or sabotage" or to
use "force, violence, or other unlawful means" in opposition to the
government of the United States; (2) "has engaged in a terrorist activity"; or (3) is "likely to engage after entry in any terrorist activity,"
has "incited terrorist activity," is a "representative" or "member" of a
"terrorist organization," is a "representative" of a "group that endorses
or espouses terrorist activity," or "has received military-type training"
from a terrorist organization. Id.; 8 U.S.C.A. 1182(a)(3)(A)-(B)
(West 2007); see also 8 U.S.C.A. 1227(a)(4)(A)(i), (a)(4)(A)(iii),
(a)(4)(B) (West 2007). In addition, the Patriot Act authorizes the
Attorney General to detain any other alien who "is engaged in any
other activity that endangers the national security of the United
States." Patriot Act 412(a). In particular, the Patriot Act permits the
Attorney General to "take into custody" any "terrorist aliens" based
only on the Attorney Generals "belie[fs]" as to the aliens threat, with
no process or evidentiary hearing, and judicial review available only
through petition for habeas corpus. Id.
Recognizing the breadth of this grant of power, however, Congress
also imposed strict limits in the Patriot Act on the duration of the
detention of such "terrorist aliens" within the United States. Thus, the
Patriot Act expressly prohibits unlimited "indefinite detention";
instead it requires the Attorney General either to begin "removal proceedings" or to "charge the alien with a criminal offense" "not later
than 7 days after the commencement of such detention." Id. If a terrorist aliens removal "is unlikely for the reasonably foreseeable
future," he "may be detained for additional periods of up to six
months" if his release "will threaten the national security of the
United States." Id. But no provision of the Patriot Act allows for
unlimited indefinite detention. Moreover, the Attorney General must
provide the legislature with reports on the use of this detention
57
authority every six months, which must include the number of aliens
detained, the grounds for their detention, and the length of the detention. Id. 412(c).
Therefore, the Patriot Act establishes a specific method for the
Government to detain aliens affiliated with terrorist organizations
who the Government believes have come to the United States to
endanger our national security, conduct espionage and sabotage, use
force and violence to overthrow the government, engage in terrorist
activity, or are likely to engage in any terrorist activity. Congress
could not have better described the Governments allegations against
al-Marri and Congress decreed that individuals so described are
not to be detained indefinitely, but only for a limited time, and only
by civilian authorities, prior to deportation or criminal prosecution.
In sum, Congress has carefully prescribed the process by which it
wishes to permit detention of "terrorist aliens" within the United
States, and it has expressly prohibited the indefinite detention the
President seeks here. The Governments argument that the President
may indefinitely detain al-Marri is thus contrary to Congresss
expressed will. "When the President takes measures incompatible
with the expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own constitutional
powers minus any constitutional powers of Congress over the matter."
Youngstown, 343 U.S. at 637 (Jackson, J., concurring). As the
Supreme Court has recently explained, "[w]hether or not the President
has independent power . . . he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his
powers." Hamdan, 126 S. Ct. at 2774 n.23 (citing Youngstown, 343
U.S. at 637 (Jackson, J., concurring)). In such cases, "Presidential
claim[s]" to power "must be scrutinized with caution, for what is at
stake is the equilibrium established by our constitutional system."
Youngstown, 343 U.S. at 638 (Jackson, J., concurring).
2.
In light of the Patriot Act, therefore, we must "scrutinize[ ] with
caution" the Executives contention that the Constitution grants the
President the power to capture and subject to indefinite military
detention certain civilians lawfully residing within the United States.
58
Id. The Government nowhere suggests that the Presidents inherent

constitutional power to detain does not extend to American citizens.
Yet it grounds its argument that the President has constitutional power
to detain al-Marri on his alien status. Even though at oral argument
before the en banc court the Government acknowledged that an alien
legally resident in the United States has the same due process rights
as an American citizen, the Government apparently maintains that
alien status permits the President to exercise special "peak" authority
over legally resident aliens like al-Marri. The Government can so
contend only by both ignoring the undisputed and relying on the inapposite.
It is undisputed that al-Marri had been legally admitted to the
United States, was attending an American university from which he
had earlier received an undergraduate degree, and was legally residing
here (with his family) for several months before the Government
arrested him at his home in Peoria. The Governments refusal to
acknowledge these undisputed facts dooms its contention that alMarris status as an alien somehow provides the President with special "peak" authority to deprive al-Marri of constitutional rights. For,
as we have noted within, and as the Government itself has conceded
on rehearing, the Supreme Court has repeatedly and expressly held
that aliens like al-Marri, i.e., those lawfully admitted into the United
States who have "developed substantial connections with this country," are entitled to the Constitutions 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. at 596; Wong Wing,
163 U.S. at 238. No case suggests that the President, by fiat, can eliminate the due process rights of such an alien.
Without even a mention of these undisputed facts and controlling
legal principles, the Government relies on two sorts of inapposite
cases as assertedly establishing special presidential authority over
aliens like al-Marri. The first of these, Eisentrager, 339 U.S. at 769
n.2, and Ludecke, 335 U.S. at 161-62, involves "enemy aliens." In
those cases, the Supreme Court specifically defined "enemy aliens,"
but the Court did not define them as aliens who commit crimes
against our country and so are enemies, as the Government seems to
suggest. Rather, the Supreme Court defined "enemy aliens" as "subject[s] of a foreign state at war with the United States." Eisentrager,
59
339 U.S. at 769 n.2. Al-Marri plainly is not the "subject of a foreign
state at war with the United States" and so is not an "enemy alien,"
but rather is a citizen of Qatar, a country with which the United States
has friendly relations. Thus Eisentrager and Ludecke provide no basis
for asserting authority over al-Marri. In fact, elsewhere in its brief, the
Government concedes, as it must, that Eisentrager and Ludecke do
not "have direct application" to al-Marri.
The other inapposite cases on which the Government relies involve
congressional authority over aliens stemming from Congresss power
over naturalization and immigration not some special "inherent"
constitutional authority enjoyed by 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). These cases do not speak to the
powers of the President acting alone let alone contrary to an Act
of Congress and certainly do not suggest that the President has the
power to subject to indefinite military detention an alien lawfully
residing in this country.
In sum, al-Marri is not a subject of a country with which the United
States is at war, he did not illegally enter the United States, and he
is not alleged to have committed any other immigration violation.
Rather, after lawfully entering the United States, al-Marri "developed
substantial connections with this country," Verdugo-Urquidez, 494
U.S. at 271, and so his status as an alien neither eliminates his due
process rights nor provides the President with extraordinary powers
to subject al-Marri to seizure and indefinite detention by the military.
The Presidents constitutional powers do not allow him to order the
military to seize and detain indefinitely al-Marri without criminal process any more than they permit the President to order the military to
seize and detain, without criminal process, other terrorists within the
United States, like the Unabomber or the perpetrators of the Oklahoma City bombing.
3.
In light of al-Marris due process rights under our Constitution and
Congresss express prohibition in the Patriot Act on the indefinite
detention of those civilians arrested as "terrorist aliens" within this
60
country, we can only conclude that, in the case at hand, the President
claims power that far exceeds that granted him by the Constitution.
We do not question the Presidents wartime authority over enemy
combatants, but absent suspension of the writ of habeas corpus, the
Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. See
Toth, 350 U.S. at 14 ("[A]ssertion of military authority over civilians
cannot rest on the Presidents power as commander-in-chief."). The
President cannot eliminate constitutional protections with the stroke
of a pen by proclaiming a civilian, even a criminal civilian, an enemy
combatant subject to indefinite military detention. Put simply, the
Constitution does not empower the President to order the military to
seize civilians residing within the United States and detain them
indefinitely without criminal process, and this is so even if he calls
them "enemy combatants."
A "well-established purpose of the Founders" was "to keep the military strictly within its proper sphere, subordinate to civil authority."
Reid, 354 U.S. at 30. In the Declaration of Independence, our forefathers lodged the complaint that the King of Great Britain had "affected to render the Military independent of and superior to the Civil
power" and objected that the King had "depriv[ed] us in many cases,
of the benefits of Trial by Jury." The Declaration of Independence
paras. 14, 20 (U.S. 1776). Thus, a resolute conviction that civilian
authority should govern the military animated the framing of the Constitution. As Alexander Hamilton, no foe of executive power,
observed, the Presidents Commander-in-Chief powers "amount to
nothing more than the supreme command and direction of the military
and naval forces." The Federalist No. 69, at 386 (Alexander Hamilton) (Clinton Rossiter ed., 1961). "That military powers of the Commander in Chief were not to supersede representative government of
internal affairs seems obvious from the Constitution and from elementary American history." Youngstown, 343 U.S. at 644 (Jackson,
J., concurring) (emphasis added). For this reason, in Youngstown, the
Supreme Court rejected the Presidents claim to "inherent power" to
use the military even to seize property within the United States,
despite the Governments argument that the refusal would "endanger
the well-being and safety of the Nation." Id. at 584 (majority opinion).
61
Of course, this does not mean that the President lacks power to protect our national interests and defend our people, only that in doing
so he must abide by the Constitution. We understand and do not in
any way minimize the grave threat international terrorism poses to our
country and our national security. But as Milligan teaches, "the government, within the Constitution, has all the powers granted to it,
which are necessary to preserve its existence." 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 plenary authority to deploy our military against terrorist enemies overseas. See Curtiss-Wright, 299 U.S.
at 319-20; see also Eisentrager, 339 U.S. at 789. Similarly, the Government remains free to defend our country against terrorist enemies
within, using all the considerable powers "the well-stocked statutory
arsenal" of domestic law affords. Hamdi, 542 U.S. at 547 (Souter, J.,
concurring in part, dissenting in part, and concurring in the judgment)
(citing numerous federal statutes criminalizing terrorist acts). Civilian
law enforcement officers may always use deadly force whenever reasonable. See Scott v. Harris, 127 S. Ct. 1769, 1776-78 (2007). Furthermore, in the wake of September 11th, Congress has specifically
authorized the President to deploy the armed forces at home to protect
the country in the event of actual "terrorist attack[s] or incident[s]"
within the United States meeting certain conditions. See 10 U.S.C.A.
333(a)(A) (West 2007) (amending the Insurrection Act to provide
the President with this authority, notwithstanding the Posse Comitatus
Act, 18 U.S.C. 1385).
But in this nation, military control cannot subsume the constitutional rights of civilians. Rather, the Supreme Court has repeatedly
catalogued our countrys "deeply rooted and ancient opposition . . .
to the extension of military control over civilians." Reid, 354 U.S. at
33; see also Laird v. Tatum, 408 U.S. 1, 15 (1972) (Burger, C.J.) (recognizing "a traditional and strong resistance of Americans to any military intrusion into civilian affairs" that "has deep roots in our history
and found early expression . . . in the constitutional provisions for
civilian control of the military"). The Court has specifically cautioned
against "break[ing] faith with this Nations tradition" "firmly
embodied in the Constitution" "of keeping military power subservient to civilian authority." Reid, 354 U.S. at 40. When the Court
62
wrote these words in 1957, it explained that "[t]he country ha[d]

remained true to that faith for almost one hundred seventy years." Id.
Another half century has passed, but the necessity of "remain[ing]
true to that faith" remains as important today as it was at our founding. See id.
The President has cautioned us that "[t]he war on terror we fight
today is a generational struggle that will continue long after you and
I have turned our duties over to others." Pres. George W. Bush, State
of the Union Address (Jan. 23, 2007). Unlike detention for the duration of a traditional armed conflict between nations, detention for the
length of a "war on terror" has no bounds. Justice OConnor observed
in Hamdi that "[i]f the practical circumstances of a given conflict are
entirely unlike those of the conflicts that informed the development
of the law of war," the understanding that combatants can be detained
"for the duration of the relevant conflict" "may unravel." 542 U.S. at
521. If the indefinite military detention of an actual combatant in this
new type of conflict might cause the thread of our understandings to
"unravel," the indefinite military detention of a civilian like al-Marri
would shred those understandings apart.
In an address to Congress at the outset of the Civil War, President
Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln
famously asked: "[A]re all the laws, but one, to go unexecuted, and
the government itself to go to pieces, lest that one be violated?" Abraham Lincoln, Message to Congress in Special Session (July 4, 1861),
in Abraham Lincoln: Speeches and Writings 1859-1865 at 246, 254
(Don E. Fehrenbacher ed., 1989). The authority the President seeks
here turns Lincolns formulation on its head. For the President does
not acknowledge that the extraordinary power he seeks would result
in the suspension of even one law, and he does not contend that this
power should be limited to dire emergencies that threaten the nation.
Rather, he maintains that the authority to order the military to seize
and detain certain civilians is an inherent power of the Presidency,
which he and his successors may exercise as they please.
To sanction such presidential authority to order the military to seize
and indefinitely detain civilians, even if the President calls them
"enemy combatants," would have disastrous consequences for the
63
Constitution and the country. For a court to uphold a claim to such

extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would
effectively undermine all of the freedoms guaranteed by the Constitution. It is that power were a court to recognize it that could lead
all our laws "to go unexecuted, and the government itself to go to
pieces." We refuse to recognize a claim to power that would so alter
the constitutional foundations of our Republic.
III.
Because we find that neither the AUMF nor the Presidents inherent authority permits the military to detain al-Marri indefinitely as an
enemy combatant, we would not reach the question of whether the
Government has afforded al-Marri sufficient process to challenge his
designation as an enemy combatant. We would simply reverse the
judgment of the district court and remand the case with instructions
to issue a writ of habeas corpus directing the Secretary of Defense to
release al-Marri from military custody within a reasonable period of
time to be set by the district court. Pursuant to this directive, the Government could transfer al-Marri to civilian authorities to face criminal
charges, initiate deportation proceedings against him, hold him as a
material witness in connection with grand jury proceedings, or detain
him for a limited time pursuant to the Patriot Act, but military detention of al-Marri would have to cease.
This disposition, however, does not command a majority of the en
banc court. Accordingly, to give practical effect to the conclusions of
the majority of the court who reject the Governments position, we
join in ordering remand on the terms closest to those we would
impose. See Hamdi, 542 U.S. at 553 (Souter, J., concurring in part,
dissenting in part, and concurring in the judgment). We believe that
it is unnecessary to litigate whether al-Marri is an enemy combatant,
but joining in remand for the evidentiary proceedings outlined by
Judge Traxler will at least place the burden on the Government to
make an initial showing that normal due process protections are
unduly burdensome and that the Rapp declaration is "the most reliable
available evidence," supporting the Governments allegations before
it may order al-Marris military detention. See post at 94-95. There-
64
fore, we concur in the per curiam opinion reversing and remanding

for evidentiary proceedings to determine whether al-Marri actually is
an enemy combatant subject to military detention.
Judges Michael, King, and Gregory have authorized me to indicate
that they join in this opinion.
TRAXLER, Circuit Judge, concurring in the judgment:
Ali Saleh Kahlah al-Marri ("al-Marri"), a citizen of Qatar and
alleged operative of the al Qaeda terrorist network, was designated an
enemy combatant by the President of the United States and is currently being detained at the Naval Consolidated Brig in Charleston,
South Carolina. According to evidence submitted by the government
in support of al-Marris military detention, al-Marri received training
and funding from al Qaeda prior to the September 11 attacks perpetrated by that organization and entered this country as a "sleeper
agent" charged with carrying out additional terrorist activities on its
behalf. Al-Marri now appeals the district courts decision dismissing
his habeas petition, filed under 28 U.S.C.A. 2241, challenging the
Presidents authority to designate him an enemy combatant and militarily detain him as such. In the alternative, al-Marri challenges the
process he has been afforded by the district court to contest the factual
basis for his designation.
I agree with my colleagues who hold that the Authorization for Use
of Military Force ("AUMF"), Pub. L. No. 107-40, 115 Stat. 224
(2001), enacted by Congress in the wake of the 9/11 attacks, grants
the President the power to detain enemy combatants in the war
against al Qaeda, including belligerents who enter our country for the
purpose of committing hostile and war-like acts such as those carried
out by the al Qaeda operatives on 9/11. And, I agree that the allegations made by the government against al-Marri, if true, would place
him within this category and permit the President to militarily detain
him.
However, I depart from my dissenting colleagues on the issue of
whether al-Marri has been afforded a fair opportunity to challenge the
factual basis for his designation as an enemy combatant. Because the
process afforded al-Marri by the district court to challenge the factual
65
basis for his designation as an enemy combatant did not meet the minimal requirements of due process guaranteed by the Fifth Amendment, I would reverse the district courts dismissal of al-Marris
habeas petition and remand for further evidentiary proceedings on the
issue of whether al-Marri is, in fact, an enemy combatant subject to
military detention.
I. Background
As is now tragically well-known, on September 11, 2001, operatives of the al Qaeda terrorist network hijacked commercial airliners
on the East Coast and launched an attack upon the United States, successfully striking the World Trade Center and the Pentagon, and
crashing a third airliner, believed to have been bound for an additional
target in Washington, D.C., in Pennsylvania. Approximately 3,000
civilians were killed as 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 necessary and appropriate force against those nations, organizations, or persons
Id. (emphasis added). The preamble to the AUMF references the Presidents "authority under the Constitution to take action to deter and
prevent acts of international terrorism against the United States,"
points to the continued "unusual and extraordinary threat to the
national security and foreign policy of the United States" posed by the
forces responsible for the 9/11 attacks, and declares that it is "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." Id. (emphasis added).
Having determined that the 9/11 attacks were inflicted by operatives of al Qaeda who were sent to our country to attack us from
66
within, and that al Qaeda was heavily supported and harbored by the
Taliban government of Afghanistan, the President responded militarily against both entities by ordering our armed forces to Afghanistan.
On September 10, 2001, the day before al Qaedas devastating
attack upon our homeland, al-Marri entered the United States from
abroad with his wife and children, ostensibly for the purpose of pursuing a degree at Bradley University in Peoria, Illinois. Two months
later, FBI agents arrested al-Marri as a material witness in the investigation of the 9/11 attacks. In the course of their investigation, the
authorities discovered that al-Marri was rarely attending his university
classes and was failing his courses. Additional investigation resulted
in al-Marri being charged with several federal criminal offenses.1 AlMarri pled not guilty and trial was set to begin in the district court of
Illinois on July 21, 2003.
On June 23, 2003, however, President George W. Bush declared
that al-Marri "is, and at the time he entered the United States in September 2001 was, an enemy combatant." J.A. 54. According to the
presidential declaration, "al-Marri is closely associated with al Qaeda,
an international terrorist organization with which the United States is
at war" and "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." J.A. 54. The President additionally declared that "alMarri possesses intelligence, including intelligence about personnel
and activities of al Qaeda that, if communicated to the [United
1
The offenses consisted of one count of possession of 15 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 statement to the FBI, in violation of 18 U.S.C.A.
1001(a)(2) (West 2000 & Supp. 2007); three counts of making a false
statement in a bank application, in violation of 18 U.S.C.A. 1014 (West
Supp. 2007); and one count of using a means of identification of another
person for the purpose of influencing 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 two
indictments in the Southern District of New York, but the indictments
were dismissed on venue grounds. Al-Marri was then returned to Peoria
and re-indicted on the same seven counts in the district court of Illinois.
67
States], would aid [United States] efforts to prevent attacks by al

Qaeda on the United States or its armed forces, other governmental
personnel, or citizens," and that he "represents a continuing, present,
and grave danger to the national security of the United States." J.A.
54. Accordingly, the President declared that the "detention [of alMarri] 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" and that "it is in the interest of the United
States that the Secretary of Defense detain [him] as an enemy combatant." J.A. 54.
In the wake of this declaration, the government successfully moved
to dismiss the criminal indictment pending in the district court of Illinois, asserting national security interests required that al-Marri be
transferred from civilian to military custody.2 Al-Marri was transferred to the custody of the Secretary of Defense and transported to
the Naval Consolidated Brig in Charleston, where he has remained in
military custody as an enemy combatant.
On July 8, 2003, approximately two weeks after al-Marri was
transferred from civilian to military custody, al-Marris legal counsel
filed a petition for a writ of habeas corpus in the district court of Illinois challenging the Presidents designation and al-Marris continued
detention by the military. The petition was eventually dismissed 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 the District
of South Carolina.
In his petition, al-Marri claimed that his military detention was
unlawful, that the government was required to charge him with a
crime or release him, and that the government abridged his due process rights. Al-Marri asserted that as a civilian lawfully residing in the
United States, he was unlawfully "detained by the military without
basis, without charge, without access to counsel, and without being
2
Although the district court denied al-Marris motion for a stay to prevent his transfer prior to filing a habeas petition, the government agreed
to inform counsel of al-Marris location and to provide the court and
counsel with advance notice of any plan to move al-Marri outside the
United States.
68
afforded any process by which he can challenge his detention or his

designation as an enemy combatant." J.A. 21.3 Al-Marri also
demanded that a hearing be scheduled at which the government
should be "compelled to present evidence establishing that [al-Marri]
is, in fact, an enemy combatant, and at which [al-Marri] is afforded
an opportunity to challenge such designation with the assistance of
counsel." J.A. 25.
The government thereafter filed its response to al-Marris petition,
supported by a hearsay declaration of Jeffrey N. Rapp, identified as
the Director of the Joint Intelligence Task Force for Combating Terrorism (the "Rapp Declaration"). In this affidavit, Rapp professed to
be "familiar with the interviews of [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 . . .
after he was declared an enemy combatant by the President." J.A.
213. The Rapp Declaration summarized the national intelligence and
other federal investigative information upon which the President
rested his determination that al-Marri was not simply a man bent on
committing criminal activities for personal reasons or gain, but an alQaeda operative or soldier dispatched to this country to perpetrate or
facilitate additional war-like attacks in the wake of the 9/11 attacks.
According to the Rapp Declaration, "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," and
"possesses information of high intelligence value, including information about personnel and activities of al Qaeda." J.A. 216. Prior to his
3
Al-Marris petition initially set forth two additional claims, asserting

that he was denied the right to counsel and unlawfully interrogated.
When his petition was filed, al-Marri claimed that he was being held
incommunicado at the Naval Brig, without access to his counsel, and that
he had been provided no opportunity to contest his designation as an
enemy combatant. He was subsequently granted access to counsel in
October 2004. The district court ruled that al-Marris claims for deprivation of his right to counsel and unlawful interrogation were not cognizable in the habeas action. Al-Marri is currently pursuing these claims in
a separate action, Al-Marri v. Rumsfeld, C.A. No. 2:05-cv-02259-HFFRSC (filed Aug. 8, 2005), which is still pending before the district court.
See Al-Marri v. Wright, 443 F. Supp. 2d 774, 777 n.2 (D.S.C. 2006).
69
arrival in this country, he was "trained at Bin Ladens Afghanistan

terrorist training camps" and, "[a]mong other things, . . . received
training in the use of poisons at an al-Qaeda camp." J.A. 217. He "met
personally with Usama Bin Laden . . . and volunteered for a martyr
mission or to do anything else that al Qaeda requested." J.A. 216. The
Rapp Declaration asserted that al-Marri was assisted in his al Qaeda
assignment to the United States by known al Qaeda members, including "[9/11] mastermind Khalid Shaykh Muhammed" and "al Qaeda
financier and [9/11] moneyman Mustafa Ahmed Al-Hawsawi." J.A.
216. He traveled to the United States with money provided for him
by al Qaeda for the purpose of carrying out his assigned mission.
In response, al-Marri asserted that, even if the allegations were
true, the President lacked authority to detain him as an enemy combatant. However, al-Marri also denied the factual allegations supporting
his classification and asserted that he was "entitled to a fair opportunity to rebut the factual assertions on which his classification as an
enemy combatant [was] based and to an evidentiary hearing conducted consistent with the fundamental requirements of due process,
including, most importantly, the right to confront and cross-examine
the witnesses against him." J.A. 69. According to al-Marri,
"[a]nything less would make his right to due process illusory." J.A.
69.
As discussed in more detail below, the district court rejected alMarris assertion that the President lacked the authority to detain him
as an enemy combatant, see Al-Marri v. Hanft, 378 F. Supp. 2d 673
(D.S.C. 2005), and, in a later decision, dismissed al-Marris habeas
petition based upon its determination that he had failed to rebut the
allegations upon which his designation rested, see Al-Marri v. Wright,
443 F. Supp. 2d 774 (D.S.C. 2006). On appeal, al-Marri challenges
the district courts determination that the President can detain him as
an enemy combatant and, in the alternative, asserts that he was not
afforded a meaningful opportunity to contest his status. I address each
issue in turn.
II. The Authority to Detain
I begin with the district courts denial of al-Marris motion for
summary judgment based upon its determination that, assuming the
70
allegation of the Rapp Declaration to be true, the President possessed

legal authority under the AUMF to detain al-Marri as an enemy combatant in the war against al Qaeda even though al-Marri had successfully crossed our borders and was residing within this country at the
time of his seizure. See Al-Marri, 378 F. Supp. 2d at 680. Al-Marri
asserts that the President lacks legal authority to designate and detain
him as an enemy combatant because he was taken into custody in the
United States and, as a result, enjoyed "civilian" status and its accompanying rights to full criminal process for his alleged wrongdoing.
The government counters that both the AUMF and the Presidents
inherent constitutional authority allowed for the detention.
A.
As pointed out by my colleagues, the Constitution generally affords
all persons detained by the government the right to be charged and
tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the
United States to military detention unless they fall within certain narrow exceptions. See United States v. Salerno, 481 U.S. 739, 755
(1987) ("In our society liberty is the norm, and detention prior to trial
or without trial is the carefully limited exception."). The detention of
enemy combatants during military hostilities, however, is such an
exception. If properly designated an enemy combatant pursuant to
legal authority of the President, such persons may be detained without
charge or criminal proceedings "for the duration of the relevant hostilities." Hamdi v. Rumsfeld, 542 U.S. 507, 519-521 (2004).
The Supreme Court first considered the breadth of the AUMFs
grant of such authority in Hamdi, a case which originated from this
circuit. Hamdi was captured by our allies in Afghanistan and turned
over to our military personnel there. When it was discovered that he
was a United States citizen by birth, Hamdi was transported to the
United States for continued detention here. A plurality of the Court
ruled that "individuals who fought against the United States in
Afghanistan as part of the Taliban, an organization known to have
supported the al Qaeda terrorist network responsible for [the 9/11]
attacks, are individuals Congress sought to target in passing the
AUMF." Id. at 518. Although the AUMF did not specifically authorize such military detention, the plurality "conclude[d] that detention
71
of individuals falling into the limited category we are considering, for

the duration of the particular conflict in which they were captured, is
so fundamental and accepted an incident to war as to be an exercise
of the necessary and appropriate force Congress has authorized the
President to use." Id.; see also id. at 519 ("Because detention to prevent a combatants return to the battlefield is a fundamental incident
of waging war, in permitting the use of necessary and appropriate
force, Congress has clearly and unmistakably authorized detention in
the narrow circumstances considered here.").
Because Hamdi was "part of or supporting forces hostile to the
United States or coalition partners in Afghanistan and who engaged
in an armed conflict against the United States there," id. at 516 (internal quotation marks omitted), the plurality concluded that, even
though he was a United States citizen detained within this country, he
clearly fell within the legal category of those "enemy combatants"
who may be detained. However, in the course of rejecting Hamdis
claim that his citizenship prohibited his detention as an enemy combatant, the plurality also recognized the Courts precedent in Ex parte
Quirin, 317 U.S. 1 (1942), which "held that [c]itizens who associate
themselves with the military arm of the enemy government, and with
its aid, guidance and direction enter this country bent on hostile acts
are enemy belligerents within the meaning 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 the AUMF in Padilla v.
Hanft, 423 F.3d 386 (4th Cir. 2005), albeit in a somewhat different
context. There we held that the AUMF was broad enough to authorize
the military detention of Jose Padilla, "a citizen of this country who
is closely associated with al Qaeda, an entity with which the United
States is at war; who took up arms on behalf of that enemy and
against our country in a foreign combat zone of that war; and who
thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens
and targets." Id. at 389. In so holding, we also relied upon the
Supreme Courts decision in Quirin, which dealt with "the military
trial of Haupt, a United States citizen who entered th[is] country with
orders from the Nazis to blow up domestic war facilities but was captured before he could execute those orders." Id. at 392. Noting that,
"[l]ike Haupt, Padilla associated with the military arm of the enemy,
72
and with its aid, guidance, and direction entered this country bent on
committing hostile acts on American soil," we held that Padilla "falls
within Quirins definition of enemy belligerent, as well as within the
definition of the equivalent term [enemy combatant] accepted by the
plurality in Hamdi." Id. We concluded:
The Congress of the United States, in the Authorization for
Use of Military Force Joint Resolution, provided the President all powers necessary and appropriate to protect American citizens from terrorist acts by those who attacked the
United States on September 11, 2001. As would be
expected, and as the Supreme Court has held, those powers
include the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the
Taliban regime, who took up arms against this Nation in its
war against these enemies, and who entered the United
States for the avowed purpose of further prosecuting that
war by attacking American citizens and targets on our own
soil a power without which, Congress understood, the
President could well be unable to protect American citizens
from the very kind of savage attack that occurred four years
ago almost to the day.
Id. at 397. Accordingly, we reversed the district courts determination
that the detention of Padilla by the President was without legal support, necessitating additional proceedings below.4
4
Shortly after our ruling in Padilla, the government filed a motion for
authorization to transfer Padilla from military custody to civilian custody
and suggested that we withdraw our prior opinion. We denied the motion
and suggestion, noting "that the transfer of Padilla and the withdrawal of
our opinion at the governments request while the Supreme Court is
reviewing this courts decision . . . would compound what is, in the
absence of explanation, at least an appearance that the government may
be attempting to avoid consideration of our decision by the Supreme
Court, and also because we believe that this case presents an issue of
such especial national importance as to warrant final consideration 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 terminate the litigation "should be made not by this court but,
rather, by the Supreme Court." Id. at 584. The Supreme Court subsequently granted the governments motion to transfer. See Hanft v.
Padilla, 546 U.S. 1084 (2006).
73
B.
Like my colleagues, I agree that neither Hamdi nor Padilla compels the conclusion that the AUMF authorized the President to detain
al-Marri as an enemy combatant, although they do provide guidance.
I disagree, however, that Ex Parte Milligan, 71 U.S. (4 Wall.) 2
(1866), compels the opposite conclusion. Having carefully considered
these cases, as well as the Supreme Courts decision in Quirin, I am
of the opinion that the AUMF also grants the President the authority
to detain enemy combatants who associate themselves "with al
Qaeda, an entity with which the United States is at war," and "travel[ ]
to the United States for the avowed purpose of further prosecuting
that war on American soil, against American citizens and targets,"
even though the government cannot establish that the combatant also
"took up arms on behalf of that enemy and against our country in a
foreign combat zone of that war." Padilla, 423 F.3d at 389 (emphasis
added).
1.
As accurately pointed out by my colleagues, the alleged enemy
combatants in Hamdi and Padilla were affiliated with the military
arm of an enemy government, specifically the Taliban government of
Afghanistan. By virtue of the alleged combatants affiliation with the
Taliban government, neither court was required to decide whether
their affiliation with al Qaeda and, in the case of Padilla, the mission
to carry out additional terrorist acts within this country, would also
have supported their detention as enemy combatants.
In my opinion, however, there is no doubt that individuals who are
dispatched here by al Qaeda, the organization known to have carried
out the 9/11 attacks upon our country, as sleeper agents and terrorist
operatives charged with the task of committing additional attacks
upon our homeland "are [also] individuals Congress sought to target
in passing the AUMF." Hamdi, 542 U.S. at 518. Citing the right of
the United States "to protect United States citizens both at home and
abroad," the AUMF authorized the Presidents use of "all necessary
and appropriate force against" the nations and organizations that
"planned, authorized, committed, or aided" the 9/11 attacks, "or harbored such organizations or persons, in order to prevent any future
74
acts of international terrorism against the United States." 115 Stat.

224. Clearly, Congress was not merely authorizing military retaliation
against a reigning foreign government known to have supported the
enemy force that attacked us in our homeland, but was also authorizing military action against al Qaeda operatives who, like the 9/11
hijackers, were sent by the al Qaeda organization to the United States
to conduct additional terror operations here.
As persuasively pointed out by the government, it was the 9/11
attacks which triggered the passage of the AUMF. The al Qaeda operatives who successfully carried out those attacks entered this country
under false pretenses for the purpose of carrying out al Qaeda orders
and, while finalizing the preparations for these attacks, maintained a
facade of peaceful residence until the very moment they boarded the
commercial airliners that they used as weapons. The hijackers never
engaged in combat operations against our forces on a foreign battlefield. Yet al-Marri would have us rule that when Congress authorized
the President to deal militarily with those responsible for the 9/11
attacks upon our country, it did not intend to authorize the President
to deal militarily with al Qaeda operatives identically situated to the
9/11 hijackers. There is nothing in the language of the AUMF that
suggests that Congress intended to limit the military response or the
presidential authorization to acts occurring in foreign territories, and
it strains reason to believe that Congress, in enacting the AUMF in
the wake of those attacks, did not intend for it to encompass al Qaeda
operatives standing in the exact position as the attackers who brought
about its enactment. Furthermore, Congress has not revised or
revoked the AUMF since its enactment or since the Supreme Court
decided Hamdi.
I am also unpersuaded by the claim that because al Qaeda itself is
an international terrorist organization instead of a "nation state" or
"enemy government," the AUMF cannot apply, consistent with the
laws of war and our constitutional guarantees, to such persons. The
premise of that claim seems to be that because al Qaeda is not technically in control of an enemy nation or its government, it cannot be
considered as anything other than a criminal organization whose
members are entitled to all the protections and procedures granted by
our constitution. I disagree.
75
In my view, al Qaeda is much more and much worse than a criminal organization. And while it may be an unconventional enemy force
in a historical context, it is an enemy force nonetheless. The fact that
it allied itself with an enemy government of a foreign nation only
underscores this point, rendering attempts to distinguish its soldiers or
operatives as something meaningfully different from military soldiers
in service to the Taliban government (or al Qaeda operatives such as
Hamdi and Padilla, who fought beside them) equally strained. The
President attacked the Taliban in Afghanistan as retaliation for al
Qaedas strike upon our nation because al Qaeda was centralized
there and allied with the Taliban, and it also strains credulity to assert
that while we are legitimately at war with the Taliban government, we
cannot be at war with al Qaeda.
In sum, the war that al Qaeda wages here and abroad against American interests may be viewed as unconventional, but it is a war nonetheless and one initially declared by our enemy. See Hamdi v.
Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002) (noting that "[t]he
unconventional aspects of the present struggle do not make its stakes
any less grave"); Padilla, 423 F.3d at 389 (noting that al Qaeda is "an
entity with which the United States is at war"). The members of this
enemy force come from different countries and they are positioned
globally. They fight us with conventional weapons in Afghanistan and
Iraq, but they have also infiltrated our borders and those of our allies,
bent on committing, at a minimum, sabotage and other war-like acts
targeting both military and civilian installations and citizens. While
they do not hail from a single nation state, they are not really so dissimilar from the multi-national forces united against the United States
and its allies in the conventional wars that we are more comfortable
discussing. And when they cross our borders with the intent to attack
our country from within on behalf of those forces, they are not appreciably different from the soldiers in Quirin, who infiltrated our borders to commit acts of sabotage against our military installations here
although as history and intelligence inform us, al Qaeda soldiers
target not only our military installations, but also the citizens of this
country. Nor does it matter that "they have not actually committed or
attempted to commit any act of depredation or entered the theatre or
zone of active military operations." Quirin, 317 U.S. at 38. When they
enter this country "with hostile purpose," they are enemy belligerents
subject to detention. Id.
76
In my view, limiting the Presidents authority to militarily detain

soldiers or saboteurs as enemy combatants to those who are part of
a formal military arm of a foreign nation or enemy government is not
compelled by the laws of war, and the AUMF plainly authorizes the
President to use all necessary and appropriate force against al Qaeda.
I believe this necessarily includes the detention of al Qaeda operatives
who associate with the enemy, be that the al Qaeda organization or
the Taliban government, "and with its aid, guidance and direction
enter this country bent on hostile acts." Id. at 37-38. Accordingly, I
find it unnecessary to reach the question of whether the President possesses inherent authority to detain al-Marri.
2.
If the allegations of the Rapp Declaration are true, I am also of the
view that al-Marri would fall within the category of persons who may
be lawfully detained pursuant to the authority granted by the AUMF.
According to Rapp, al-Marri was not simply a civilian who lawfully entered the United States and was residing peacefully here while
pursuing a higher educational goal. Nor, for that matter, was he a
civilian who became sympathetic to al-Qaedas mission and sought to
support it in indirect ways. And he was certainly not a common criminal bent on committing criminal acts for personal reasons or gain. On
the contrary, the allegations are that al-Marri directly allied himself
with al Qaeda abroad, volunteered for assignments (including a martyr mission), received training and funding from al Qaeda abroad, was
dispatched by al Qaeda to the United States as an al Qaeda operative
with orders to serve as a sleeper agent, and was tasked with facilitating and ultimately committing terrorist attacks against the United
States within this country. Unlike the al Qaeda operatives who preceded him, al-Marri was unsuccessful in his mission. But with this
exception owing to the efforts of our federal authorities here he
would not be appreciably different from either the German soldier
dispatched here to attack military installations in Quirin or the al
Qaeda operatives dispatched here to attack this country on 9/11. As
noted by the magistrate judge, "[a]ssuming . . . that all of the facts
asserted by [the government] are true, [al-Marri] attended an al Qaeda
terror training camp and later, on September 10, 2001, entered this
77
country to continue the battle that the September 11th hijackers began
on American soil." J.A. 123.
For these reasons, I agree that, assuming the allegations of the
Rapp Declaration to be true, al-Marri would fall within the definition
of an enemy combatant and that his military detention would be
authorized pursuant to the AUMF.
III. Due Process
While I agree with my colleagues who would hold that the President has the legal authority under the AUMF to detain al-Marri as an
enemy combatant for the duration of the hostilities, we part company
on the issue of whether the process afforded al-Marri to challenge his
detention was sufficient to meet the minimum requirements of due
process of law. In my opinion, due process demands more procedural
safeguards than those provided to al-Marri in the habeas proceedings
below.
A.
Consideration of "the question of what process is constitutionally
due to a [person] who disputes his enemy-combatant status" begins
with consideration of the Supreme Courts decision in Hamdi, which
addressed not only the legal authority of the President to detain
enemy combatants but also the process due to those so designated.
Hamdi, 542 U.S. at 524.
Hamdi was captured on the battlefield in Afghanistan by our allies,
transferred into our military custody, and then transported to the
United States, where a habeas petition was filed on his behalf. In support of Hamdis designation as an enemy combatant, the government
filed the hearsay declaration of Michael Mobbs, Special Advisor to
the Under Secretary of Defense for Policy, summarizing the factual
basis for Hamdis detention. The government argued that "[r]espect
for separation of powers and the limited institutional capabilities of
courts in matters of military decision-making in connection with an
ongoing conflict ought to eliminate entirely any individual process,
restricting the courts to investigating only whether legal authorization
78
exists for the broader detention scheme," or "[a]t most," review

"under a very deferential some evidence standard," which the government asserted the Mobbs Declaration met. Id. at 527. The district
court disagreed, imposing procedural safeguards and discovery burdens "approach[ing] the process that accompanies a criminal trial." Id.
at 528. The plurality of the Court, however, disagreed with both positions, noting that due process and normal habeas procedures demand
more than the government sought to give, but also recognized that the
exigencies and burdens of military warfare may necessitate a modification of the procedures and evidentiary showings normally
demanded by our habeas jurisprudence.
As noted by the Hamdi plurality at the outset, " 2241 and its companion provisions provide at least a skeletal outline of the procedures
to be afforded a petitioner in federal habeas review." Id. at 525. Once
the petition is filed by or on behalf of the detainee setting forth "the
facts concerning the applicants . . . detention," 28 U.S.C.A. 2242,
the habeas court "direct[s] the respondent to show cause why the writ
should not be granted," 28 U.S.C.A. 2243, which places the burden
upon "[t]he person to whom the writ or order is directed [to] make a
return certifying the true cause of the detention," id. Section "2243
provides that the person detained may, under oath, deny any of the
facts set forth in the return or allege any other material facts, and
2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories." Hamdi, 542 U.S. at 525. However, while "Congress envisioned that habeas petitioners would have
some opportunity to present and rebut facts[,] . . . courts in cases like
this retain some ability to vary the ways in which they do so as mandated by due process." Id. at 526.
In determining what process would be appropriate in light of the
facts at hand, the Hamdi plurality recognized the fundamental "tension that often exists between the autonomy that the [g]overnment
asserts is necessary in order to pursue effectively a particular goal and
the process that a citizen contends he is due before he is deprived of
a constitutional right." Id. at 528. The individuals interest, of course,
is "the most elemental of liberty interests the interest in being free
from physical detention." Id. at 529. The governments interests, however, are equally compelling the interest "in detaining those who
actually pose an immediate threat to the national security of the
79
United States during ongoing international conflict," id. at 530, and

the interest in "ensuring that those who have in fact fought with the
enemy during a war do not return to battle against the United States,"
id. at 531. Arriving at the procedures necessary to ensure that a person, even an enemy combatant, is not deprived of his liberty without
due process of law, the plurality noted, requires a balancing of these
"serious competing interests." Id. at 529. To balance those competing
interests, the plurality turned to the test articulated by the Court in
Mathews v. Eldridge, 424 U.S. 319 (1976), which
dictates that the process due in any given instance is determined by weighing "the private interest that will be affected
by the official action" against the [g]overnments asserted
interest, "including the function involved" and the burdens
the [g]overnment would face in providing greater process.
The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an
erroneous deprivation" of the private interest if the process
were reduced and the "probable value, if any, of additional
or substitute procedural safeguards."
Hamdi, 542 U.S. at 529 (internal citations omitted) (emphasis added)
(quoting Mathews, 424 U.S. at 335).
Applying the Mathews test to the situation at hand, the plurality
ultimately rejected both the "some evidence" standard proposed by
the government and the criminal-like process suggested by the district
court, ruling that:
neither the process proposed by the [g]overnment nor the
process apparently envisioned by the District Court below
strikes the proper constitutional balance when a United
States citizen is detained in the United States as an enemy
combatant. That is, "the risk of an erroneous deprivation" of
a detainees liberty interest is unacceptably high under the
[g]overnments proposed rule, while some of the "additional
or substitute procedural safeguards" suggested by the District Court are unwarranted in light of their limited "probative value" and the burdens they may impose on the military
in such cases.
80
Hamdi, 542 U.S. at 532-33 (quoting Mathews, 424 U.S. at 335). However, while the plurality rejected the notion that a criminal-like process was mandated, it concluded that, at a minimum, a "citizendetainee 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 [g]overnments factual assertions
before a neutral decisionmaker." Hamdi, 542 U.S. at 533. "[T]he full
protections that accompany challenges to detentions in other settings
may prove unworkable and inappropriate in the enemy-combatant setting," the plurality recognized, but "the threats to military operations
posed by a basic system of independent review are not so weighty as
to trump a citizens core rights to challenge meaningfully the
[g]overnments case and to be heard by an impartial adjudicator." Id.
at 535 (emphasis added).5
Because Hamdi was a battlefield detainee captured in a foreign
nation, the core of the governments argument was that the need for
lessened process was "heightened by the practical difficulties that
would accompany a system of trial-like process." Id. at 531. Specifically, the government argued that "military officers who are engaged
in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into
military operations would both intrude on the sensitive secrets of
national defense and result in a futile search for evidence buried under
the rubble of war." Id. at 531-32.
As dictated by Mathews, the plurality took account of these military burdens in weighing the interests at stake, and recognized that,
when balancing the competing interests, these burdens might indeed
demand a lessening of the normal process due:
5
In a partially concurring opinion, Justice Souter and Justice Ginsberg

joined with the plurality in ordering remand to "allow Hamdi to offer
evidence that he is not an enemy combatant." Hamdi, 542 U.S. at 553
(Souter, concurring in part). Although they declined to adopt the pluralitys precise resolution of the due process issue, the concurring justices
indicated that they would not "disagree with the pluralitys determinations (given the pluralitys view of the [AUMF]) that someone in
Hamdis position is entitled at a minimum to notice of the
[g]overnments claimed factual basis for holding him, and to a fair
chance to rebut it before a neutral decisionmaker." Id.
81
[T]he exigencies of the circumstances may demand that,

aside from these core elements [of notice and an opportunity
to be heard], enemy-combatant proceedings may be tailored
to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for
example, may need to be accepted as the most reliable
available evidence from the [g]overnment in such a proceeding. Likewise, the Constitution would not be offended
by a presumption in favor of the [g]overnments evidence,
so long as that presumption remained a rebuttable one and
fair opportunity for rebuttal were provided. Thus, once the
[g]overnment puts forth credible evidence that the habeas
petitioner meets the enemy-combatant criteria, the onus
could shift to the petitioner to rebut that evidence with more
persuasive evidence that he falls outside the criteria. A
burden-shifting scheme of this sort would meet the goal of
ensuring that the errant tourist, embedded journalist, or local
aid worker has a chance to prove military error while giving
due regard to the Executive once it has put forth meaningful
support for its conclusion that the detainee is in fact an
enemy combatant. In the words of Mathews, process of this
sort would sufficiently address the "risk of an erroneous
deprivation" of a detainees liberty interest while eliminating certain procedures that have questionable additional
value in light of the burden on the [g]overnment.
Hamdi, 542 U.S. at 533-34 (emphasis added).6
In sum, Hamdis relaxed evidentiary standard of accepting hearsay
evidence and presumption in favor of the government arose from the
pluralitys recognition that the process warranted in enemy-combatant
proceedings may be lessened if the practical obstacles the Executive
6
In August 2004, following the Supreme Courts June decision in

Hamdi, we remanded the case to the Eastern District of Virginia for further proceedings consistent with the Supreme Courts decision. By October 2004, the parties had settled the matter. Hamdi was transported to
Saudi Arabia, released from United States custody, and his petition dismissed with prejudice as settled, with no further consideration of the
issue of what process was due Hamdi on remand.
82
would confront in providing the procedural protections normally due

warrant such a modification.7
B.
With these concepts in mind, I turn to the habeas proceeding conducted by the district court in al-Marris case, and the question of
whether the process accorded him after his motion for summary judgment was denied was constitutionally sufficient.
Although the district court rejected al-Marris claim that as a matter
of law he could not be detained as an enemy combatant, the district
court properly recognized that al-Marri (like Hamdi) retained the constitutional right to challenge the allegations supporting his detention
at a hearing satisfying the requirements of due process. Thus, the district court referred the case to a magistrate judge for a determination
of what process al-Marri was entitled to in his efforts to challenge his
designation.
7
The Supreme Courts recent decision in Boumediene v. Bush, 553

U.S. ___, No. 06-1195 (June 12, 2008), I believe, confirms this approach
to the question of whether and how the normal process due may be lessened in enemy-combatant proceedings. There, the Court reiterated the
"uncontroversial" principles that "the privilege of habeas corpus entitles
the prisoner to a meaningful opportunity to demonstrate that he is being
held pursuant to the erroneous application or interpretation of relevant
law" and that "the habeas court must have the power to order the conditional release of an individual unlawfully detained." Id. at ___, slip op.
at 50. But, the Court went on to recognize that these are only "the easily
identified attributes of any constitutionally adequate habeas corpus proceeding. . . . [D]epending on the circumstances, more may be required."
Id. As noted by the Court, "common-law habeas corpus was, above all,
an adaptable remedy. Its precise application and scope changed depending 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 the legality of executive detention, the writ
requires most fundamentally an Article III court able to hear the prisoners claims and, when necessary, order release. Beyond that, the process
a given prisoner is entitled to receive depends on the circumstances and
the rights of the prisoner." (citation omitted) (emphasis added)).
83
During a status conference held before the magistrate judge, alMarri sought full discovery from the government, arguing that such
discovery was appropriate because many of the factors weighing
against expansive discovery that were appropriate in Hamdi would
not apply to him because Hamdi had been seized by military officers
in a combat setting.8 Unlike in Hamdi, al-Marri argued, the discovery
he sought would be primarily, if not entirely, from civilian agencies
and therefore would not interfere with the war powers or operations
of the government. Al-Marri thus argued that the discovery he sought
would be more akin to information obtained in a standard criminal
investigation.
The magistrate judge, however, denied al-Marris attempts to
obtain evidence under 2246, rejected al-Marris attempts to distinguish Hamdi, and ruled that Hamdis relaxed evidentiary standard and
presumption in favor of the government were equally and automatically appropriate for al-Marris enemy-combatant proceeding. Thus,
the magistrate judge concluded that the Rapp Declaration was sufficient by itself to provide al-Marri with notice of the factual basis for
his designation as an enemy combatant and to meet the governments
initial burden to set forth credible evidence that he met the enemycombatant criteria. The magistrate judge accorded al-Marri sixty days
to file factual evidence to rebut the Rapp Declaration by "more persuasive evidence."9 If al-Marri was "unable to produce more persua8
Specifically, al-Marri sought all statements made by al-Marri; all documents relied upon by Rapp or describing the sources of information referenced in the Rapp Declaration; all documents upon which the
government intended to rely; all documents upon which the CIA, Department of Justice, Department of Defense, and the President relied in determining whether al-Marri was an enemy combatant; all documents
describing the standard for the designation; and any exculpatory evidence. The request, therefore, included all documents pertaining to interrogations and interviews conducted by United States officials or others
acting on their behalf. In addition, al-Marri sought to depose the sources
referenced in or relied upon by Rapp in his declaration, including the
high-level officials in the Executive Branch.
9
The Hamdi framework requires the individual to meet the governments evidence with proof that is "more persuasive," and this is what the
magistrate judge explicitly required of al-Marri. Thus, there is no basis
for the argument that al-Marri needed only to come forward with "some
evidence" to contradict the Rapp Declaration.
84
sive evidence than that produced by the government," i.e., the Rapp
Declaration, "the inquiry [would] end there." J.A. 183. But if al-Marri
proved by more persuasive evidence that he was not an enemy combatant, he would not necessarily receive relief. If the government so
desired, the magistrate judge would give the government another
chance and proceed to a "full-blown adversary hearing" with the government having the burden to show "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." J.A. 183.
Al-Marri thereafter filed a response generally denying the governments allegations. However, al-Marri asserted that the magistrate
judge had erred in relieving the government of its constitutional and
legal burden of coming forward with sufficient admissible evidence
establishing that al-Marri was, in fact, an enemy combatant. Al-Marri
thus "decline[d] at th[at] time the Courts invitation to assume the
burden of proving his own innocence," which he deemed to be an
"unconstitutional, unlawful and un-American" burden. J.A. 243 (internal quotation marks omitted).10 The magistrate judge then issued a
report and recommendation that the habeas petition be dismissed
based upon al-Marris failure to rebut the Rapp Declaration. Because
al-Marri "present[ed] nothing but a general denial to the Executives
assertion of facts," J.A. 243, the magistrate judge concluded, al-Marri
had "refused to participate in a meaningful way," J.A. 244, thus "squander[ing] his opportunity to be heard." J.A. 248.
Over al-Marris objections, the district court adopted the report and
recommendation and dismissed the petition. Although recognizing the
lack of any "binding standard for reviewing the factual basis supporting the detention of an alleged enemy combatant" and the "little guidance" provided by the Supreme Court in Hamdi, the district court
10
Al-Marri also complained that large portions of the Rapp Declaration

deemed classified were not shared with him or his counsel, severely
hampering his ability to refute the allegations against him. After the district court advised the parties that it would not consider information not
presented to al-Marri, the government filed an updated, declassified version of the Rapp Declaration.
85
concluded that the framework discussed by the Hamdi plurality

should be applied to al-Marris situation. Al-Marri, 443 F. Supp. 2d
at 778. The district court found unconvincing al-Marris contention
that "Hamdi does not apply here because the constitutional balance
it struck is limited to cases where the alleged enemy combatant is captured on a foreign battlefield." Id. In the district courts view, Hamdi
was "not tethered to the facts surrounding [Hamdis] apprehension
and detention," and "the Supreme Court intended the due process
structure it announced in Hamdi to apply to any challenge to detention mounted by an alleged enemy combatant." Id. at 779. "As Hamdi
has been interpreted as supporting the authority of the President to
designate Padilla and al-Marri as enemy combatants and to order their
detention," the district court noted, "it makes little sense to cast aside
the framework it announced for analyzing the factual evidence supporting that detention. The Court concludes, then, that the due process
requirements outlined in Hamdi apply here." Id. at 780 (internal citations omitted). The district court therefore held that the hearsay declaration of Rapp was sufficient to satisfy the governments initial
burden of providing al-Marri notice of the factual allegations supporting his designation and that al-Marri had no right to crossexamination or discovery in making his initial response.
Turning to the adequacy of al-Marris response itself, the district
court agreed that al-Marri had abandoned his opportunity to respond,
"render[ing] the [g]overnments assertions uncontested" and placing
al-Marri "in an untenable position." Id. at 785. Al-Marris "failure to
offer any evidence on his behalf" necessarily resulted in his failure "to
present more persuasive evidence to rebut" the Rapp Declaration.
Id. "[U]nder Hamdis outline of the procedures applicable in enemy
combatant proceedings," the district court concluded that it "need go
no further" and dismissed the petition. Id. According to the district
court, al-Marri "received notice of the factual basis supporting his
detention" and was "afforded a meaningful opportunity to rebut that
evidence." Id. I respectfully disagree.
C.
The dispute in this appeal is relatively straight-forward, although
its resolution is not. Al-Marri contends that he stands in a different
posture from Hamdi and that due process demands more rigorous pro-
86
cedural safeguards than those provided by the district court here and
by the plurality in Hamdi. The government counters that the Hamdi
pluralitys framework provided al-Marri all the process he was due,
asserting (1) that the Hamdi framework for providing process to a citizen enemy combatant captured on a foreign battlefield is, a fortiori,
constitutionally sufficient for an alien enemy combatant seized in the
United States; and (2) that al-Marri failed to take advantage of the
process he was provided, making his claim for additional process
unpersuasive.
Having carefully considered the pluralitys guidance in Hamdi and
the precedents upon which it relies, I am of the opinion that the district court erred in categorically applying the framework discussed by
the Hamdi plurality to al-Marris situation and accepting the Rapp
Declaration as sufficient to shift the burden of persuasion to al-Marri
without considering the specific circumstances before it. As was the
case in Hamdi, "the full protections that accompany challenges to
detentions in other settings [might] prove unworkable and inappropriate in [al-Marris] enemy-combatant [proceeding]." Hamdi, 542 U.S.
at 535. But that remains to be seen because, in my opinion, the district
court erred in the initial step of accepting the hearsay affidavit of
Rapp "as the most reliable available evidence from the
[g]overnment," id. at 534, without any inquiry into whether the provision of nonhearsay evidence would unduly burden the government,
and erred in failing to then weigh the competing interests of the litigants in light of the factual allegations and burdens placed before it
for consideration.11
11
I find no guidance from Padilla on this particular question. Like

Hamdi, Padilla "associated with forces hostile to the United States in
Afghanistan and took up arms against the United States forces in that
country in our war against al Qaeda." Padilla, 423 F.3d at 388. And like
al-Marri, Padilla was then "recruited, trained, funded, and equipped by
al Qaeda leaders to continue prosecution of the war in the United States"
through additional terrorist activities here, but was apprehended in this
country before he could complete his mission. Id. Although we held in
Padilla that the place of capture did not affect the Presidents power to
detain Padilla, neither this court nor the Supreme Court has held that the
place of capture does not affect the minimum constitutional process due.
87
1.
I begin with a general observation of the breadth of the ruling
below. The district court concluded that the Hamdi decision was not
limited to the facts surrounding Hamdis apprehension and that the
Supreme Court intended its framework to apply to every habeas petition filed by an alleged enemy combatant. On this broad point, I have
no particular quarrel. However, from this premise, the district court
also ruled that the Rapp Declaration, like the Mobbs Declaration in
Hamdi, was sufficient to satisfy the governments initial step in the
burden-shifting scheme, without requiring any showing by the government that the circumstances demanded that the proceedings should
be "tailored to alleviate their uncommon potential to burden the Executive" or that the hearsay affidavit of Rapp was "the most reliable
available evidence from the [g]overnment" because the presentation
of more reliable evidence would unduly burden the government or
otherwise interfere with the military or other national security efforts
of the Executive. Id. at 534.
In my opinion, the Hamdi plurality neither said nor implied that
normal procedures and evidentiary demands would be lessened in
every enemy-combatant habeas case, regardless of the circumstances.
And I cannot endorse such a view, which would allow the government to seize and militarily detain any person (including American
citizens within this country) and support such military detention
solely with a hearsay declaration of a government official who has no
first-hand information about the detainee regardless of whether
more reliable evidence is readily available or whether the presentation
of such evidence would impose any burden upon the government or
interfere at all with its war or national security efforts.12
Although I do not rule out the possibility that hearsay evidence
12
Once such evidence (which might also enjoy a favorable presumption) is presented, the burden will shift to the detainee to rebut the showing with evidence that is "more persuasive" than that of the government.
See Hamdi, 542 U.S. at 534. A detainees general denial of the hearsay
allegations will be insufficient. Rather, he will be required to refute the
fact-specific allegations made against him by presenting "more persuasive evidence that he falls outside the criteria." Id.
88
might ultimately prove to be the most reliable available evidence from

the government in this case, Hamdi does not support such a categorical relaxation of the protections due persons who are detained within
our borders. As noted earlier, the Hamdi plurality balanced the competing interest of the detainee in being free from governmental detention against the interest of the government in detaining those who
pose a threat to national security and concluded that "the full protections that accompany challenges to detentions in other settings may
prove unworkable and inappropriate in the enemy-combatant setting."
Id. at 535 (emphasis added). The Hamdi pluralitys acceptance of
hearsay evidence from the government in such settings, however,
clearly arose from the context of a battlefield detainee, the "exigencies of [such] circumstances," and the "uncommon potential to burden
the Executive at a time of ongoing military conflict." Id. at 533. The
relaxed evidentiary standard was accepted in the balance as appropriate in light of the facts of that case a person initially detained
abroad by our allies on a battlefield in Afghanistan. The plurality
rejected an outright disapproval of such hearsay declarations, and
described lesser procedures it believed might be sufficient to satisfy
the due process rights of such detainees, noting that the normal evidentiary requirements might need to be relaxed to account for the
governmental interest in military matters. See id. at 533-34 (explaining that hearsay "may need to be accepted as the most reliable available evidence from the [g]overnment" and "a presumption in favor of
the [g]overnments evidence" would not "offend[ ]" the Constitution
in battlefield detainee proceedings). But while the plurality refused to
categorically prohibit hearsay declarations, neither did it categorically
approve the use of such hearsay declarations in all enemy-combatant
proceedings.13 Hearsay declarations may be accepted upon a weighing
13
Thus, I do not believe Hamdi recognized that the governments burden in enemy-combatant proceedings could always be satisfied by a
knowledgeable affiant who summarizes the evidence on which the detention was based. That is not what Hamdi said at all. Instead, the plurality
merely noted that, in the context of the case before it, the Government
had made it clear "that documentation regarding battlefield detainees
already is kept in the ordinary court of military affairs" and that "[a]ny
factfinding imposition created by requiring a knowledgeable affiant to
summarize these records to an independent tribunal is a minimal one."
Hamdi, 542 U.S. at 534 (emphasis added). For this reason, the Hamdi
plurality was unpersuaded by the governments claim that "this basic
89
of the burdens in time of warfare of "providing greater process"

against the detainees liberty interests. Id. at 529. But to decide
whether a hearsay declaration is acceptable, the court must first take
into account "the risk of erroneous deprivation" of the detainees liberty interest, "the probable value, if any, of any additional or substitute procedural safeguards," and the availability of additional or
substitute evidence which might serve the interests of both litigants.
Id. (internal quotation marks omitted).
In sum, I disagree that the plurality in Hamdi endorsed a categorical acceptance of such hearsay declarations for all alleged enemy
combatants regardless of the place of seizure or the other circumstances at hand. In my view, the balancing test set forth in Mathews,
and discussed in the context of enemy-combatant proceedings in
Hamdi, presumes that the process due a detainee, including enemy
combatants, will indeed vary with the facts surrounding the detention
and the precise governmental burdens that would result from providing the normal procedures due under our constitution. See Mathews,
424 U.S. at 334 ("[D]ue process, unlike some legal rules, is not a
technical conception with a fixed content unrelated to time, place and
circumstances. Due process is flexible and calls for such procedural
protections as the particular situation demands" (internal quotation
marks and alteration omitted)); Hamdi, 542 U.S. at 526 (noting that
courts in habeas cases "retain some ability to vary the ways in which"
enemy combatants may present and rebut facts "as mandated by due
process"). This balancing will require flexibility on the part of the
habeas court in order to deal with the wide variety of situations
involved in each individual case and is a necessary component of the
Hamdi framework. Thus, on remand, the locus of al-Marris seizure
will not forbid his classification as an enemy combatant subject to
military detention or foreclose the district court from lessening the
normal procedures where appropriate in the balance of the competing
interests, but it is not irrelevant to the task of weighing the interests
at stake and balancing the risks involved to determine what due proprocess [would] have [a] dire impact on the central functions of warmaking." Id. I cannot read this language divorced from the context in which
it was written and would demand no more than the same benefits/burdens analysis given to Hamdi.
90
cess protections are due him in his quest to challenge his designation
and continued detention by our military. See Mathews, 424 U.S. at
334 ("[R]esolution of the issue of whether [the] procedures provided
. . . are constitutionally sufficient requires analysis of the governmental and private interests that are affected.").14
2.
In this case al-Marris "private interest affected by the official
action" is the same as that of Hamdi, i.e., the liberty interest in being
free from unlawful seizure and detention. Hamdi, 542 U.S. at 529
(internal quotation marks and ellipsis omitted). The risk of an erroneous deprivation of al-Marris liberty interest, however, is not identical
to the risk that was present in Hamdi. Al-Marri was not captured on
the battlefields of Afghanistan or Iraq, nor even apprehended in a
neighboring country where al Qaeda trains its soldiers. He was
arrested by civilian federal authorities while residing in Illinois. I am
acutely aware of the dangers of detention and imprisonment without
compliance with criminal process safeguards, dangers that are even
greater when the military detains persons inside the borders of the
United States. In my view, the risk of erroneously detaining a civilian
or citizen in this country as an enemy combatant is much greater
inside the United States than in the very different context addressed
14
Thus, the locus of capture is not an artificial or categorical distinction, nor is it the lynchpin of my view. I have made it clear that I do not
rule out the possibility that the Rapp Declaration might be acceptable,
although al-Marri is entitled to have the basis for such acceptance
explained to an Article III court before he is deprived of his liberty interest in being free from physical detention. Actually, I propose that alMarri receive exactly what the Hamdi plurality gave to Hamdi a
directive that the district court weigh his rights against the actual governmental burdens to determine whether a lessening of the normal procedures is warranted. For the reasons discussed by the Hamdi plurality, the
locus of capture affects the question of whether we should accept less
reliable evidence, such as a hearsay affidavit, than we normally would in
habeas cases. But this is because capture in a war zone almost certainly
will increase the burden placed upon the Executive by requiring production of direct or first-hand evidence supporting the designation. It is not
simply because the detainee was abroad when seized.
91
by the Supreme Court in Hamdi, i.e., a conventional battlefield within

the borders of a foreign country in which we are fighting our enemies.
On the other hand, we must consider the governments interest "in
detaining those who actually pose an immediate threat to the national
security of the United States during ongoing international conflict,"
Hamdi, 542 U.S. at 530, and in "ensuring that those who have in fact
fought with the enemy during a war do not return to battle against the
United States," id. at 531, as well as "the burdens the [g]overnment
would face in providing greater process," id. at 529.
Here, the government asserts that the Rapp Declaration, which
summarizes the intelligence gathered on al-Marris activities as an alQaeda operative, is sufficient to meet its initial burden of proving that
al-Marri was properly designated an enemy combatant. However,
unlike in Hamdi, the government has presented only the Rapp Declaration. It has made no attempt to show that this hearsay evidence
"need[s] to be accepted as the most reliable available evidence from
the [g]overnment," id. at 533-34, or that additional protections to
ensure that the innocent are not detained by our military would be
"unworkable and inappropriate in th[is] enemy-combatant setting," id.
at 535. Nor has there been any consideration of the "probable value,
if any, of additional or substitute procedural safeguards" or the availability of more reliable evidence that might be presented by substitute
methods which account for the governments weighty interests. Id. at
529 (internal quotation marks omitted).
As previously noted, al-Marri argued below that he believed the
discovery sought would be primarily from civilian agencies that could
produce it without interfering with the war powers and war operations
of this government.15 At a minimum, I believe the government should
15
For example, it seems that at least some portions of the Rapp Declaration merely summarize interviews of al-Marri conducted by FBI agents
after his civilian arrest and by DOD personnel once he was transferred
to military custody and imprisoned in the Charleston Naval Brig. There
is every indication that these governmental agents have first-hand information about the basis for al-Marris detention and, unlike the military
personnel at issue in Hamdi, are present in the United States. The government has made no showing that it would be unduly burdensome to the
war effort or, more particularly, to its efforts to carry out the directives
of the AUMF, to have them appear, either in person or by their own firsthand affidavits, before the district court.
92
be required to demonstrate to the district court why this is not the case
and why, in balancing the liberty interest of the detainee and the
heightened risk of erroneous deprivation, the Rapp Declaration should
be accepted as the most reliable available evidence the government
can produce without undue burden or serious jeopardy to either its
war efforts or its efforts to ensure the national security of this nation.
3.
In this context, the Constitution prohibits subjecting an individual
inside the United States to military detention unless he fits within the
legal category of an enemy combatant in the armed conflict against
al Qaeda or its supporting nations. If the allegations contained within
the Rapp Declaration are true, then al-Marri fits within the exception
and can be properly designated an enemy combatant and militarily
detained pursuant to the authority granted the President in the AUMF.
He would be properly classified as an enemy combatant who infiltrated our country under false pretenses for the purpose of waging war
via terrorist activities.
Because al-Marri was seized and detained in this country, however,
he is entitled to habeas review by a civilian judicial court and to the
due process protections granted by our Constitution, interpreted and
applied in the context of the facts, interests, and burdens at hand. To
determine what constitutional process al-Marri is due, the court must
weigh the competing interests, and the burden-shifting scheme and
relaxed evidentiary standards discussed in Hamdi serve as important
guides in this endeavor. Hamdi does not, however, provide a cookiecutter procedure appropriate for every alleged enemy-combatant,
regardless of the circumstances of the alleged combatants seizure or
the actual burdens the government might face in defending the habeas
petition in the normal way.
Al-Marri clearly stands in a much different position from Hamdi.
He was not captured bearing arms on the battlefield of Afghanistan,
but was arrested within the United States by the FBI as a result of the
9/11 investigation and subsequent intelligence operations conducted
by our government. This does not preclude his designation as an
enemy combatant, but we cannot ignore that the evidence supporting
his designation is not likely buried under the rubble of a foreign bat-
93
tlefield although it might be equally unavailable for national security reasons. Thus, unlike in Hamdi, the governments interest "in
reducing the process available to alleged enemy combatants" may not
be "heightened by the practical difficulties that would accompany a
system of trial-like process." Id. at 531 (emphasis added). In sum, the
government has not demonstrated that al-Marris fair opportunity for
rebuttal requires no more than that which would have been accorded
to Hamdi on remand.
Al-Marri, like any person accused of being an enemy combatant,
is entitled to a fair, meaningful opportunity to contest that designation
by requiring the government to demonstrate through "the most reliable available evidence" that he is an enemy combatant, denying the
allegations against him, and presenting evidence in support of his
contest. Id. at 534. As in Hamdi, the evidence which will be accepted
and the determination of the manner in which due process proceedings must occur will again be left largely 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 indicated is necessary in this setting, engaging in a factfinding process that is both prudent and
incremental. We have no reason to doubt that courts faced with these
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"); accord Boumediene, 553 U.S. at ___,
slip op. at 67-68 ("We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of
the detainees habeas corpus proceedings. We recognize, however,
that the Government has a legitimate interest in protecting sources
and methods of intelligence gathering; and we expect that the District
Court will use its discretion to accommodate this interest to the greatest extent possible. . . . These and . . . other remaining questions are
within the expertise and competence of the District Court to address
in the first instance."). In this regard, the district court retains all its
normal flexibility to vary the manner in which the presentation of evidence occurs in enemy-combatant proceedings. It is not precluded
from accepting the hearsay declaration should it conclude that threats
to national security or the war efforts dictate its use. See Hamdi, 542
U.S. at 533-34; see also Boumediene, 553 U.S. at ___, slip op. at 67
(Habeas corpus courts may not "disregard the dangers the detention
94
in these cases was intended to prevent. . . . Certain accommodations

can be made to reduce the burden habeas corpus proceedings will
place on the military without impermissibly diluting the protections
of the writ."). But, it is not handcuffed by an inflexible procedure that
would demand acceptance of a hearsay declaration from the government simply because the government has labeled al-Marri an enemy
combatant.
The general rule, therefore, is that al-Marri would be entitled to the
normal due process protections available to all within this country,
including an opportunity to confront and question witnesses against
him. But, if the government can demonstrate to the satisfaction of the
district court that this is impractical, outweighed by national security
interests, or otherwise unduly burdensome because of the nature of
the capture and the potential burdens imposed on the government to
produce non-hearsay evidence and accede to discovery requests, then
alternatives should be considered and employed. Given the grave
national security concerns in matters such as this, and that the Rapp
Declaration references not only al-Marris activities in this country
but also those he engaged in abroad prior to his entry here, the Rapp
Declaration might conceivably prove to be "the most reliable available evidence" within the meaning of Hamdi, at least as to some allegations. However, I am not satisfied to let matters stand as they are
when the government has not even been required to demonstrate to
the district court why it cannot or should not be required to produce,
even for ex parte examination, any of the supporting evidence relied
upon by Rapp to justify al-Marris detention. Here, the government
has made no showing that "[h]earsay . . . [needs] to be accepted as
the most reliable available evidence from the [g]overnment" or that
the "exigencies of the circumstances . . . demand . . . [that the] enemycombatant proceeding[ ] . . . be [otherwise] tailored to alleviate their
uncommon potential to burden the Executive at a time of ongoing
military conflict." Hamdi, 542 U.S. at 533-34; cf. Boumediene, slip
op. at 64-65 ("Practical considerations and exigent circumstances
inform the definition and reach of the laws writs, including habeas
corpus. The cases and our tradition reflect this precept.").16
16
The Boumediene Court held that the procedural protections given to

enemy combatants under the Military Commissions Act of 2006, Pub. L.
95
I think due process, at a minimum, demands that the government

make this showing. It is only after that showing has been made, i.e.,
"once the [g]overnment puts for credible evidence that the habeas
petitioner meets the enemy-combatant criteria," that "the onus could
shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria." Id. at 534 (emphasis added).
"In the words of Mathews, process of this sort would sufficiently
address the risk of an erroneous deprivation of a detainees liberty
interest while eliminating certain procedures that have questionable
additional value in light of the burden on the [g]overnment." Id.
D.
Concluding that the procedural framework employed below has not
been shown to be constitutionally sufficient, however, does not completely end the inquiry. The district court held that the Hamdi framework, with its relaxed evidentiary standards and presumption in favor
No. 109-366, 120 Stat. 2600, fell "well short of the procedures and
adversarial mechanisms that would eliminate the need for habeas corpus
review," id., 553 U.S. at ___, slip op. at 37, noting in particular that
while "[t]he detainee is allowed to present reasonably available evidence, . . . his ability to rebut the Governments evidence against him
[which is accorded a presumption of validity] is limited by the circumstances of his confinement and his lack of counsel at th[at] stage," id.,
553 U.S. at ___, slip op. at 38 (citation omitted). And while the dissent
disagreed that the CSRT hearings were an insufficient substitute for
habeas, it too pointed out in defense that the CSRT provides "every petitioner . . . the right to present evidence that he has been wrongfully
detained," "includ[ing] the right to call witnesses who are reasonably
available, question witnesses called by the tribunal, introduce documentary evidence, and testify before the tribunal." Id., 553 U.S. at ___, slip
op. at 17 (Roberts, C.J., dissenting). Nowhere, in either Hamdi or
Boumediene, do I find support for the view that a detainee may be wholly
deprived of all discovery and all rights to cross-examination and confrontation regardless of the availability of the witnesses and documentary evidence without any inquiry into whether exigent circumstances
or other concerns for national security necessitate such a drastic lessening of the process normally available who challenge their executive
detention.
96
of the government, applies to every enemy-combatant case, permitting the government to meet its initial burden with a hearsay declaration regardless of the location of capture or the citizenship of the
detainee. The district court also held that the Rapp Declaration was
sufficient to meet the governments initial burden, entitling it to the
favorable presumption and shifting to al-Marri the burden of refuting
the allegations by "more persuasive" evidence. However, al-Marris
petition was not ultimately dismissed because the district court
weighed competing factual evidence and determined that it supported
a finding that al-Marri was an enemy combatant, i.e., that the allegations of the Rapp Declaration were true. Rather, the district court dismissed the petition because al-Marri failed to come forward with
affidavits and documents of his own as required by the courts order,
thereby ostensibly failing to contradict the governments position
"with more persuasive evidence."
Al-Marri, however, did not ignore the district court. He filed a
pleading in which he denied the allegations in the Rapp declaration,
he denied that he was an enemy combatant, and he denied he had
entered the United States to commit hostile acts. In this, his first
opportunity to contest his designation as an enemy combatant, he had
been completely denied any discovery, not been allowed to see the
evidence upon which the allegations were based, and not told even the
identity of his accusers, all without adequate explanation or justification. Given that his burden was not just to contest, but to disprove,
he was placed at a substantial disadvantage. And despite the efforts
that have been made to slough off or ignore the burden of proof
placed upon him, the fact warrants emphasis that al-Marri was
required under these circumstances to prove that he was not an enemy
combatant by more persuasive evidence. See J.A. 183 (holding that
al-Marri would be given sixty days to file factual evidence to rebut
the Rapp Declaration by "more persuasive evidence, but if "unable to
produce more persuasive evidence than that produced by the government," i.e., the Rapp Declaration, "the inquiry [would] end there"). He
did contest the constitutionality of the process to which he had been
subjected, and he declined for the time being "to assume the burden
of proving his innocence." J.A. 231. Had he produced evidence, it is
possible that the district court might have found his contrary evidence
sufficiently "more persuasive" than the Rapp Declaration, but proving
he was not the enemy would have gotten al-Marri exactly nothing as
97
a practical matter since the government had been guaranteed the

option of further proceedings against him.
In the end, the district court rejected al-Marris petition because it
presumed that the process it utilized was a constitutional one, the
point on which I disagree. I am aware of no case in which a person
detained in this country has been stripped of the opportunity to contest the legality of his detention for refusing to participate in an
unconstitutional process. Nor has any been pointed out to me. A criminal defendant cannot claim a procedural due process violation after
he has refused to avail himself of protections that comport with his
constitutional rights, but al-Marri is not presently a criminal defendant
and he refused to participate in a process that, in my judgment, was
not constitutional.
In any event, given the unique and uncertain circumstances in
which al-Marri found himself as he progressed in his challenge, I
think it would be unfair to punish al-Marri by dismissing his petition
on this basis. Al-Marri had been charged criminally with serious
crimes prior to his designation as an enemy combatant. After his
transfer from civilian to military custody, he advanced a novel but
plausible argument that, as a resident seized within this country, he
should be considered a civilian who could not be detained as an
enemy combatant and he should be returned to the criminal justice
system. Were he ultimately successful on this issue, al-Marri would
be accorded the presumption of innocence and the Fifth Amendment
right not to "be compelled . . . to be a witness against himself." U.S.
Const. Amend. V. Al-Marri simultaneously advanced a second, plausible argument that the Hamdi framework would not meet the minimum procedural due process requirements in his quite different
situation, and that he was entitled to something more akin to the criminal process protections. As evidenced in Hamdi, Padilla, and this
case, the government frequently changes the manner in which it deals
with alleged enemy combatants during the pendency of habeas proceedings, including transferring detainees back and forth from civilian
to military detention when it deems it prudent. Accordingly, al-Marri
had every reason to fear that were he to give evidence on his behalf
in an attempt to meet the "more persuasive" standard, the government
might then choose to transfer him back to civilian custody and use his
own evidence against him.
98
Given the serious nature of the claims before us and the uncertainties which existed at the time, and the fact that al-Marri was deprived
of any opportunity to obtain any direct or first-hand evidence from
those who had arrested him and later detained him, I cannot be overly
critical of al-Marris strategy of not responding to the Rapp Declaration with rebuttal evidence beyond his general denial, and I cannot
sanction dismissal of al-Marris habeas petition based upon a choice
not to participate in the constitutionally and statutorily insufficient procedure.17 Al-Marri may have squandered an opportunity to contest his
designation, but he did not squander a "meaningful opportunity" to do
so.
IV. Conclusion
To conclude, the issues we decide today are significant for the reasons stated throughout all of the opinions. But, in my judgment, there
are additional concerns implicated by our decision that may have
gone without sufficient notice. The case before us deals on the surface
with a foreign national who has entered the United States. But the
rights al-Marri asserts are those available under our Constitution to
anyone within our borders, including, obviously, American citizens.
Under the current state of our precedents, it is likely that the constitutional rights our court determines exist, or do not exist, for al-Marri
will apply equally to our own citizens under like circumstances. This
means simply that protections we declare to be unavailable under the
Constitution to al-Marri might likewise be unavailable to American
citizens, and those rights which protect him will protect us as well.
The Hamdi court gave the government the opportunity to use hearsay testimony when practical considerations required it, and the court
suggested that this evidence might also be accompanied by a presumption of validity. See id. at 534. Because the detainee must prove
a negative that he is not an enemy combatant to obtain release
and he or someone on his behalf must do it with more persuasive evi17
See 28 U.S.C.A. 2246 ("On application for a writ of habeas corpus,

evidence may be taken orally or by deposition, or, in the discretion of the
judge, by affidavit. If affidavits are admitted any party shall have the
right to propound written interrogatories to the affiants, or to file answering affidavits.") (emphasis added).
99
dence in circumstances where the military may be holding the

detainee incommunicado, simple fairness seems to me to require that
first-hand evidence from the government should be the norm and the
use of hearsay the exception. Add to the mix that the individual could
be an American citizen and that the governments evidence could be
here in the United States, easily accessible and publicly disclosable,
and the need for a check on the governments use of a hearsay affidavit to justify the long-term military detention of a person becomes
obvious.
In these uncertain times, we must tread carefully when balancing
our need for national security with our rights as individuals. This case
is fraught with danger to individual rights and for that reason, I
expressly limit the reach of my opinion and decide no more than is
explicit and necessary to address the issues presented to us.
If the allegations against al-Marri are true, al-Marri is a foreign
national and member of al Qaeda who entered the United States with
a purpose to commit additional hostile and war-like acts within our
homeland, and he may therefore be detained as an enemy combatant
under the AUMF. Accordingly, I would affirm the district courts
order denying al-Marris motion for summary judgment on the issue
of whether the President possesses the legal authority to detain alMarri as an enemy combatant.
However, because al-Marri was present within our borders at the
time our intelligence sources identified him as an enemy combatant,
he is entitled to contest his designation under the burden-shifting
scheme outlined in Hamdi. Under this scheme, the government may
demonstrate that the balance of the competing interests weighs on the
side of lessened due process protections, which al-Marri and his counsel may contest. But because the district court applied Hamdis lessened procedures to al-Marri without any additional inquiry or
balancing of the respective interests, I would hold that the process alMarri received was constitutionally insufficient, vacate the district
courts order dismissing al-Marris petition, and remand for further
proceedings.
GREGORY, Circuit Judge, concurring in the judgment:
I join the per curiam opinion reversing and remanding the district
courts decision because "al-Marri has not been afforded sufficient
100
process to challenge his designation as an enemy combatant." (Per

Curiam Op. at 5). Further, I join in Judge Motzs concurrence. While
I respect the opinions and tireless work of my colleagues, I write separately to provide historical context and to express my intransigent
belief that the Constitution requires a person detained in the United
States under the Authorization for the Use of Military Force
("AUMF") receive a determinate level of due process to justify the
denial of his liberty. And it is the role of this Court to provide clear
guidance as to the contours of that due process.
The horrific attack on 9/11 resulted in congressional passage of the
AUMF, the most far-reaching bestowal of power upon the Executive
since the Civil War. The AUMF authorizes the President to "use all
necessary and appropriate force against . . . persons" with a connection however attenuated that connection may be to the 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 discuss below, the AUMF punishes conduct, not status. Therefore, the
location and citizenship of a putative enemy should be of no consequence in determining the level of due process that an enemy combatant detained in America under the AUMF, like al-Marri, should
receive.
The majority of my colleagues agree that a person of al-Marris
status is entitled to more due process than that which he received, but
unfortunately, there is no concrete guidance as to what further process
is due. Little doubt exists that this judgment will leave the district
court with more questions than answers. In deciding what this process
should entail, the district court can find wise counsel in Supreme
Court and Fourth Circuit precedent, including our decision in United
States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004), and in the statutory framework Congress created for handling classified material in
a judicial setting, the Classified Information Procedures Act
("CIPA"), 18 U.S.C. App. 3, 1-16 (West 2000 & Supp. 2007).
I.
Every American, unless clearly abrogated by congressional act or
deprived by due process of law, has a right to freedoma right pro-
101
tected by the writ of habeas corpus. Senator Arlen Specter, in introducing a bill to restore habeas corpus to all aliens detained within
U.S. territory, reminded us that the venerated right to habeas corpus
is "a right which has existed in Anglo Saxon jurisprudence since King
John in 1215 at Runnymede." 152 Cong. Rec. S11196-01 (December
5, 2006). Indeed, the writ is so cherished that it has been referred to
by Blackstone as "the most celebrated writ in the English law", 3 William Blackstone, Commentaries *129, a reverence echoed by the
Supreme Court. See Ex parte Bollman, 4 Cranch 75, 95 (1807)
(describing the writ of habeas corpus as the "[G]reat [W]rit.")
Alexander Hamilton lauded "the establishment of the writ of
habeas corpus" along with "the prohibition of ex-post-facto laws, and
of TITLES OF NOBILITY" as the Constitutions "greate[st] securities to liberty and republicanism." The Federalist No. 84 (Alexander
Hamilton) (emphasis in original); 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 vital instrument for the protection of
individual liberty is evident from the care taken to specify the limited
grounds for its suspension[.]"). The broad language of the AUMF, literally construed, gives the President carte blanche to take any action
necessary to protect America against any nation, organization, or person associated with the attacks on 9/11 who intends to do future harm
to America. Nevertheless, nothing calls for the lifting of the Great
Writ in the AUMF, in its legislative history, or even in congressional
or presidential public statements. But, if we approved the "due process" al-Marri received, we would do precisely that.
When an American citizen2 can be designated an enemy combatant,
arrested by the military, and held incommunicado with no knowledge
1
The Great Writ originally concerned whether the court had jurisdiction, see e.g., Ex parte Watkins, 28 U.S. 193 (1830), but it has "evolved
as a remedy available to effect discharge from any confinement contrary
to the Constitution or fundamental law." Preiser v. Rodriguez, 411 U.S.
475, 485 (1973).
2
As I explain below, while al-Marri is not an American citizen, that
distinction is insignificant under the AUMF, and the rights al-Marri
receives will no doubt be the standard by which we measure the due process rights of all enemy combatants detained in the United States.
102
of the justification for his detention (other than a declaration from a

government official who has no first-hand knowledge of the situation), it is not only al-Marris rights that are at stake, but rather the
rights of every man, woman, and child who breathe the fragrant scent
of liberty in this great land. I am cognizant that the Commander-inChief must be able to conduct a war without undue interference from
a co-equal branch of government. Accordingly, I recognize the delicate constitutional balance that must be struck between military
detention and the possibility of abridged due process proceedings during times of war. However, an independent judiciary is obliged to preserve the fundamental building blocks of our free society in this
case, the right to know why one has been deprived of his liberty and
a fair opportunity to answer that charge. See Boumediene, 553 U.S.
at ____, slip op. at 9 ("The Framers viewed freedom from unlawful
restraint as a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that freedom.").
Our judgment today, while entitling al-Marri to an indeterminate
measure of further due process, leaves much to be desired. Regrettably, the unvarnished result is that the AUMF authorizes the President
to substitute the full protections of the Great Writ for any enemy combatant detained in the United States with an alternative due process
framework tethered to mere suggestions.
The uncertain duration of this conflict the seven-year anniversary of 9/11 is less than three months away - and the fact that America
is not fighting a traditional nation-state means that the prospect of
future al-Qaeda operatives entering the country for deleterious purposes is very real and ongoing with no foreseeable end. See Boumediene, 553 U.S. at ___, slip op. at 56, 41 (predicting that the war on
terrorism may "last a generation or more" and noting that it is "already among the longest wars in American history"). It stretches the
bounds of credulity to think that a Treaty of Versailles-esque ceremony will ever end all terrorist hostilities against the United States.
With this troubling thought in mind, I attempt to provide a legal
framework to assist the district court in adjudicating this matter on
remand.
103
II.
The factual circumstances underlying this case "are entirely unlike
those of the conflicts that informed 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 contours of the due process framework for
the district court.3 In doing so, we must respect the Framers decision
to place the power to conduct a war in the hands of the Executive, see
U.S. Const. art. II, 2, cl. 1, but we must also recall the Supreme
Courts admonition that "a hermetic sealing off of the three branches
of Government from one another would preclude the establishment of
a Nation capable of governing itself effectively." Buckley v. Valeo,
424 U.S. 1, 121 (1976) (per curiam). This is particularly true when,
as here, the situation demands adjudication. It is, without question, the
sole province of the judicial branch to determine what process a person should receive. See Boumediene, 553 U.S. at ___, slip op. at 36
(holding that "the writ of habeas corpus is itself an indispensable
mechanism for monitoring the separation of powers"). As we pointed
out in United States v. Moussaoui, 382 F.3d 453, 469 (4th Cir. 2004):
This is not a case involving arrogation of the powers or
duties of another branch. The district court orders requiring
production of the enemy combatant witnesses involved the
resolution of questions properly-indeed, exclusivelyreserved to the judiciary. Therefore, if there is a separation
of powers problem at all, it arises only from the burden the
actions of the district court place on the Executives performance of its duties.
Accordingly, the separation of powers issue is of no moment here as
the remand requires the district court to perform a purely judicial
function: determine which evidence the Government must turn over
to al-Marri. Moreover, as we have seen in Moussaoui, and more
recently in United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), the
question of whether that evidence is publicly disclosable is of little
3
The din of my good colleagues urging an incremental due process

approach is problematic because "the relevant language in Hamdi did not
garner a majority of the Court." Boumediene, 553 U.S. at ___, slip op.
at 55.
104
relevance. Rather, the pertinent question is whether al-Marri will be

able to review such evidence, and if so, in what form that evidence
will be presented.
A.
While Judge Traxler states that "it is likely that the constitutional
rights our court determines exist, or do not exist for al-Marri will
apply equally to our own citizens under like circumstances" ante at
98 (Traxler, J., concurring in judgment) (emphasis added), it is
beyond peradventure that the Constitution will furnish an American
citizen, detained under these circumstances, no more rights than those
we provide al-Marri. Indeed, any other result would be inconsistent
with the very text of the AUMF and the Constitution. After Hamdi,
we decided Hanft v. Padilla, 423 F.3d 386 (4th Cir. 2005), where we
explained that the "distinction between an enemy combatant captured
abroad and detained in the United States, such as Hamdi, and an
enemy combatant who escaped capture abroad but was ultimately
captured domestically and detained in the United States, such as
Padilla" is insignificant when determining who is an enemy combatant. Id. at 393. Though we did not address the issue of what process,
if any, the Constitution owed Padilla, his arrest in the United States
entitled him to the same level of process that al-Marri should receive.
As the district court recognized, the Hamdi plurality set out some
guideposts for determining the due process rights of an enemy combatant. Most importantly, the Supreme Court held that "a citizendetainee seeking to challenge his classification as an enemy combatant must receive notice . . . and a fair opportunity to rebut the Governments factual assertions[.]". Hamdi, 542 U.S. at 533 (emphasis
added). The circumstances underlying al-Marris detention, when juxtaposed with the facts in Moussaoui, Padilla, and Abu Ali, and with
the Executives decision as to which of them should be designated
enemy combatants, inform my view as to what is "fair" in this case.
The Executives process for designating an al-Qaeda operative an
enemy combatant has very real legal consequences. Padilla, Moussaoui, and Abu Ali, all al-Qaeda operatives bearing the trademarks of
an enemy combatant, were charged, like al-Marri, in the civilian criminal system. Unlike al-Marri, however, the Executive allowed the
105
other defendants to proceed in civilian criminal trials for reasons that

are unknown.
In Padilla, the Executives decision to designate Padilla as an
enemy combatant upon his arrest gave credence to that decision.
Foregoing any discussion of due process, we held that "the availability of criminal process cannot be determinative of the power to
detain," Padilla, 423 F.3d at 394, because detention prevented the
enemy combatant from "return[ing] to the field of battle." Id. at 395.
Moreover, if Padilla was not detained, "criminal prosecution would
impede the Executive in its efforts to gather intelligence from the
detainee and to restrict the detainees communication with confederates so as to ensure that the detainee does not pose a continuing threat
to national security even as he is confined." Id. Given these justifications, the Executives subsequent decision to transfer Padilla from
military to civilian custody on the eve of the Supreme Courts review
of our decision came, in this Courts view, at a "substantial cost to the
governments credibility before the courts," Padilla v. Hanft, 432
F.3d 582, 585-86 (4th Cir. 2005) because:
we would regard the intentional mooting by the government
of a case of this import out of concern for Supreme Court
consideration not as legitimate justification but as admission
of attempted avoidance of review. The government cannot
be seen as conducting litigation with the enormous implications of this litigation-litigation imbued with significant
public interest-in such a way as to select by which forum as
between the Supreme Court of the United States and an inferior appellate court it wishes to be bound.
Though much of the Governments evidence against Padilla,
Moussaoui, and Abu Ali remains classified, the sheer volume of that
evidence is overwhelming.4 Beyond the Rapp Declaration, the Gov4
For example, the Government ultimately provided Moussaoui "with

millions of pages of documents, including more than 166,000 FBI interview reports and over 1.7 million pages of documents from the FBIs
ongoing criminal investigation of the September 11 attacks (the PENTTBOM investigation). In addition, the Government provided a number of
other evidentiary materials, such as audio and video tapes and grand jury
information." United States v. Moussaoui, 483 F.3d 220, 224 (4th Cir.
2007).
106
ernment turned nothing over to al-Marri. Therefore, at this stage, it is

impossible to determine if evidentiary concerns played any role in the
Executives decision to designate al-Marri an enemy combatant.
Al-Marri was arrested and imprisoned for eighteen months in the
civilian criminal system, and with less than one month before the
commencement of his trial, the Executive authorized al-Marris transfer to military custody. Just as we expressed our skepticism with the
Governments attempt to transfer Padilla from the military to the
civilian criminal system three and a half years after his initial detention, the Executives decision to designate al-Marri an enemy combatant on the very eve of his civilian criminal trial raises a similar
concern.
107
Volume 3 of 4
109
B.
While the Hamdi court held that "full protections that accompany
challenges to detentions in other settings may prove unworkable and
inappropriate in the enemy-combatant setting," Hamdi, 542 U.S. at
535 (emphasis added), this may not be the case for al-Marri. Determining the "workability" of providing al-Marri with first-hand evidence to support the Rapp Declaration is critical, especially in light
of the harsh conditions to which enemy combatants are subject. As
my colleagues point out, al-Marri was neither arrested on the battlefield in some far-flung location nor were his alleged criminal activities centered abroad. Moreover, from the information available to us,
al-Marris crimes relate to defrauding American financial institutions
and lying to American law enforcement. Nothing in the record undermines al-Marris contention that the majority of evidence relied upon
by the Government is in the possession of U.S. governmental agencies. If this proves to be the case, obtaining such evidence should be
"workable," and "fairness" requires an in-camera, ex-parte review of
such evidence. See Boumediene, 553 U.S. at ___, slip op. at 64-65
("Practical considerations and exigent circumstances inform the definition and reach of the laws writs, including habeas corpus.").
During this in-camera, ex-parte proceeding, the Government could
present evidence supporting the allegations against al-Marri and
would presumably make its case for keeping such evidence from him.
The district court would then decide which evidence is "appropriate"
for al-Marri to review, and subsequently, provide a rationale as to
why any remaining evidence is "inappropriate." In fashioning the process by which the district court should make its evidentiary determination, we need not develop a framework from whole cloth. Supreme
Court and Fourth Circuit precedent, when considered alongside CIPA,
provides the Judiciary with a step-by-step guide for balancing the
national security interests of the country with individual due process
rights.
C.
In Abu Ali, we presciently set forth the following statement on the
treatment of terrorists in our criminal system:
110
Persons of good will may disagree over the precise extent

to which the formal criminal justice process must be utilized
when those suspected of participation in terrorist cells and
networks are involved. There should be no disagreement,
however, that the criminal justice system does retain an
important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional
norms and bedrock values. As will be apparent herein, the
criminal justice system is not without those attributes of
adaptation that will permit it to function in the post-9/11
world. These adaptations, however, need not and must not
come at the expense of the requirement that an accused
receive a fundamentally fair trial.5
Abu Ali, 528 F.3d at 221 (emphasis added). Our judicial system is
well-equipped to handle classified material efficiently and to balance
an accuseds right to review evidence against national security interests. In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court
"dictate[ed] that the process due in any given instance is determined
by weighing the private interest that will be affected by the official
action against the Governments asserted interest, including the function involved and the burdens the Government would face in providing greater process." Hamdi, 524 U.S. at 529 (internal quotation
marks and citation omitted). Because much of the evidence al-Marri
requests may be readily available, assuming that evidence would not
compromise the Executives ability to wage war, the Government
should provide it to the district court.
i.
The Mathews calculus, albeit helpful, leaves many questions unanswered, particularly those concerning how the district court should
assess the classified informations relevance. "In the area of national
security and the governments privilege to protect classified information from public disclosure, we [have] look[ed] to CIPA for appropriate procedures." Abu Ali, 528 F.3d at 245. Prior to CIPAs enactment,
5
Like Moussaoui, Abu Ali was tried in the civilian judicial system.
Because both Abu Ali and Moussaoui could have been detained under
the AUMF, I find that the process provided to them is informative.
111
the Government was placed in the unenviable position of "abandon[ing] prosecution rather than risk possible disclosure of classified
information." Id. (internal quotation marks and citation omitted). By
structuring a framework for evaluating the use and admissibility of
classified evidence without public disclosure, CIPA alleviates this
dilemma. It provides that any hearing conducted "shall be held incamera" if the Attorney General provides the court with reasons for
why "that public proceeding may lead to the disclosure of classified
information."6 18 U.S.C.App. 6(a).
Section 6 of CIPA sets out a clear procedure for the district court
to utilize in handling classified evidence and determining its "use, relevance and admissibility." 18 U.S.C.App. 6(a). If the district court
finds the classified information relevant and material, CIPA requires
that the district court give it to the accused unless an adequate substitute can be provided. See Moussaoui, 382 F.3d at 476. In determining
the accessibility of such information, the district court should "take[ ]
cognizance of both the states interest in protecting national security
and the defendants interest in receiving a fair trial." United States v.
Fernanadez, 913 F.2d 148, 154 (4th Cir. 1990).
When weighing the competing interests of the Government and the
accused, common law privileges protecting the disclosure of evidence
continue to apply. See United States v. Smith, 780 F.2d 1102, 1107
(4th Cir. 1985) (en banc). Thus, common law privileges protecting
classified information from disclosure on account of military or state
secrets remain applicable. However, in the context of CIPA, we held
that privilege would "give way" if the classified information "is relevant and helpful to the defense of an accused or is essential to a fair
determination of a cause." Id. at 1107 (internal quotation marks and
citation omitted) (emphasis added).
ii.
CIPA provides the accused with access to classified documents, not
witnesses. Nevertheless, in Moussaoui, we held that, while CIPA was
not directly applicable, it "provides a useful framework for consider6
Section 6 also allows the district court to seal the records from any
in-camera proceedings. 18 U.S.C.App. 6(d).
112
ing the questions raised by Moussaouis request for access to the

enemy combatant witnesses." Moussaoui, 382 F.3d at 472 n.20. Similarly, CIPA is not directly applicable to al-Marris 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 guide the district courts
consideration of al-Marris evidentiary requests especially given that
al-Marri primarily requests documents.
Additionally, we held that Moussaoui should have qualified access
to material enemy combatant witnesses and their prior statements. In
order to establish the witnesses relevance, he only had to make a
"plausible showing" of materiality. Moussaoui, 382 F.3d at 472 (internal quotation marks and citation omitted). As al-Marri will likely be
placed in the same evidentiary quandary as Moussaoui i.e., no
direct access to enemy combatant witnesses he should likewise be
held to the same lower threshold in establishing the materiality of witnesses. Further, we also held that substituting actual testimony from
enemy combatants with an alternative procedure should "be an interactive process among the parties and the district court." Id. at 480.
Recognizing that "the burdens that would arise from production of the
enemy combatant witnesses are substantial," id. at 471, there are
times when such evidence, even via an affidavit, will be necessary to
substantiate the Governments evidence.
As a practical matter, this process could take place in an in-camera,
ex-parte hearing where the Government responds to al-Marris
requests for information and explains why national security concerns
preclude disclosing evidence. While some of al-Marris requests, such
as to depose high-level members of the Executive, may indeed prove
onerous, Moussaoui is an excellent template for the district court. It
demonstrates how, in consultation with the relevant parties, a court
can craft remedies that satisfy an enemy combatants unique evidentiary requests without unduly burdening the Government or compromising national security. Ultimately, in giving al-Marri a "fair
opportunity" to dispute his designation as an enemy combatant, the
district court should "seek a solution that neither disadvantages [alMarri] nor penalizes the government (and the public) for protecting
classified information that may be vital to national security." Id. at
477.
113
III.
If our remand is to be meaningful, the district court must demand
evidence supporting the veracity of the Rapp Declaration. Presumably, al-Marris civilian grand jury reviewed material portions of alMarris file prior to his classification as an enemy combatant. Common sense leads to the conclusion that many of the documents alMarri requests are located here in the United States. As we set out in
Moussaoui and Abu Ali, should the Government object to turning over
documents on the basis of national security concerns, the district court
has a very specific federal statute, CIPA, to guide its determination
of what documents can be turned over to al-Marri. In addition, the
Supreme Courts decisions in Mathews and Hamdi provide the appropriate balance that the district court should strike upon reviewing such
evidence.
In this time of angst and fear, we can find solace and wisdom in
the words of Thomas Jeffersonwords that have kept our nations
focus on noble principles in the worst of times. Speaking at his First
Inaugural, Jefferson included the "protection of habeas corpus"
among those "principles [which] form the bright constellation which
has gone before us and guided our steps through an age of revolution
and reformation . . . and should we wander from them in moments of
error or of alarm, let us hasten to retrace our steps and to regain the
road which alone leads to peace, liberty, and safety." Thomas Jefferson, First Inaugural Address, March 4, 1801. I urge the district court
to "retrace our steps" as it considers this case on remand.
WILLIAMS, Chief Judge, concurring in part and dissenting in part:
While I respect the lengthy and thorough writings in this case, I
believe that Ali Saleh Kahlah al-Marris 28 U.S.C.A. 2241 (West
2006 & Supp. 2007) petition presents a relatively straightforward factual situation.1 According to the declaration filed in this case (and
sworn under pain of perjury) by Jeffrey N. Rapp, the Director of the
Joint Intelligence Task Force for Combating Terrorism (the "Rapp
1
In light of Boumediene v. Bush, 553 U.S. ___, ___ S. Ct. ___ (June
12, 2008), I agree with the plurality opinion that we have jurisdiction
over al-Marris 28 U.S.C.A. 2241 (West 2006 & Supp. 2007) petition.
114
Declaration"), Al-Marri is a member of al-Qaeda who underwent

training in Afghanistan between 1996 and 1998 and was sent to the
United States as a sleeper agent on September 10, 2001.2 Accepting
these allegations as true, I believe, pursuant to the Authorization for
Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat.
224 (September 18, 2001) ("AUMF"), the President has the power to
detain al-Marri. Thus, on this issue I agree with the separate opinions
of Judge Traxler, Judge Wilkinson, and Judge Niemeyer. Unlike
Judge Traxler, however, given al-Marris failure to "participate in a
meaningful way," (J.A. at 244), before the magistrate judge and district court, I would hold that al-Marri cannot now challenge the factual basis for his detention before our court. Accordingly, like Judge
Wilkinson and Judge Niemeyer, I would affirm the dismissal of alMarris 2241 petition and therefore dissent from 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
Commander-in-Chief, 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. 115 Stat. at 224. The purpose of
such authorization, Congress made clear, was to "prevent any future
acts of international terrorism against the United States by such
nations, organizations, or persons." Id.
In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court
held that the AUMF granted the President the power to detain "enemy
combatants"as the term was defined in that caseincluding a
United States citizen captured overseas during the conflict in Afghanistan. Id. at 521. As the Court explained, detention of an enemy combatant fell within the range of "necessary and appropriate force"
granted by the AUMF because "detention to prevent a combatants
2
Because the separate opinions have spelled out the details of the allegations in the Rapp Declaration, I do not repeat them here.
115
3
return to the battlefield is a fundamental incident of waging war." Id.

at 519; see also In re Territo, 156 F.2d 142, 145 (9th Cir. 1946) (noting military detention serves "to prevent the captured individual from
serving the enemy.") Of equal import, however, is the Supreme
Courts holding that civilians may not be subject to military 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 of the AUMF,
he may be detained; if, however, he is not an enemy combatant, and
therefore a mere civilian, 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 forces hostile to the United States or coalition partners in
Afghanistan and who engaged in an armed conflict against the United
States there." Hamdi, 542 U.S. at 516 (plurality) (internal quotation
marks omitted). The Hamdi Court left it to lower courts to further
refine the definition in future cases, see Hamdi, 542 U.S. at 522 n.1
("The permissible bounds of the [enemy combatant] category will be
defined by the lower courts as subsequent cases are presented to
them.").
In the context of World War II, the Court defined the term "unlawful combatant" to include:
those who during time of war pass surreptitiously from
enemy territory into our own, discarding their uniforms
upon entry, for the commission of hostile acts involving
destruction of life or property, have the status of unlawful
combatants punishable as such by military commission.
Ex Parte Quirin, 317 U.S. 1, 35 (1942). The Court expounded later
that "enemy belligerents" "includ[ed] those acting under the direction
of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war." Id. at 37.
3
Indeed, the practice of detaining enemy combatants militarily predates

our Constitution. See Ex Parte Quirin, 317 U.S. 1, 31 (1942) (noting that
"[s]uch was the practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars.").
116
A distillation of these precedents, I believe, yields a definition of

an enemy combatant subject to detention pursuant to Congressional
authorizations as an individual who meets two criteria: (1) he attempts
or engages in belligerent acts against the United States, either domestically or in a foreign combat zone; (2) on behalf of an enemy force.
Given the specific allegations against al-Marri, I have little difficulty concluding that he satisfies the first criterion. First, the allegations set forth in the Rapp Declaration, if true, clearly show that alMarri was on United States soil to commit acts of belligerency against
the United States. See Quirin, 317 U.S. at 31 (stating that unlawful
combatants include those who commit "hostile acts involving destruction of life or property" on United States soil).
According to the Rapp Declaration, al-Marri also meets what I
view as the second requirement of an enemy combatant: that the belligerent acts be carried out on behalf of an enemy force. Unlike the
plurality, I cannot accept al-Marris contention that because he allegedly has ties only to al Qaeda, a terrorist organization that does not
control any nation, he does not meet this portion of the definition of
enemy combatant.
The plurality opinion may very well be correct that, under the traditional "law of war," persons not affiliated with the military of a
nation-state may not be considered enemy combatants. And I recognize the respect domestic courts have long afforded 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 to be construed to
violate the law of nations if any other possible construction
remains."). Here, however, Congress has, through the AUMF,
addressed precisely this question by clearly authorizing the President
to use force against "organizations," as well as against nation-states.
See Padilla v. Hanft, 423 F.3d 386, 395-96 (4th Cir. 2005) (noting
"the AUMF constitutes . . . a clear statement" in favor of detention).
As a specific and targeted congressional directive, the AUMF controls
the question of who may be detained, for purposes of domestic law
at least with respect to those individuals that fall within its scope.
The AUMF grants the President power to use force against "organizations" that he determines "planned, authorized, committed, or aided
117
in" the September 11 attacks. Al Qaeda is obviously an "organization"

that "planned, authorized, committed, or aided in" those attacks. Thus,
in my view, the AUMF has labeled al Qaeda an enemy force.4 See
also Hamdi, 542 U.S. at 518 ("There can be no doubt that individuals
who fought against the United States in Afghanistan as part of the
Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress
sought to target in passing the AUMF."); Padilla, 423 F.3d at 389
(defining "al Qaeda" as "an entity with which the United States is at
war"). In fact, al Qaeda provided the impetus for the enactment of the
AUMF. Indeed, "read in light of its purpose clause . . . and its preamble . . ., the AUMF applies even more clearly and unmistakably to [alMarri] than to Hamdi." Padilla, 423 F.3d at 396.
Certainly, the Constitution does not permit "a military trial . . . for
any offence whatever of a citizen in civil life, in nowise connected
with the military service." Milligan, 71 U.S. at 121-22. However, the
result in Milligan followed because the petitioner Milligan was not
"part of or associated with the armed forces of the enemy," Quirin,
317 U.S. at 45, and I see nothing in the Constitution that prohibits the
President, operating with the express consent of the Congress, from
declaring an individual associated with an organization that has
undertaken acts of war against the United States to be an enemy combatant. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635 (Jackson, J., concurring) (noting Presidential power is "at its
maximum" when the President operates with Congressional authorization).
I wish to emphasize that by permitting the President to militarily
detain al-Marri pursuant to the AUMF I am not being expansive; in
al-Marri we are dealing with someone squarely within the purposes
of the AUMF, which was passed to target organizations, like al
Qaeda, responsible for the September 11 attacks and to prevent future
4
While I understand al-Marris concern that, taken to its extreme, the

AUMFs reference to organizations or persons who "aided in" the September 11 attacks might produce absurd results, I do not believe we need
linger on that concern in this case. According to the Rapp Declaration,
al-Marri is a member of al Qaeda, which "planned," "authorized," and
"committed" those attacks.
118
terrorist attacks. This case does not present what to me are more difficult issues regarding enemy combatants and the scope of AUMF,
such as the status of an individual who joined al Qaeda after September 11, 2001, or an individual who is part of a designated foreign terrorist organization, see U.S. Dept of State, Office of the Coordinator
for Counterterrorism, 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), that played 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 not permitted,
see generally Hamdi, 542 U.S. at 519-20, we remain engaged against
the forces of al Qaeda in the border regions of Afghanistan to this day.5
Moreover, it is important to note the breadth of al-Marris argument. According to al-Marri, were authorities to have detained one of
the hijackers on September 11, box-cutter in hand, that hijacker could
have been militarily detained in the immediacy of the situation, but
thereafter would have had to be turned over to civilian courts.6 This
result would follow despite the fact that the hijacker would have been
poised to commit an act of warin fact an act of unlawful belligerency, see Quirin, 317 U.S. at 31against the United States. The
result also seems in tension with the Courts reminder in Quirin that:
By a long course of practical administrative construction by
its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously
from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of
unlawful combatants punishable as such by military commission.
5
I therefore need not address whether, if our military remained only

engaged in the conflict in Iraq, al-Marris ongoing detention would be
permitted under the AUMF.
6
Indeed, as I understand al-Marris argument, if Osama bin Laden had
been captured after September 18, 2001, but before actual military operations in Afghanistan took place, he, too, would not be subject to military
detention.
119
Id. at 35.
B.
Notwithstanding the broad congressional authorization provided in
the AUMF, al-Marri argues that Congress later circumscribed the
Presidents power of detention by passing the Patriot Act, Pub. L.
107-56, 115 Stat. 272 (2001) (entitled "Mandatory Detention of Suspect Terrorists; Habeas Corpus; Judicial Review"). The Patriot Act,
passed shortly after the AUMF, provides, 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 the Attorney General, but the Act
prohibits "indefinite detention." Instead, it requires that "not later than
7 days after the commencement of such detention," the Attorney General must either (1) begin "removal proceedings" or (2) "charge the
alien with a criminal offense." Id. 412(a). The Patriot Act does permit an extension of "additional periods of up to six months" if
removal is "unlikely for the reasonably foreseeable future" and the
aliens release "will threaten the national security of the United States
or the safety of the community or any person." Id.
Al-Marri argues that these more-specific provisions governing the
scope of detentions govern the more-general authorization found in
the AUMF. See Long Island Care at Home, Ltd. v. Coke, 127 S.Ct.
2339, 2348 (2007) ("[N]ormally the 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 is only true if the two provisions
deal with the same subject matter. Here, I view section 412 of the
Patriot Act to refer to the Presidents power, under Article II 3, to
"take Care that the Laws be faithfully executed." U.S. Const., art. II,
3. The statute refers to the Attorney General, the Presidents agent
in implementing the Take Care Clause, and it is found nestled within
the immigration code. Fairly read, the Patriot Act does not therefore
purport to limit the Presidents separate Commander-in-Chief power.
See Article II, 2, cl. 1 ("The President shall be Commander in Chief
of the Army and Navy of the United States, and of the Militia of the
several States, when called into the actual Service of the United
States."). But the authorization granted in the AUMF, with its explicit
reference to military force, relates to the Commander-in-Chief power.
Whatever limitations are present in the Patriot Act, therefore, do not
120
restrict the separate and distinct grant of power effected by the

AUMF.
C.
I am left with a simple set of facts: the AUMF grants the President,
who already has some inherent 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
powers conferred by the Constitution on him as Commander-in-Chief
and as the Nations organ in foreign affairs."), the power to use necessary and appropriate force against organizations and persons with a
role in the September 11 attacks; the Supreme Court has stated that
military detention is a "fundamental incident of waging war," Hamdi,
542 U.S. at 519; and, the Government alleges that al-Marri has been
a member of al Qaeda since at least 1996. I think it clear under these
circumstances that al-Marri can be detained as an enemy combatant
and agree with the separate opinions of Judge Traxler, Judge Wilkinson, and Judge Niemeyer that so hold. As the Court wrote over half
a century ago,
[T]he detention and trial of petitionersordered by the
President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave
public dangerare not to be set aside by the courts without
the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.
Quirin, 317 U.S. at 25.
Finding no such "clear conviction," particularly given that the President is acting in concert with Congress, I would hold that the President, operating pursuant to the AUMF, had the power to detain alMarri as an enemy combatant.
II.
I do not agree, however, with Judge Traxlers separate concurrence, which concludes that a remand is necessary to permit al-Marri
121
to further challenge his detention. Instead, because al-Marri shortcircuited the lower courts attempt to craft procedures meant to protect his due process rights, I would not reward his refusal to participate with a remand. To the contrary, the magistrate judge and district
court judge are to be commended for the extent to which they
responded to al-Marris concerns, and, indeed accommodated his only
specific request. In order to explain this conclusion, I briefly revisit
the proceedings below.
A.
On July 8, 2005, the district court entered an order concluding that
al-Marri could be detained as an enemy combatant and referring the
case to the magistrate judge for development of the appropriate procedures.7 On August 15, the magistrate judge held a telephonic conference with the Government and al-Marris attorneys to discuss what
procedures might be used in determining whether al-Marri was an
enemy combatant. During the hearing, the magistrate judge requested
that both parties "brief . . . the question of whether the Governments
affidavit in this case is entitled to the presumption, as outlined in
Hamdi, and if so, what must the petitioner do to rebut the presumption." (J.A. at 154.)
Following briefing from the parties, the magistrate judge entered an
order on December 19, 2005, setting forth suggested procedures for
addressing al-Marris detention. Citing to Hamdi, the magistrate judge
concluded "it appears that in the context of a classification of an individual as an enemy combatant by the Chief Executive, due process
requires the petitioner receive notice of the factual basis for his classification, and a fair opportunity to rebut the governments factual
assertions by presenting more persuasive evidence before a neutral
decisionmaker." (J.A. at 182.) To this end, the magistrate judge indicated it would "review the governments credible evidence in the
form of affidavits, such as the Mobbs Affidavit in the Hamdi case,"
and then would review "any responsive rebuttal evidence in the form
of affidavits and documents" from al-Marri. (J.A. at 182.) The magistrate judge also noted "[a]dditional guidance by the court in Hamdi
7
Because of this assignment by the district court, my discussion

focuses in large part upon the actions of the magistrate judge.
122
indicates that presumption in favor of the government may be appropriate and hearsay may need to be accepted." (J.A. at 179.) Thereafter, however, the magistrate judge made no further use of the word
"presumption," and instead explained that "[i]f the petitioner is unable
to produce more persuasive evidence than that produced by the government, the inquiry will end there." (J.A. at 183.) If, however, alMarri put forth "more persuasive evidence than that produced by the
government," something more akin to a "full-blown adversarial hearing" would occur. (J.A. at 183 (emphasis added).)
In describing the protections that might attend to such a hearing,
the magistrate judge noted, for instance, that objections under the
Federal Rules of Evidence to material "gathered on the field of battle," might be inappropriate but "might lie as to domestic evidence
obtained by law enforcement in the course of the war on terror." (J.A.
at 184.) After finding that the Government had indeed provided alMarri notice of the factual basis of his classification in the form of the
Rapp Declaration, the magistrate judge concluded the order by requiring al-Marri to file "any rebuttal evidence within sixty days." (J.A. at
184.)
After the district court withheld ruling on the magistrate judges
order until the procedures before the magistrate judge concluded, alMarri filed a response to the magistrate judges order, stating that,
without being permitted to review the Rapp Declaration in full, he
was unable to respond as required by the December 19, 2005 order.
The magistrate judge agreed, and on April 5, 2006, the Government
filed a declassified copy of the Rapp Declaration. On May 4, 2005,
al-Marri filed his response, contending that "he is unable to disprove
the allegations contained in the Rapp declaration because he has been
denied the opportunity to see the evidence upon which the allegations
are based." (J.A. at 231.) The response further stated that al-Marri
"has denied" and "continues to deny" the Governments allegations.
(J.A. at 230-31.) Al-Marris response concluded by noting that "Petitioner respectfully declines at this time the Courts invitation to prove
his own innocence, a burden that is unlawful, unconstitutional, and
un-American." (J.A. at 231.)
The magistrate judge entered a Report and Recommendation on
May 8, recommending dismissal of al-Marris 2241 claim. It began
123
by referencing its earlier order and summarizing the Rapp Declaration, explaining that the "issue here is which is more persuasive on
the issue of whether the petitioner falls outside the enemy combatant
criteria, the governments credible evidence or the responsive rebuttal
evidence which the petitioner wishes to present, with special attention
to the risk of erroneous deprivation." (J.A. at 243 (emphasis
added).) The magistrate judge proceeded to note al-Marris statement
that he declined "at this time" to submit evidence and his attendant
failure to put forth anymore than a general denial of the Governments allegations.
It summarized: "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." (J.A. at 244.)
For example, "Al-Marri present[ed] no information concerning his
graduate studies and [did] 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." (J.A. at 244.) The magistrate judge expressed frustration with al-Marris failure to engage
"fact-finding procedures that are intended to be both prudent and
incremental," (J.A. at 248), and recommended that al-Marris 2241
petition "be dismissed," (J.A. at 249.) In so doing, the magistrate
judge concluded that "it appears to the court that the Executive Declaration is more persuasive than Petitioners general denial . . . and
there is no basis for concluding that an erroneous deprivation has
occurred." (J.A. at 248.)
Following a de novo review, the district court adopted the magistrate judges Report "to the extent" it was consistent with the district
courts order. (J.A. at 355.) In analyzing al-Marris petition, the district court concluded that the framework created by Hamdi applied,
that it would entertain a presumption in favor of the Governments
evidence, and that once the Government put forth credible evidence
the burden moved to al-Marri to "rebut that showing with more persuasive evidence." (J.A. at 347 (internal quotation marks omitted).)
The district court first discussed the Rapp Declaration and rejected alMarris contention that, at the preliminary fact-finding stage, the Government could not rely on a hearsay declaration; it determined that
"hearsay may be used to satisfy the Governments burden of provid-
124
ing an alleged enemy combatant with notice of the factual allegations

against him." (J.A. at 349.) The Rapp Declaration was thus permissible "at the initial phase," (J.A. at 349) and the district court expressly
noted "[w]hether the Rapp Declaration would be admissible during
the later phases of such a proceeding is not a question before the
Court today." (J.A. at 351.)
The district court found that the Rapp Declaration "met [the Governments] burden of providing a factual basis in support of [alMarris] classification and detention as an enemy combatant." (J.A.
at 352.) The district court, like the magistrate judge, then recounted
al-Marris complete refusal to offer anything more than a general
denial. Finding that al-Marris "stance . . . ignores his responsibility
to prosecute this habeas action," the district court then ordered the
dismissal of al-Marris 2241 petition. (J.A. at 354.)
B.
In Hamdi, the Court provided three avenues of guidance for lower
courts when considering future enemy combatant cases. First, the
Court noted that due process requires that an "enemy combatant must
receive notice of the factual basis for his classification, and a fair
opportunity to rebut the Governments factual assertions before a neutral decisionmaker." Hamdi, 542 U.S. at 533. Second, the Court noted
that " 2241 and its companion provisions provide at least a skeletal
outline of the procedures to be afforded a petitioner in federal habeas
review." Id. at 525. Thus, "Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that
courts in cases like this retain some ability to vary the ways in which
they do so as mandated by due process." Id. at 526. Finally, the Court
explained that whatever process is to be utilized, it must be carried
out with "caution," and be "both prudent and incremental." Id. at 539.
In this case, the magistrate judge, and later the district court,
attempted to follow those guiding principles. First, both the magistrate judge and district court remained ever-cognizant of Hamdis
command that the enemy combatant be provided notice and an opportunity to be heard, structuring the proposed procedures around that
command. I see nothing in Hamdi that forbids a sworn statement
like the Rapp Declarationfrom providing sufficient "notice" of the
125
allegations against al-Marri. Moreover, as noted, the magistrate judge

required the Government to provide al-Marri the declaration in
response to his request.
With respect to the Supreme Courts guidance that the process
resemble customary habeas review, the procedures the magistrate
judge proposed for handling the initial stage of the proceedings
which the district court later adopted in substantial partin many
ways mirrored traditional habeas practice under 28 U.S.C.A. 2254
and 2255 by requiring both parties to put forth affidavits and other
materials for an initial determination of which partys presentation
was more persuasive.
In this regard, the initial procedures adopted by the magistrate
judge also hewed to the common precept that "the habeas petitioner
generally bears the burden of proof." Garlotte v. Fordice, 515 U.S.
39, 46 (1995); see, e.g., Vega v. U.S., 493 F.3d 310, 319 (3d Cir.
2007) (noting in adopting rule for sentencing credit cases under
2241 that "[a]s with any habeas petition, this test puts the initial burden on the prisoner to show his right to relief"). Again, this approach
appears consistent with the guidance provided in Hamdi, that 2241
and its companion provisions may provide an outline for how to proceed in enemy combatant cases.
Finally, and most importantly, Hamdi stressed the need for a "prudent" and "incremental" process. The magistrate judge proposed just
that, outlining an iterative process in which al-Marri failed to participate "in any meaningful way." (J.A. at 244.) Indeed, as the magistrate
judge noted, al-Marri refused to deny allegations in the Rapp Declaration that were peculiarly within al-Marris knowledge. He failed to
dispute even the assertion that he was performing poorly in school.
It is simply beyond the pale for al-Marri to contend that he was
unable, without further discovery from the Government, to put forth
evidence that he did or did not attend class. By failing to participate,
Al-Marri simply short-circuited the entire "incremental" process.
I am unwilling to criticize the lower courts for, in essence, failing
to be more creative. Hamdi is the only Supreme Court case providing
any guidance on habeas procedures in enemy combatant cases, so it
was only natural for the lower courts to start with Hamdis frame-
126
work. The magistrate judge was faced with al-Marris position that
only a criminal trial was adequatea position that overlooked the fact
that, under Hamdi, once the detention question is answered in the
affirmative, it a fortiori follows that a criminal trial is not required.
The magistrate judge reiterated its concern with al-Marri receiving a
factual basis for his classification and having the opportunity to
respond before a neutral decisionmaker. The magistrate judge then set
forth a proposed two-stage process similar to the normal procedures
of a habeas action that would have, if fully implemented, given alMarri procedures far beyond those adopted in Hamdi, including discovery. But this process was not implemented fully precisely because
al-Marri refused to participate in the proceedings, proceedings that
contemplated the active participation of al-Marrithe habeas petitioner. Thus, it is because of al-Marris own actions that we are here
today, unsure of how those procedures would have worked. Given
that the procedural posture of this case is a result of his own intransigence, I would not reward al-Marri, the petitioner and the party with
the burden of prosecuting his habeas action, with a remand.
Judge Traxler, in contrast, believes the real problem is that the
magistrate judge and district court engaged in a presumption in favor
of the Governments evidence. Indeed, after recounting the detailed
allegations of the Rapp Declaration, the district court "[a]fford[ed]
this evidence a favorable presumption," (J.A. at 352), and found that
the Government had met its initial burden, shifting the burden to alMarri to rebut the Governments factual case against him. This "presumption" was nothing more than a finding that the Governments
evidence was sufficient to move to the next step in the "incremental"
fact-finding processa process common to traditional habeas practice and embraced by Hamdi as the recipe for future cases. Beyond
this initial stage, we simply do not know how the Governments evidence would have later been treated by the district court had al-Marri
not declined to participate from the start.
C.
In sum, I am certainly sympathetic to the concerns laid out by
Judge Traxler that American citizens and resident aliens apprehended
and detained on American soil have access to procedures to safeguard
their due process rights, and I would likely view this case quite differ-
127
ently if I believed that the magistrate judge had presumed al-Marri to

be an enemy combatant from the start. I likewise find merit in Judge
Wilkinsons position that we not force the Government to release
information bearing on national security unnecessarily. I simply find
it unnecessary, in al-Marris case, to try to strike this delicate balance.
The magistrate judge suggested an "incremental" procedure that mirrored traditional 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 far beyond that
required by Hamdi. In that context, al-Marris total refusal to assist
the magistrate judge is inexcusable. Because al-Marri has "hoist[ed]
[himself] with his own petar," William Shakespeare, Hamlet Act 2,
sc. 2, I would not remand the case for further proceedings.
III.
I would thus affirm the district courts denial of al-Marris 2241
petition.8
Judge Duncan has authorized me to indicate that she joins in this
opinion.
WILKINSON, Circuit Judge, concurring in part and dissenting in
part:
I respectfully dissent from the reversal of the judgment. I agree that
we possess jurisdiction to entertain al-Marris habeas petition. I also
believe the district court to be right in all respects and that its judgment dismissing the petition should be affirmed.
I wish to express my respect for those who see this matter differently. I admire the skill with which my fine colleagues and the principal and amicus briefs have argued the case for reversal, and I respect
the sense of conviction and principle that animates their views. I real8
Although I, like Judges Wilkinson, Niemeyer, and Duncan, would

decide this case differently than the plurality (Judges Michael, Motz,
King, and Gregory) and Judge Traxler, I want to express my deepest
respect for their views. My colleagues efforts in this case are to be commended.
128
ize too that the opinions in this case are lengthy, but that reflects nothing more than the conscientious attention each member of the court
has given this important case.
I quite disagree with the reversal of the judgment. I believe that
Congress in the AUMF has authorized the military detention of alMarri and that al-Marri has received the process he is due.
I recognize that the military detention of someone lawfully in this
country is a momentous step, but a refusal to recognize Congresss
ability to authorize such a detention in these circumstances would be
more momentous still. The present case reminds that we live in an age
where thousands of human beings can be slaughtered by a single
action and where large swaths of urban landscape can be leveled in
an instant. If the past was a time of danger for this country, it remains
no more than prologue for the threats the future holds. For courts to
resist this political attempt to meet these rising dangers risks making
the judiciary the most dangerous branch.
I say this not as an exhortation to panic or fear, but rather as a call
for prudence. The advance and democratization of technology proceeds apace, and our legal system must show some recognition of
these changing circumstances. In other words, law must reflect the
actual nature of modern warfare. By placing so much emphasis on
quaint and outmoded notions of enemy states and demarcated foreign
battlefields, the plurality (the opinion authored by Judge Motz) and
concurrence (the opinion authored by Judge Traxler) misperceive the
nature of our present danger, and, in doing so, miss the opportunity
presented by al-Marris case to develop a framework for dealing with
new dangers in our future. There is a way to respect both our commitment to liberty and the need for security without which liberty cannot
flourish. But it is not the way my fine colleagues have chosen, and
I must respectfully dissent from the reversal of the judgment.1
1
Given the nature of the courts judgment in this case, the matter of
how to designate my colleagues views has proven somewhat difficult.
This is largely because the so-called Screws rule, adopted by Judge Motz
and those who join her opinion, has traditionally been invoked by a smaller group of judges (usually one or two) joining the judgment of a larger
129
The essence of the pluralitys view is that law deprives this country
of those means of adjustment that the political branches deem essential to success in the struggle against those who launched and prepare
again to launch attacks against America. I am happy indeed that the
plurality did not prevail in its view that the AUMF fails to authorize
the military detention at issue in this case. That the judiciary should
embrace a sense of rigidity and complacency not elsewhere reflected
in our democratic process seems both an expansion of judicial warrant
and a course of error that may lead to tragic results and lasting regrets.
By ignoring the AUMFs plain language and patent meaning, the
plurality comes all too close to holding that no person lawfully in the
United States may be seized as an enemy combatant and subjected to
military detention, and certainly not subjected to detention of any
appreciable length. That to me is the plain import of the pluralitys
view, and its interpretation of the AUMF not only undermines Congresss intent but also suggests that the "serious constitutional questions" underlying the case compel a ruling in al-Marris favor. Ante
at 20.
Similarly, the concurrence, by forsaking the burden-shifting
scheme established in Hamdi and imposing more rigorous procedural
protections at the very outset of enemy combatant proceedings,
implies that something more akin to a criminal trial is in order. In so
doing, the concurrence accomplishes through constitutional interpretation much of what the plurality attempts to accomplish through statnumber, rather than vice versa. See Screws v. United States, 325 U.S. 91,
113 (1945) (Rutledge, J., concurring in the result); see also, e.g., Hamdi
v. Rumsfeld, 542 U.S. 507, 553 (2004) (Souter, J., with Ginsburg, J., concurring in part, dissenting in part, and concurring in the judgment); US
Airways, Inc. v. Barnett, 535 U.S. 391, 408 (2002) (OConnor, J., concurring); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607-08 (1999)
(Stevens, J., concurring in part and concurring in the judgment). Despite
the "reverse-Screws" wrinkle of this case, I refer to the opinion authored
by Judge Motz as the plurality because her opinion enjoys the largest
number of judges in support of the ultimate judgment. Likewise, I refer
to the opinion authored by Judge Traxler as the concurrence, inasmuch
as he has not joined the plurality. For the sake of clarity, I refer to the
other opinions filed in this case by the name of the author.
130
utory construction: an erosion of the elected branches ability to

pursue the current conflict in accordance with the laws of war.
The plurality and the concurrence thus both overlook the fact that
our Constitution is a feat of architecture as well as a charter of cherished rights. To overlook the constitutional allocation of authority to
Congress and the President in this case is to replace the Framers
design with our own precarious arrangements.
Moreover, with their judgment, the plurality and the concurrence
abandon any recognized understanding of procedural due process and
leave this case totally up in the air. The touchstone of procedural due
process has always been accuracy. The plurality and concurrence,
however, now mandate the imposition of some uncertain quantum of
procedures despite the fact that al-Marri, although represented by
counsel and given every opportunity by the trial court to do so, did
not cast the slightest doubt on any of the governments extensive declarations. Additional procedures may of course be required when the
accuracy of the governments evidence is called into question, and the
burden on al-Marri in this regard is not high. Imposing additional process at the outset, however, completely untethered from any need
to ensure accuracy will lead to more graymail, more fishing expeditions, and more thrashing litigiousness, all without any corresponding benefit in terms of reliable determinations or practical effect.
Moreover, this novel procedural approach provides the district court
with precious little direction on remand. I simply have no idea what
constitutes "the most reliable available evidence," ante at 8, nor do I
know what procedures should be used to determine whether the governments evidence meets this standard. The district court will be similarly mystified.
The problem presented here is greater than al-Marris case and
even than 9/11. The sources of this nations vulnerability its long
borders, its multiple ports of entry, its densely-packed cities, the dispersions of lethal materials, the march of advancing technologies, and
the widening distribution of knowledge as to the means and implements of mass destruction long predated September 11th and will
long continue even as the events of that day recede in memory.
Some of the scenarios are discounted as farfetched, until suddenly
they are not. Nuclear devices capable of inflicting enormous casual-
131
ties can now fit inside a suitcase or a van. Congress can and has made
clear that the use of such a device by persons or groups associated
with the 9/11 attacks would be more akin to an act of war than to
ordinary crime. Regrettably, however, the plurality and, to a somewhat lesser extent, the concurrence regard these acts quite differently
as mere criminal offenses to be tried through the criminal justice
process or something that will become increasingly its equivalent.
This reluctance to allow Congress to distinguish between war and
crime will hinder the elected branches in their effort to tame the true
tragedy of modern times: the indiscriminate slaughter of innocent life.
The events of 9/11 have afforded us an opportunity to address these
non-chimerical concerns and to build a framework for this most dangerous future. Congress in the AUMF and the Supreme Court in
Hamdi provided us with building blocks for a set of post-9/11 legal
principles. By forsaking the evident intent of the AUMF, and departing from the Hamdi framework, however, the plurality and concurrence have missed this opportunity. It is for this reason too that I
dissent in this case.
This need for some legal framework is not just an opportunity. It
is our obligation. The military detention of American citizens or
aliens lawfully within this country is a huge step. It is a mistake to
take this step without asking where the journey leads. A failure to
locate enemy combatant detentions within a general or principled
framework will serve only to heighten concerns that open-ended
detentions of American citizens lie in the offing. A principled framework, by contrast, addresses the limits of executive authority. While
a minimalist method has much to commend it in many circumstances,
it has its drawbacks here. This is not an area where ad hoc adjudication provides either guidance or limits, and it leaves the most basic
values of our legal system liberty and security in limbo.
I thus have some points of difference with each of my good colleagues. I do not agree with the plurality, as I believe the AUMF does
authorize al-Marris detention. I do not agree with the concurrence or
Judge Gregory, as I believe that al-Marri received the process he was
due. I do not agree with the Chief Judge or Judge Niemeyer that we
can resolve a question of this order of magnitude namely the military detention of American citizens or lawful aliens in this country
132
without addressing the serious constitutional issues that attend such

a move. If I could approach this whole question in such a fashion, I
would surely do so. But the Supreme Courts recent decision in
Boumediene v. Bush, 553 U.S. ___ (2008), demonstrates that even
coordinated action by the democratic branches is subject to constitutional limits. Indeed, the scope of the executives detention authority
turns not only on "whether the AUMF authorizes," but also on
whether "the Constitution permits," military detention to take place.
Id. at 59.
The danger of ignoring this constitutional inquiry is that we would
proceed through increments and accretions to a system that features
contradictory court rulings on military detentions throughout our land,
gives no notice to Congress or the executive as to what the permissible boundaries of enemy combatant detentions might be, and, at
worst, ends up inflicting grave damage to the constitutional fabric at
the end that none of us intended at the start. Far better, it seems to me,
to at least start this journey with a map, lest this case of first impression become an aimless voyage.
The plurality derides this attempt to delineate a constitutional
framework as a policy-based exercise in "inventi[on]." Ante at 8; see
also ante at 20-21 n.9, 43-44. But the policymaking in this case
comes from those who would aggressively interfere with democratic
prerogatives in the context of armed struggles, not from those who
would interpret our foundational document with a proper respect for
separation of powers and a proper demonstration of judicial restraint.
The policymaking in this case comes from those who would so torture
the text of the AUMF as to render it inapplicable even to al Qaeda
members situated identically to those who perpetrated the 9/11
attacks. I certainly do not hold the position reflected in the judgment
that courts should counteract Congresss plain intention or construct
some set of unspecified procedures according to judicial designs. At
the same time, the judiciary plays a vital role in ensuring that enemy
combatant detentions are consistent with the constitutionally prescribed war powers and not a subterfuge for circumventing our cherished Bill of Rights. I make no apologies for regarding the restraint
of the third branch as the starting point for all my inquiries in matters
pertaining to the conduct of war. I make no apologies either for recog-
133
nizing that there are constitutional limits on the military detention

power and for trying to determine what they are.
I shall thus attempt to provide some framework as to why alMarris detention is lawful and why, at the same time, the military
detention authority is anything but open-ended. My own opinion proceeds as follows. In Section I, I discuss why the AUMF applies on
its own terms to justify al-Marris detention. In Section II, I address
the basic premise of al-Marris argument that formal criminal
charges are required in order for the government to detain him. In
Section III, I address the serious constitutional questions that arise
from, as well as the limits that apply to, the military detention of a
citizen or lawful alien apprehended on American soil. In Section IV,
I address my concurring colleagues argument that the procedures
afforded al-Marri were constitutionally deficient. Finally, in Section
V, I discuss, in a larger sense, why the dismissal of al-Marris petition
can be squared with Americas cherished legal heritage.
To reverse this judgment because al-Marri was not captured on a
foreign battlefield or foreign soil is akin to a judicial declaration that
Congress and the executive may fight only the last war. This is
wrong. Access to the courts is 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 freedom, too.
I thus have no doubt that this detention is lawful. This detention
has been authorized by Congress. This detention is, and remains, subject to judicial oversight. This detention is a direct outgrowth and
response to massive attacks on the U.S. homeland. This detention is
consistent with Supreme Court precedent. This detention is in accordance with the laws of war. And this detention should be sustained.
I. THE AUMF AUTHORIZES THE DETENTION OF ALMARRI.
On September 18, 2001, one week after the most devastating attack
on the U.S. homeland in its history, Congress passed the Authorization for Use of Military Force ("AUMF"). The plurality recognizes
as it must that the AUMF authorizes the President to order the military detention of enemy combatants. See ante at 23-24 (Motz, J., con-
134
curring in the judgment). The plurality also notes that the primary
issue before us in this case is whether the petitioner, Ali Saleh Kahlah
al-Marri, is an enemy combatant within the meaning of the AUMF.
See ante at 12-13.
Despite spending much of its opinion interpreting the AUMF, however, the plurality barely discusses the AUMFs purpose, so plainly
reflected in its text: to hold those responsible for the September 11th
attacks accountable, and to prevent similar acts of terrorism from ever
happening again. This omission is telling. By failing to appreciate the
entire reason for the AUMF, the plurality is able to produce an incredible result: it interprets the AUMF so that even the 9/11 attackers
themselves would not be considered enemy combatants under it.
The pluralitys conclusion is a paradox without parallel. A resolution designed to address a problem is read to leave the problem unaddressed. The reach of a resolution responding to hijacked domestic
flights aimed at domestic targets and designed to inflict massive
domestic casualties is confined to a foreign battlefield. In holding that
the 9/11 hijackers would not be enemy combatants within the meaning of the foremost congressional response to 9/11, the plurality
denies the legislative branch the ability to mean what it says. It
deprives not only this congressional action of effect, but, in essence,
grants the judiciary an expanding veto over future congressional
efforts to protect this country.
To appreciate fully the error of the pluralitys ways, one need consider nothing more than the AUMF itself, which, in the more than six
years since its passage, has never been amended, much less rescinded:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons
AUMF, Pub. L. No. 107-40, 115 Stat. 224 (2001).
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The AUMF grants the President broad power: the power to use "all
necessary and appropriate force" to prevent "any" future acts of terrorism by those who perpetrated the September 11th attacks and their
affiliates. The Presidents power is not limited temporally: he may use
force against those who "planned" 9/11 as well as those who prepare
"future" acts of terrorism. Nor is the Presidents power limited geographically: the preamble of the AUMF specifically directs the President "to protect United States citizens both at home and abroad." Id.
(emphasis added). Finally, recognizing the new security risks presented by global terrorist organizations, such as al Qaeda, and global
terrorists, such as Osama bin Laden, the AUMF authorizes the President to use force against not only the "nations," but also the "organizations" and "persons," that were responsible for the September 11th
attacks.
Al-Marri does not so much as dispute the allegations against him,
which we are obliged therefore to credit for purposes of this case. See
ante at 6, 12. According to the Rapp Declaration, in which the government details the evidence supporting the detention of al-Marri as
an enemy combatant, al-Marri was closely associated with al Qaeda,
the terrorist organization that perpetrated the September 11th attacks.
Al-Marri attended an al Qaeda terrorist training camp in Afghanistan
for fifteen to nineteen months, and subsequently cultivated relationships with the most senior members of the al Qaeda organization: he
met personally with Osama bin Laden and volunteered to martyr himself for the al Qaeda cause; he entered the United States as a sleeper
agent under the direction of Khalid Shaykh Muhammed, the mastermind of the 9/11 attacks; and he received substantial funding for his
mission from Mustafa Ahmed al-Hawsawi, the financial facilitator of
9/11. Id. at 11.
And that is not all. Al-Marri was actively planning terrorist attacks
at the time of his arrest in the United States. Before he was apprehended, al-Marri had been gathering technical information about poisonous chemicals on his laptop, and was in communication with both
Muhammed and al-Hawsawi. Id. Moreover, he had undertaken efforts
to obtain false identification, credit cards, and banking information,
including stolen credit card numbers. Id.
It should be clear that al-Marri is the paradigm of an enemy combatant under any reasonable interpretation of the AUMF. When Con-
136
gress directed the President to "use all necessary" force including

the power of military detention "to prevent any future" attacks by
those "organizations" responsible for 9/11, it must certainly have targeted al Qaeda "sleeper agents" planning similar attacks in the United
States. To say that Congress did not have persons such as al-Marri in
mind is to say that Congress had very little 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 of course. Judges take and treat with respect what Congress
gives them. I do not pretend that there are not hard cases under the
AUMF: for example, if the President were to detain an alleged terrorist with more tenuous links to al Qaeda or more ambiguous intentions
than al-Marri has. There are indeed difficult questions as to the reach
of the authority Congress has conferred upon the President. But the
possibility of hard cases does not hide the fact that this case fits
squarely within the bounds of the AUMF. Al-Marri was indisputably
a member of al Qaeda, and he was indisputably planning terrorist
attacks to kill American citizens and destroy American property. If alMarri is not an "enemy combatant" under the AUMF, then who is?
The pluralitys view also rests on four faulty premises. First, the
plurality erroneously asserts that al-Marri cannot be considered an
enemy combatant because the government has "never alleged that he
is a member of any nations military [or] has fought alongside any
nations armed forces." Ante at 6 (emphasis added). The plurality
bases this "nation" affiliation requirement on a misguided reading of
the Supreme Courts opinion in Hamdi v. Rumsfeld, 542 U.S. 507
(2004) (plurality op.), and our circuits opinion in Padilla v. Hanft,
423 F.3d 386 (4th Cir. 2005), which relied heavily on Hamdi.
According to the plurality, a relationship with the Taliban, "the de
facto government of Afghanistan at the time," ante at 23, was critical
to each courts ultimate holding that the petitioner could be classified
as an enemy combatant. Thus, the plurality contends, absent such an
affiliation with an enemy nation, an individual cannot qualify as an
enemy combatant. Ante at 25-26, 27 (asserting that enemy combatant
status rests on an individuals "affiliation with the military arm of an
enemy nation").
The pluralitys "nation" affiliation requirement finds no basis in the
text of the AUMF, misreads the opinions in Hamdi and Padilla, and
137
fails to recognize the backdrop against which the AUMF was passed.
As noted earlier, the AUMF states quite explicitly that "the President
is authorized to use all necessary and appropriate force against those
nations, organizations, or persons" responsible for the September 11
attacks. AUMF, 115 Stat. 224 (emphasis added). Thus, the pluralitys
notion that enemy combatants under the AUMF must be affiliated
with a "nation" at war with the United States flatly contradicts the
AUMFs text.
Furthermore, the plurality erroneously limits the scope of the holdings in Hamdi, and therefore Padilla. According to the plurality,
under these two cases, "affiliation with the military arm of an enemy
nation" is a necessary condition for being labeled an enemy combatant under the AUMF. Ante at 26 (emphasis added).
Of course, the petitioners in both Hamdi and Padilla were at one
time affiliated with Taliban units in Afghanistan. See ante at 23, 24.
However, neither the Hamdi Court nor the Padilla court made this
fact the lynchpin of its decision. For instance, in Hamdi, the Supreme
Court made very clear that its decision only answered "the narrow
question" of whether the detainee, based on the facts alleged, could
be classified as an enemy combatant. Hamdi, 542 U.S. at 516. The
Court never indicated that those facts circumscribed the outer bounds
of the enemy combatant category. Id. at 517.
In fact, Hamdi specifically noted that the "permissible bounds of
the [enemy combatant] category will be defined by the lower courts
as subsequent cases are presented to them." Id. at 522 n.1. If the facts
alleged in Hamdi were, as the plurality suggests, binding requirements for enemy combatant status, then the Courts observation and
directive to lower courts would have been unnecessary. Thus, any
claim that Hamdi sets forth the exclusive requirements of the enemy
combatant category has a problem: it cannot be reconciled with the
Courts own statements.
Finally, the pluralitys "nation" affiliation requirement ignores the
context in which Congress passed the AUMF. When interpreting legislation that authorizes the use of force against both "nations" and "organizations," I struggle to find any meaningful distinction between
affiliating with a so-called "de facto government," like the Taliban,
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and affiliating with a terrorist organization like al Qaeda. This is particularly 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 treasury and a consistent
source of revenue; it has a permanent civil service; it has an
intelligence collection and analysis cadre; it even runs a
rudimentary welfare program for its fighters, and their relatives and associates. It has a recognizable hierarchy of officials; it makes alliances with other states; it promulgates
laws, which it enforces ruthlessly; it declares wars.
Philip Bobbit, The Shield of Achilles 820 (2002).
The second faulty premise of the plurality is the erroneous claim
that al-Marri does not qualify as an enemy combatant because he was
not allegedly "seized on, near, or having escaped from a battlefield on
which the armed forces of the United States or its allies were engaged
in combat." Ante at 11 (emphasis added). This purported "battlefield"
requirement is also based on the pluralitys mistaken interpretation of
Hamdi and Padilla. See ante at 23 (noting that Hamdi was captured
on a battlefield); id. at 24-25 (noting that Padilla had been on a battlefield).
Although I will discuss the relevance of the battlefield in more
detail later, it suffices for now to say that the pluralitys "battlefield"
requirement also does not comport with the text of the AUMF, relevant case law, or the context in which the AUMF was enacted. It is
every bit as much a gloss on the AUMF as the "nation" affiliation
requirement is and every bit as misplaced.
To begin, the text of the AUMF is in no way restricted to those persons who have fought or seen action on a foreign battlefield. As mentioned earlier, the AUMF contains no such location limitation and
specifically states that its animating purpose is to "protect United
States citizens both at home and abroad." AUMF, 115 Stat. 224.
While the plurality attempts to support its conclusion that the AUMF
was not meant to operate "right here in the United States" with statements made by members of Congress more than four years after the
passage of the AUMF, see ante at 40, I would hope the judicial
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branch would respectfully bypass post-hoc commentary by distinguished members of the legislative branch intended either to expand
or restrict or otherwise reinterpret what Congress plainly expressed
and just as plainly stands by.
Next, although Hamdi and Padilla had seen action on a battlefield,
such a factor represents a potentially sufficient condition, not a necessary one, for qualifying as an enemy combatant under those cases. An
absolute requirement that someone must have been on a battlefield in
order to receive enemy combatant status would run headlong into Ex
parte Quirin, 317 U.S. 1 (1942). In that case, the Nazi saboteurs were
not captured on or near a battlefield, but rather in the United States,
after surreptitiously entering "from enemy territory into our own." Id.
at 35. The Court held that even though they had not "entered the theatre or zone of active military operations," i.e. the battlefield, the saboteurs were properly detained as enemy combatants. Id. at 38.
Finally, the notion that enemy combatants can only be found on the
battlefield is completely antithetical to Congresss purpose for passing
the AUMF. The September 11th hijackers targeted civilians on American soil, not a foreign battlefield. The thousands slaughtered in the
Twin Towers, the Pentagon, and aboard United Flight 93 were not on
any battlefield. To condition the enemy combatant category on battlefield participation is simply wrong.
Third, the plurality appears to be influenced by the fact that the
length of the current struggle "has no bounds" and thus the current
detention may be an "indefinite" one. See ante at 62. I do appreciate
the pluralitys concern in this regard. No formal armistice with al
Qaeda or its offshoots is in the offing, and while 9/11 marked the
beginning of widespread awareness that we were at war, no similarly
defining event is likely to mark the end. But as much as I respect the
pluralitys concern on this point, I cannot ultimately accept it, because
it is tantamount to an assertion that Congress should have repealed the
AUMF or limited its duration, which Congress has not done.
There is in fact nothing in the text of the AUMF that limits the
duration of its operational force it applies both retrospectively to
bring those responsible for 9/11 to justice and prospectively to prevent future attacks. And as noted, Congress has not repealed the
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AUMF or modified its language in any way. I am not prepared to second guess its judgment. There is evidence that al Qaeda, which has
announced an intent to launch further attacks upon America, is not a
degraded force but a reconstituted one, operating, among other places,
in the Waziristan regions of northwest Pakistan. See, e.g., Scott
Shane, Same People, Same Threat, N.Y. Times, July 18, 2007, at A1.
Whatever the case may be, it is surely within the ambit of constitutional judgment for Congress to conclude that the AUMF should continue in effect and that an ongoing threat must be met with an ongoing
resolution.
Until the AUMF undergoes some change from the body that
enacted it, the courts must honor its express intent. To approach this
war on terror otherwise would allow separation of powers in this
long-protracted struggle to fall victim to a short judicial attention
span.
The pluralitys fourth faulty assumption is that Ex parte Milligan,
71 U.S. (4 Wall.) 2 (1866), precludes a determination that al-Marri is
an enemy combatant under the AUMF. The plurality contends that
Milligans conduct "mirror[s] the Governments allegations against
al-Marri." Ante at 37. But this overlooks the basic difference between
the two cases: Congress never authorized the use of military force
against the Sons of Liberty, Milligans organization, see Milligan, 71
U.S. at 6, but Congress has authorized the use of force against al
Qaeda, al-Marris organization, see AUMF, 115 Stat. 224. Milligans
constitutional force is felt only after it has been determined the individual may not be classified as an enemy combatant. See Quirin, 317
U.S. at 45. Because al-Marri plainly qualifies as an enemy combatant
under the AUMF, the principles of Milligan do not preclude detention
here.
Similarly, al-Marri argues that the Patriot Acts detention provisions supersede, and therefore abrogate, the Presidents authority
under the AUMF to detain enemy combatants. See Brief of Appellants
at 14-15. The plurality wisely rejects this contention, recognizing that
"the Patriot Act does not eliminate the statutory authority provided
the President in the AUMF to detain individuals who fit within the
legal category of enemy combatant." Ante at 42 (internal quotation
marks omitted).
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Al-Marris argument properly fails because the AUMF and Patriot

Act have different spheres of operation. While the AUMF represents
a specific response to the 9/11 attacks, authorizing military force
against those responsible for the attacks, the Patriot Act has a different point of emphasis: providing law enforcement with additional
tools and tactics such as an increased ability to access records, regulate financial transactions, and perform surveillance designed to
prevent terrorism generally, regardless of whether the suspect was
associated with 9/11. See Pub. L. No. 107-56, 115 Stat. 272 (2001).
Thus, to the extent that there is even a hint of potential conflict, the
AUMF undoubtedly controls in the present situation as it alone specifically addresses military detention in response to the 9/11 attacks.
Therefore, like Milligan, the provisions of the Patriot Act are relevant
only after it has been determined an individual does not constitute an
enemy combatant not before.
The particular errors in applying the AUMF lead to one transcendent flaw. By failing to give proper effect to the AUMF, the plurality
has simply assumed the authority belonging to the legislative branch.
The plurality states that Congress has not issued the "particularly
clear statement . . . necessary to authorize" al-Marris detention, ante
at 39, but Congress has expressed its intentions quite plainly and
emphatically, and to require more is to simply move the goal posts on
the legislature. Courts cannot, under the guise of interpretation,
require Congress to do what Congress has already done. To do otherwise vitiates the long accepted approach of Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). See Samuel
Issacharoff & Richard H. Pildes, Between Civil Libertarianism and
Executive Unilateralism: An Institutional Process Approach to Rights
During Wartime, 5 Theoretical Inquiries L. 1, 5-6 (2004) (explaining
that the Court has long followed the Youngstown approach when
faced with questions concerning the scope of the executives wartime
authority); Cass R. Sunstein, Minimalism at War, 2004 Sup. Ct. Rev.
47, 83 (same). Under that rubric, the legality of executive action is
fortified by congressional approval: "[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority
is at its maximum," while, conversely, the Presidents power is at its
"lowest ebb" when he "takes measures incompatible with the
expressed or implied will of Congress." Youngstown, 343 U.S. at 63537 (Jackson, J., concurring).
142
With its decision in this case, the plurality, in the guise of interpreting the AUMF, has stood the Jackson approach on its head. In doing
so, it has ushered in a novel constitutional arrangement: now, rather
than the judiciary respecting the lead of the elected branches in the
most consequential of all democratic decisions those of life and
death during periods of war the elected branches are told they must
once more take steps they have already taken to protect the nation.
One searches Youngstown for the slightest hint of imprimatur for
this new arrangement but it is nowhere to be found. In Youngstown, the Court declared President Trumans seizure of the nations
steel mills unconstitutional, despite the Presidents contention that the
seizure was a necessary wartime measure. Id. at 583 (Opinion of the
Court). While this demonstrates that the judiciary has a role, even
during wartime, in making sure that the executive does not exceed its
authority, one must not forget the force behind the Supreme Courts
decision: the fact that, as even President Truman "conceded," his
actions were not taken pursuant to a "congressional authorization."
Id. at 638 (Jackson, J., concurring); see also id. at 585 (Opinion of the
Court) ("Indeed, we do not understand the Government to rely on
statutory authorization for [the] seizure."). Youngstown has thus
always stood for the proposition that the judiciary serves as an important check on the executives power when it acts without legislative
approval.
What was absent when President Truman seized the nations steel
mills is present here: clear and explicit legislative approval of the
executives actions. By ignoring the plain text of the AUMF, the plurality ignores the teachings of Youngstown and negates the synchronized action of the President and Congress. It does this despite the
fact that "it is difficult to conceive of an area of governmental activity
in which the courts have less competence" than military affairs. Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see also Benjamin Wittes, Law
and the Long War 103-04 (2008) (noting that "the judiciarys capacity
to design the kind of creative policies America needs in this conflict
is exceptionally limited"); Mark Tushnet, Controlling Executive
Power in the War on Terrorism, 118 Harv. L. Rev. 2673, 2679 (2005)
(arguing that federal courts lack the capabilities necessary to determine "whether some particular response to a threat to national security imposes unjustifiable restrictions on individual liberty or is an
143
unwise allocation of decisionmaking power"). Thus, the pluralitys

approach is not only constitutionally problematic and patently undemocratic. It is dangerously unsound.
II. THE CRIMINAL JUSTICE SYSTEM IS NOT THE
ONLY LAWFUL MEANS OF ADDRESSING THE
TERRORIST THREAT.
Notwithstanding Congresss explicit mandate authorizing the executive to detain all persons affiliated with the "organizations" that
"planned" the 9/11 attacks, the plurality reaches a strikingly different
conclusion: the Government cannot "subject them to indefinite military detention." Ante at 7. The plurality holds that it is unlawful for
the President to detain al-Marri without criminal process, and finds
that the President must subject al-Marri to formal "charge[s], trial,
and punishment in a civilian court." Ante at 33. While the plurality
seeks to pose the dispute as a mere matter of statutory interpretation,
it goes well beyond that. By brushing aside the AUMFs plain text
and rejecting accepted notions of separation of powers, the plurality
asserts its unabashed preference for using the criminal justice system
in all instances involving suspected terrorists similarly situated to alMarri.
Al-Marri and several amici express every bit as forcefully their
preference for criminal prosecution in all instances. Al-Marri argues
that he cannot be detained "without charge in civilian court" and that
"[a]ll persons in the United States have the right to be charged and
tried in a criminal proceeding for suspected wrongdoing." Brief of
Appellants at 15, 26. Likewise, several amici contend that the executives only option for detaining al-Marri is to bring formal charges
through the criminal justice system. See, e.g., Brief for U.S. Criminal
Scholars and Historians as Amici Curiae Supporting Appellants at 5
(arguing that "to the extent the government believes [al-Marri] acted
against the welfare of the United States, it should proceed with criminal charges within the civilian justice system"); Brief for Center for
National Security Studies et al. as Amici Curiae Supporting Appellants at 14-15.
In the alternative, al-Marri seeks, if not a criminal trial in name,
then what is essentially a criminal trial in practice. Even if he may be
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detained by military authorities without a criminal charge, al-Marri

claims that he is entitled to processes that are part and parcel of a
criminal prosecution, such as the right to discovery and "the right to
confront and cross-examine witnesses in an evidentiary hearing."
Brief of Appellants at 11; see also Reply Brief of Appellants at 31-32;
Brief for Professors of Evidence and Procedure as Amici Curiae Supporting Appellants at 12-26 (asserting that the Federal Rules of Evidence and the Due Process Clause render the Rapp Declaration
inadmissible). These processes far exceed those suggested by the
Supreme Court in Hamdi. See Hamdi, 542 U.S. at 533-34 (noting that
in "enemy-combatant proceedings," hearsay "may need to be accepted
as the most reliable available evidence from the Government" and a
"burden-shifting scheme" that includes a rebuttable "presumption in
favor of the Governments evidence" may be warranted).
Based on these various assertions, the only reasonable inference I
can draw is that the plurality, as well as petitioner and his amici supporters, endorse a ringing preference for the criminal justice system
to the exclusion of any other option for dealing with suspected al
Qaeda associates apprehended on American soil. By defining the
scope of the AUMF and the enemy combatant category so narrowly,
it is hard to find anything other than a desire by the plurality to establish a requirement of criminal prosecution in almost every case.2
While I would be the first to agree that the criminal justice system
retains an important place in our constitutional system when handling
the terrorist threat, the notion that it is the only manner of dealing with
2
In his concurrence, Judge Gregory expresses a similar preference for

criminal prosecution. He suggests that because the executive chose to
criminally prosecute several individuals who might potentially have been
detained under the AUMF e.g., Moussaoui, Padilla, and Abu Ali
it must provide al-Marri with procedures that at least resemble a criminal
trial. Ante at 104-106, 110 n.5. This argument, of course, overlooks the
executives discretion to choose between criminal prosecution and military detention in those instances where Congress has deemed the latter
appropriate. The fact that the executive has judiciously chosen to forego
using its detention power under the AUMF in some cases where it is
available does not deprive it of the power in other instances where it is
necessary. The question before the courts in either circumstance is
whether the executive action is a lawful one.
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such threats, or is constitutionally compelled in all cases involving

apprehensions on American soil, is simply wrong. The democratic
branches cannot be compelled to wage a struggle with so many of the
attributes of war through the exclusive medium of the criminal justice
system. Nothing in our constitution requires the elected branches to
treat terrorism invariably as a criminal offense rather than as an act
of belligerency. Indeed, such a constitutional approach would burden
the Congress and the Executive to a greater extent than the war powers will allow. As discussed below, the prosecution of terrorists associated with organizations such as al Qaeda often presents intractable
evidentiary and logistical difficulties. These difficulties underscore
the fact that the judiciary has no right in the name of constitutional
law to compel criminal prosecution of terrorist suspects in all
instances. By forcing a particular approach over the wishes of Congress as expressed in the AUMF, the plurality undercuts the role of
the legislative branch in allocating to the executive options to deal
with the most dangerous al Qaeda members in our midst.
One wishes in vain for the plurality to evince some glint of recognition that two models exist to manage the threat presented by suspected terrorists: prosecuting them through the criminal justice system
or detaining them as enemy combatants. Neither approach alone will
achieve the appropriate balance between individual liberty and
national security. As such, judicial directives that the AUMF or the
Constitution itself mandate reliance on the single model of criminal
prosecution in all cases involving terrorism suspects is neither satisfactory nor tenable. Indeed, by formally routing all terrorist suspects
apprehended in this country through the criminal justice system, the
plurality has succeeded in impairing the warmaking powers of Article
I and Article II. The warmaking powers conferred upon Congress and
the Executive must likewise confer latitude in prosecuting or detaining those who wage war; else they are empty grants, bestowing the
power without its necessary incidents. See Hamdi, 542 U.S. at 518.
A.
I respect the aspiration that criminal prosecutions be the preferred
way of addressing every threat that awaits the nation. But, as the
Court and constitutional tradition have long recognized, this is not an
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ideal world, and not every threat to community safety can be handled
by the criminal justice system.
The Framers attached profound importance to just criminal trials,
and the Bill of Rights reflects their commitment. The Fourth, Fifth,
Sixth, and Eighth Amendments grant all persons a number of protections against the coercive power of the government in the context of
a criminal investigation and prosecution. The importance of these
constitutional guarantees is consistent with a preference for using the
criminal justice system to try and punish suspects.
This preference, however, is by no means absolute: the Constitution has never laid down a "categorical imperative" that the criminal
justice system be the sole mode of apprehending suspected wrongdoers. United States v. Salerno, 481 U.S. 739, 748 (1987). For instance,
pragmatic concerns of "community safety" may, in some circumstances, allow the executive to deprive an individual of liberty without a traditional criminal proceeding. See id. As the plurality properly
recognizes, see ante at 15-16, this is true in contexts as diverse as the
detention of dangerous suspects before a criminal trial, see Salerno,
481 U.S. at 755 (adults); Schall v. Martin, 467 U.S. 253 (1984) (juveniles); the civil commitment of the mentally ill, see Addington v.
Texas, 441 U.S. 418 (1979); and the confinement of recidivist sex
offenders unable to control their behavior, see Kansas v. Hendricks,
521 U.S. 346 (1997).
As the plurality acknowledges, each of the cases noted above constitutionally allows "detention based on process less than that attendant to a criminal conviction." Ante at 15. Although the plurality
mentions these examples, see id., it fails to recognize their import. In
all of these cases, the Supreme Court acknowledged two key facts:
first, a failure to act may leave unaddressed a serious threat to community safety and, second, special circumstances present significant
barriers to criminal prosecution. As a result, the Court has consistently held that, in certain limited situations, the executive may use
alternatives such as military detention to formal criminal
charges so long as it does so pursuant to a proper legislative authorization. The plurality acknowledges this point, ante at 16 & n.6 (citing
cases), but, at the same time, refuses to recognize that the AUMF is
just such an authorization. By denying Congresss clear intent in this
147
manner, the plurality essentially mandates that the criminal justice

system is the only tool for pursuing a struggle that, in Congresss
view, bears many of the salient characteristics of a modern war. This
simply cannot be the case.
Indeed, the Courts recognition of alternatives to criminal prosecution is not thought to compromise our constitutional values, and the
plurality is wrong for suggesting that the present detention does just
that. Though I recognize the detention at issue here is military rather
than civil in nature, the relevant analysis is no different. This, at least,
was the Supreme Courts view in Boumediene, when it said that
enemy combatant "proceedings need not resemble a criminal trial."
Boumediene, slip op. at 54. In fact, if anything, enemy combatants,
such as al-Marri, present an even greater need for an alternative to the
criminal justice system than do the categories of persons at issue in
Salerno and Hendricks.
It is unquestionable that a failure to incapacitate individuals such
as al-Marri may have dramatic consequences. As the plurality rightly
notes, the law of war permits enemy combatants to be detained until
the end of hostilities, in order to prevent their return to battle. See ante
at 23 (quoting Hamdi, 542 U.S. at 519). The same concern is present
with those responsible for the 9/11 attacks. Indeed, there is evidence
that suspected combatants released by the United States have subsequently been found fighting against American troops in Afghanistan.
See John Mintz, Released Detainees Rejoining the Fight, Wash. Post,
Oct. 22, 2004, at A1. Moreover, the risks of failing to restrain an
enemy combatant are even more pronounced when the combatant is
a suspected terrorist like al-Marri. Rather than return to a foreign battlefield, al-Marri, upon his release, may well resume his efforts to
launch a catastrophic attack against American 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 when dealing with terrorism "may turn out to be
disastrous rather than merely harmful").
B.
There exists not only the obvious need to immobilize enemy combatants, particularly suspected terrorists; there are also often serious
148
barriers to their criminal prosecution. To begin, the arrest of terror

suspects will sometimes necessarily be based on evidence that does
not meet the constitutional and statutory requirements of a traditional
criminal proceeding. The "fog of war" creates confusion, and, in
active combat zones such as Afghanistan and Iraq, it is often difficult
to respect the evidentiary standards, such as an unbroken chain of custody, that are the hallmarks of criminal trials. See Ruth Wedgwood,
Al Qaeda, Terrorism, and Military Commissions, 96 Am. J. Intl L.
328, 330-31 (2002). In addition, it will often be implausible to allow
a terror suspect to confront the witnesses against him because of the
difficulties in having American combat personnel leave the front lines
to testify. See, e.g., Hamdi, 542 U.S. at 531-32.
While the plurality implicitly recognizes, as it must under Hamdi,
that such evidentiary problems support the detention of enemy combatants who have fought on a battlefield, it inexplicably limits that
detention to those who have battlefield experience.3 In reaching this
conclusion, the plurality fails to realize that some of the significant
difficulties associated with criminal prosecution are equally present
when a suspected terrorist has never been on a foreign battlefield.
Indeed, these obstacles are present both before and during trial.
For instance, pretrial protections afforded criminal defendants,
such as a right to a speedy trial and the immediate assistance of counsel, may hinder the governments need to gather information that
could save hundreds, if not thousands, of lives. While all agree that
"indefinite detention for the purpose of interrogation" is not allowed,
Hamdi, 542 U.S. at 521, and torture must not be tolerated under any
circumstance, this does not negate the fact that terror suspects are
likely the "best source of information" on how to prevent future terrorist attacks. See William J. Stuntz, Local Policing After the Terror,
111 Yale L.J. 2137, 2162 (2002). Obviously, this information will
often be accessible only after interrogation. See id. at 2161-62. And
interrogation, particularly effective non-torturesome interrogation,
3
The plurality notes that in Hamdi I made the suggestion that domestic
detentions and detentions of enemy combatants on foreign battlefields
present different sets of problems. See ante at 29 n.15 . I agree with this,
and I have approached the issue in this case with these differences in
mind.
149
typically takes time and may necessitate "[h]olding a terrorist suspect

incommunicado." See Richard A. Posner, Not a Suicide Pact: The
Constitution in a Time of National Emergency 63 (2006). Thus, even
if the government has no plans to interrogate a terror suspect indefinitely, the criminal justice system may impede the ability to gather
critical information, even in the short term, because of a criminal suspects pretrial rights.
The problems presented by the criminal prosecution of terrorists
are even more pronounced at trial. Of course, there is a strong argument for bringing all suspected terrorists to trial: a trial conducted
pursuant to the open and public requirements of the criminal justice
system provides a showcase of American values and demonstrates our
commitment to fairness for even the most pernicious members of
society. See Michael German, Trying Enemy Combatants in Civilian
Courts, 75 Geo. Wash. L. Rev. 1421, 1426 (2007). But while the benefits of a criminal trial may carry the day in most instances, I do not
believe that the argument is so one-sided as to rule out the ability of
Congress to adopt other approaches. This is because the public prosecution of a suspected terrorist entails several serious problems.
First, while a showcase of American values, an open and public
criminal trial may also serve as a platform for suspected terrorists.
Terror suspects may use the bully pulpit of a criminal trial in an
attempt to recruit others to their cause. Likewise, terror suspects may
take advantage of the opportunity to interact with others during trial
to pass critical intelligence to their allies. For instance, before his
appointment as Attorney General, former federal Judge Michael B.
Mukasey recounted the story of how, "in the course of prosecuting
Omar Abdel Rahman (the so-called blind sheik) and others for their
role in the 1993 World Trade Center bombing and other crimes, the
government was compelled . . . to turn over a list of unindicted coconspirators to the defendants." Michael B. Mukasey, Jose Padilla
Makes Bad Law, Wall St. J., Aug. 22, 2007, at A15. One of those coconspirators, it turns out, was Osama bin Laden. Within ten days, a
copy of the list was in bin Ladens hands, "letting him know that his
connection to that case had been discovered." Id.
Second, and relatedly, the prosecution of some terrorists could
present security concerns of a different sort: witnesses and jurors may
150
be subjected to threats of violence or become the targets of attack.

The willingness of terrorist organizations to retaliate against civilian
participants in a terrorist trial cannot be overlooked. Al Qaeda has
already "carried out a mass killing abroad and left a written message
stating that the killing was in retaliation for the actions of [a] federal
trial judge." Wedgwood, supra, at 331. It is not unreasonable to
believe that such a ruthless organization could easily target the trial
participants themselves in the future. See 18 U.S.C. 1512 (2000)
(prohibiting tampering with a witness, victim, or informant).
To place jurors and witnesses in this sort of danger goes far beyond
the price that we fairly ask citizens to pay as responsible members of
a free society. For while it may of course be possible to protect jurors
and witnesses during trial, it likely will prove very difficult to fully
protect them after a trial has been concluded. See Wedgwood, supra,
at 331. The plurality, by insisting on criminal prosecution in nearly
all instances, fails to consider that a highly publicized international
terror trial may perfectly suit the interests of an organization, such as
al Qaeda, that thrives on propaganda and intimidation.
Third, and finally, the plurality also neglects to discuss another
serious concern: traditional criminal proceedings, especially public
trials, may not be responsive to the executives legitimate need to protect sensitive information. Neither the plurality nor anyone else suggests that suspected terrorists, such as al-Marri, are arrested pursuant
to anything other than intelligence of the most sensitive sort.
If such highly classified intelligence were disclosed to suspected
terrorists, the consequences would be devastating. Any further use of
that intelligence to either prevent future attacks or capture other suspected terrorists would be jeopardized, if not lost. Moreover, the loss
of secrecy would place the sources of sensitive information in danger
of reprisal. It is for these reasons that the Court has recognized that
the "[g]overnment has a compelling interest in protecting . . . the
secrecy of information important to our national security." 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 quotation marks
omitted).
However, the governments desire to protect such sensitive intelligence may conflict with a defendants confrontation and compulsory
151
process rights. By employing those rights, a terror suspect like alMarri may, in a tactic commonly referred to as "graymail," request
highly sensitive materials. See William H. Simon, The Ethics of Criminal Defense, 91 Mich. L. Rev. 1703, 1705 (1993). Such a request
leaves the government facing a Hobsons Choice. The government
can withdraw all or part of its case to protect its information, or proceed and surrender its sensitive intelligence and possibly its source.
And even if the government is able to suppress the defendants
request, defense counsel will be able to insinuate that the government
is hiding information that is favorable to the defendant.
I do not suggest these concerns should carry the day. But Congress
may certainly take them into account in deciding that the criminal justice system is not the sole permissible means of dealing with suspected terrorists. In light of these concerns, it seems apparent that the
criminal justice system may be ill-suited to deal with the unique problems presented by the prosecution of terrorists such as al-Marri. This,
at least, was the calculus of Congress in passing the AUMF. By ignoring these concerns and the clear text of the AUMF, however, the plurality sends the unmistakable message that the criminal justice system
is the unquestioned template for dealing with domestic terrorists,
regardless of the consequences.
C.
To be sure, corrective measures have been adopted by Congress to
alleviate many of the problems presented by the criminal prosecution
of suspected terrorists. For instance, the Classified Information Procedures Act was specifically designed to handle classified information
in the course of a criminal proceeding in a manner that balances the
legitimate need of national security against the legitimate need for the
assertion of basic rights. See Classified Information Procedures Act
("CIPA"), 18 U.S.C. app. III 1-16 (2000); see also United States
v. Fernandez, 913 F.2d 148 (4th Cir. 1990). Courts and parties have
become familiar with the customary tools employed in these cases,
such as in camera hearings, redactions, and placing information under
seal. In addition to such statutory measures, there is also case law
designed to balance a variety of pressing governmental interests with
a defendants criminal process rights. See, e.g., Maryland v. Craig,
497 U.S. 836, 853 (1990) (balancing the states "interest in the physi-
152
cal and psychological well-being of child abuse victims" against a

defendants desire for face-to-face confrontation); Roviaro v. United
States, 353 U.S. 53, 62 (1957) (holding that the determination of
whether an informants identity must be disclosed requires "balancing
the public interest in protecting the flow of information against the
individuals right to prepare his defense").
But if the pluralitys insistence on using the criminal justice system
to prosecute all domestic terrorists rests on the presence of corrective
measures such as CIPA, it must also recognize that these corrective
measures are not always available and, even when available, are not
able to address every difficulty. Despite CIPAs purpose, it is not a
panacea for the problems presented by the criminal prosecution of
some suspected terrorists. This is because CIPA does not pretend to
overcome all limitations on the judicial perspective. Because courts
understandably tend to be focused on the specific cases before them
(that is, after all, the nature of the judicial process), there is a risk that
they, understandably, will fail to appreciate the broader dangers associated with a potentially sensitive piece of information. See Sims, 471
U.S. at 176 (explaining that judges have "little or no background in
the delicate business of intelligence gathering" and that "[t]here is no
reason . . . to have great confidence in the ability of judges to make"
intelligence-related judgments correctly).
And there is no guarantee that even the most conscientious
attempts to protect classified information will always be effective. For
instance, during the criminal trial of Ramzi Yousef, "an apparently
innocuous bit of testimony in a public courtroom about delivery of a
cell phone battery was enough to tip off terrorists still at large that one
of their communication links had been compromised." Mukasey,
supra, at A15. Given al Qaedas ambitions, such mistakes have ramifications that last far beyond a specific trial mistakes Congress
sought to prevent in granting the President the authority to detain
enemy combatants under the AUMF, and mistakes the plurality fails
to acknowledge when suggesting that the criminal justice system is
the only model for dealing with al-Marri and those similarly situated.
In the long run, the pluralitys preference for making the criminal
justice process the exclusive vehicle for dealing with domestic terrorism may disserve nothing so much as the criminal justice system
153
itself. In adopting corrective measures to deal with the unique problems presented by terrorism prosecutions, courts may dilute the core
protections of the criminal justice system in other cases. In the past,
the "urgency involved in terrorism cases" has "led courts to accept
conduct by the government that might well have been disapproved in
other contexts." John Farmer, A Terror Threat in the Courts, N.Y.
Times, Jan. 13, 2008, 4, at 14. Furthermore, in order to effectively
prosecute terrorists, courts have been much more willing to extend the
"reach" of material witness and conspiracy statutes "to conduct that
has never before been punishable as a crime." Id.
It is naive to think that this sort of dilution of our procedural and
substantive criminal law will have no effect on the prosecution of
criminal suspects who are not terrorists. The government will seek to
take advantage of "terrorist precedents" in other cases. Thus, despite
the pluralitys protestations to the contrary, the best way to maximize
liberty for all may in fact be to minimize the instances when such
dilutions of criminal process are needed in the first place.
The unintended consequences of the pluralitys insistence on the
criminal justice model do not end with the dangers of dilution. In
pushing for the full panoply of criminal process for all suspected terrorists arrested in this country, the plurality risks pushing the executive, understandably intent on protecting the nation, in a more extreme
direction. The difference between the elaborate procedural protections
required by the plurality in the United States and those required elsewhere will give the executive branch the incentive to pursue more
extraterritorial detentions and more acts of rendition not because
these actions are necessarily dictated by the struggle against terror but
because of the disparities between refined procedural regimes at home
and more rudimentary ones abroad. It is far better for true liberty to
seek some balance between criminal prosecution and military detention for suspected terrorists in this country than to pursue the pluralitys one-sided path.
To sum up, while corrective measures such as CIPA are possible
and adaptations in criminal procedures have certainly been
undertaken, the fact remains that prosecutions of terrorist suspects
have frequently proven to be difficult, both as a practical and logistical matter and as a broader gauge of what the judiciarys proper role
154
should be on matters touching quite intimately on the conduct of war.

It is often argued that these difficulties are nothing more than a function of the fact that these post-9/11 cases are ones of first impression.
This is only partly true. These difficulties are inherent, and no accumulation of experience is going to make the underlying evidentiary
dilemmas and problems go away.
Moreover, it cannot be forgotten that CIPA was enacted by Congress to apply to criminal prosecutions, not to military detentions.
See, e.g., 18 U.S.C. app. III 8 (stating that the protections of CIPA
are designed to "prevent unnecessary disclosure of classified information involved in any criminal proceeding" (emphasis added)). There
has been no indication from Congress that CIPA should be extended
wholesale beyond its original scope, and we therefore should not do
so here. Likewise, it cannot be forgotten that Congress passed the
AUMF fully cognizant of CIPA and other available corrective measures. When Congress authorized the use of necessary force, including the military detention of enemy combatants such as al-Marri, it
did so knowing full well that other alternatives were possible. Nevertheless, it authorized the President, when "appropriate," to detain
enemy combatants, a power long recognized as a fundamental incident of waging war. This authorization must not be undermined, as
the plurality attempts, through judicial subversion in the name of
criminal process. See William H. Rehnquist, All the Laws But One:
Civil Liberties in Wartime 205 (1998) (stating that "[j]udicial inquiry"
is "ill-suited" to address issues of "military necessity").
Thus, while many terrorist threats can and should be treated
through the criminal justice system, that preference should by no
means be absolute. Indeed, it has never been the case that the criminal
justice system is used to the exclusion of all other forms of detention.
By effectively reducing the legislatures allocation of detention
options to the executive and all but directing that our government deal
with such threats in a single, invariable manner, the plurality is not
just wrong, but dangerously so. For the reasons discussed above, it is
neither practical nor possible to prosecute all terrorism suspects using
the criminal justice system. And it is not constitutionally required.
D.
I do not wish to be misunderstood. If the prosecution of suspected
terrorists is simply not possible in all circumstances, neither is the use
155
of military detention. While the ability to detain eliminates many of

the problems associated with criminal prosecution, open-ended detention is not an acceptable way to conform our historic commitments to
liberty to the exigencies of this different kind of conflict.
Under the military detention model, the President may detain
enemy combatants without trying them in the criminal justice system.
See Hamdi, 542 U.S. at 516-23. This is an awesome power and, as
such, must be properly circumscribed. Detainees are not afforded the
full protections of the Bill of Rights or the Federal Rules of Criminal
Procedure, and the executives actions are not subject to the accountability that is inherent in the criminal justice system. See, e.g., Harold
Hongju Koh, The Case Against Military Commissions, 96 Am. J. Intl
L. 337, 338-42 (2002).
To turn every crime that might be tenuously linked to terrorism
into a military matter would breach this countrys most fundamental
values. Our acceptance of jurisdiction in al-Marris case bespeaks the
recognition that indefinite detention with no prospect of review is not
an option. Such a broad extension of the executives detention powers
would suspend not only the Constitution, but the very essence of liberty itself.
The hard question is thus not between a full-blown prosecution and
an unsupervised detention. The hard question involves the identification of those who must be formally charged and prosecuted in the traditional manner and those who may be detained pursuant to more
limited procedures set forth by congressional proclamation or
Supreme Court precedent. See, e.g., Hamdi, 542 U.S. at 524-39
(detailing procedures that must be afforded American citizens
detained as enemy combatants).
The dilemma thus is clear: while we have a constitutional preference for traditional criminal proceedings, the prosecution of many terror suspects presents unprecedented challenges. Conversely, while the
ability to detain avoids many of the problems inherent in the criminal
justice system, the threat to liberty presented by executive detention
commands that it be carefully circumscribed. The choice of which
path to take is anything but easy, and the plurality and al-Marri are
absolutely wrong to suggest otherwise.
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Instead, there must be a set of criteria that enable us to identify

when military detention is a constitutionally permissible option. This
is what I shall try to do in Section III. These criteria must endeavor
to respect the preference for the criminal justice system to the extent
possible, while not compromising the unquestioned constitutional prerogative of Congress and the executive to wage war and ensure the
security of this nation and its people.
III. THE DETENTION OF AL-MARRI IS CONSISTENT
WITH THE LIMITS ESTABLISHED BY OUR
CONSTITUTION ON THE MILITARY DETENTION OF
THOSE LAWFULLY ON AMERICAN SOIL.
The text of the AUMF clearly authorizes al-Marris detention. Our
inquiry cannot end here, however. There are constitutional limits on
what Congress can authorize the executive to do. Those limits must
respect both the legitimate operation of the war powers and simultaneously protect against their abuse for military detentions that bear
no relationship to the conduct of war serve only to erode the basic
charter of our rights. Those of us who believe the AUMF applies simply cannot avoid the serious constitutional issues that result. Because
Congress plainly cannot authorize the President to sweep people off
the street without a constitutional basis for doing so, we must also
address whether "the Constitution permits" Congress to authorize the
military detention of someone, such as al-Marri, who was lawfully
residing in this country when seized on American soil. Boumediene
v. Bush, 553 U.S. ___, slip. op. at 59 (2008).
At some point the obligation arises not just to ask whether, but why
as in why the military detention of those lawfully in this country
is a constitutionally permissible exercise. And not just why, but when
as in when the detention of lawful residents is permissible, and
when it is not. If the basic "wh" questions do not arise in this case,
then I doubt they ever will. The American constitutional tradition is
not consonant with the prospect of martial law in other than necessitous 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, 18
U.S.C. 1385 (2000). But the American constitutional tradition likewise does not countenance judicial interference in democratic efforts
to ward off wars gravest dangers. See U.S. Const. art. I, 8, cl. 11-
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16; id. at art. II, 2, cl. 1; Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 635-37 (1952) (granting presidential action taken pursuant to a congressional authorization "the widest latitude of judicial
interpretation") (Jackson, J., concurring). So our obligation becomes
one of treading carefully, lest we cross lines without reflection.
It is here I believe the plurality falls short. By interpreting the
AUMF in a manner so plainly contrary to its text, the plurality all but
states that Congress is devoid of any constitutional authority to authorize detention of al-Marri. Indeed, it proclaims that the application of
the AUMF to allow the military detention of an individual apprehended on American soil and with no foreign battlefield experience
"would have disastrous consequences for the Constitution and the
country." See ante at 62-63. In holding the AUMF not to authorize alMarris detention in the 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 "constitutional concerns" and "serious constitutional questions" that would
attend an interpretation of the AUMF that permits the detention of
persons such as al-Marri. Ante at 20.
So the plurality proposes to avoid all these issues. The plurality is
surely right that, "whenever possible," a statute such as the AUMF
should be construed to avoid "serious constitutional problems." Ante
at 48 (internal quotation marks omitted). But there is a limit to the
extent to which courts may disregard statutory text in the name of
ducking difficult constitutional questions. As Boumediene puts it:
"The canon of constitutional avoidance does not supplant traditional
modes of statutory interpretation. . . . We cannot ignore the text and
purpose of a statute in order to save it." Boumediene, slip op. at 58.
Several members of this court have made clear that the AUMF simply
cannot be read in the manner the plurality proposes. Our basic task
remains that of giving a text some semblance of the meaning that
Congress intended for it, and the doctrine of constitutional avoidance
does not absolve us of that duty.
Thus, in the name of constitutional avoidance, the plurality has
denied the AUMF its plain effect. At the same time, however, the
government has failed to develop principled limitations on its position, thus causing concern that the executive is seeking an authority
158
that is uncomfortably open-ended. See Hamdi, 542 U.S. at 516 (noting that "the Government has never provided any court with the full
criteria that it uses in classifying individuals as" enemy combatants).
Because no absolute approach is tenable, there must be appropriate
criteria for determining when the government may constitutionally
detain a suspected terrorist as an enemy combatant. This is consistent
with the Supreme Courts plurality opinion in Hamdi v. Rumsfeld, 542
U.S. 507 (2004).4
The "threshold question" in Hamdi was "whether the Executive has
the authority to detain citizens who qualify as enemy combatants."
Id. at 516. The Court found that the AUMF did authorize the President to engage in the "fundamental incident[s] of waging war." Id. at
519. This, the Court explained, included the military detention of persons properly classified as enemy combatants. Id. at 518-19 (quoting
Ex parte Quirin, 317 U.S. 1, 28, 30 (1942)).
The Court then addressed who was an enemy combatant. Rather
than delineate the terms full scope, the Court answered only the "narrow question" of whether Hamdi, based on the facts alleged, qualified
as an enemy combatant. Hamdi, 542 U.S. at 516. The Court held that
someone who was "part of or supporting forces hostile to the United
States or coalition partners in Afghanistan and who engaged in an
armed conflict against the United States there," could be treated as an
enemy combatant. Id. (internal quotation marks omitted).
The plurality has consistently overread Hamdi, to the effect that
only those engaged in armed conflict on a foreign battlefield fall into
the enemy combatant category. See ante at 22-25. But that is not at
all what Hamdi said. Recognizing "[t]here is some debate as to the
proper scope of this term," 542 U.S. at 516, Hamdi observed that the
4
Of course, to say that military detention is available is not to say that

it is required. Rather, if military detention is a permissible option, then
the specific decision of whether to detain or prosecute should be left to
the sound discretion of the executive branch. See Padilla v. Hanft, 423
F.3d 386, 394-95 (4th Cir. 2005) (noting "that the availability of criminal
process cannot be determinative of the power to detain, if for no other
reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place").
159
"legal category of enemy combatant has not been elaborated upon in

great detail," id. at 522 n.1. Instead, "[t]he permissible bounds of the
category will be defined by the lower courts as subsequent cases are
presented to them." Id.
This is such a case. Because al-Marris case raises such fundamental questions about the executives power to militarily detain suspected terrorists lawfully residing in this country, it imposes the
obligation to examine the precise contours of the enemy combatant
category and to develop a framework for determining who under our
Constitution may be lawfully detained.5
My analysis thus begins with an examination of traditional law of
war principles that must underlie any understanding of the enemy
combatant category (subsection A). Next, I shall explain how these
principles have consistently accommodated changes in the conduct of
war and in international relations (subsection B). I shall then discuss
the recent changes associated with the war on terrorism, namely the
threat of stateless actors who primarily target innocent civilians and
may come to possess weapons of mass destruction (subsection C).
Based on the principles underlying the law of war and in light of the
new circumstances in this particular conflict, I will elucidate what I
5
The plurality asserts that any constitutional limits placed on the executives ability to abrogate the Bill of Rights amount to what is in effect
a limiting construction on the AUMF itself. See ante at 20-21 n.9. This
is quite mistaken: there is a difference between statutory and constitutional interpretation, and the plurality is wrong to conflate the two. Recognizing that there are constitutional limits as to who the executive may
militarily detain is thus a far cry from placing a limiting construction on
the AUMF.
Moreover, the limiting construction that the plurality places upon the
plain language of the AUMF namely that it does not apply to the military detention of any enemy combatant within this country is a far
more dramatic restriction of congressional language and executive
authority than the Constitution requires. Quite apart from the different
result we reach in al-Marris case, the pluralitys willingness to intrude
upon the exercise of the warmaking powers in the guise of statutory
interpretation bears no resemblance to any constitutional structure I have
known.
160
believe to be the proper criteria for determining who may qualify constitutionally as an enemy combatant (subsection D) and demonstrate
that these criteria are consistent with existing Supreme Court and circuit precedent on the matter (subsection E). Finally, I will apply these
criteria to the facts of al-Marris detention (subsection F). I can discern no shortcut to this inquiry. Indeed, I think this is the only way
to approach and resolve al-Marris case.
A.
At first glance, any discussion of traditional law of war principles
may seem quite antique. These principles are rooted in times long
past, when war was synonymous with classic battlefield combat
engaged in by the uniformed armies of rival nation-states. Our current
enemy has, of course, shown only contempt for long-established rules
of armed conflict. Nevertheless, the law of war remains of primary
importance in determining the proper contours of the enemy combatant category. This is true for two reasons. First, as the Court
explained in Hamdi, "longstanding law-of-war principles" should
inform our understanding of the AUMF and, therefore, the scope of
the Presidents power to detain enemy combatants in the current conflict. See Hamdi, 542 U.S. at 521; see also ante at 22 (stating that
"American courts have repeatedly looked to . . . the law of war in
identifying which individuals" are enemy combatants). Second, and
more fundamentally, traditional law of war principles are consistent
with the belief that indiscriminate detention is antithetical to constitutional norms and cannot be tolerated under our system of justice.
Thus, while I do not claim any special expertise in the law of war
and its history, I begin my analysis by looking to "longstanding lawof-war principles." Although there are those far more knowledgeable
about these matters than am I, certain rudimentary principles do suggest themselves and, as the Supreme Court has indicated, these principles provide context and assistance for the inquiry at issue here.
The law of war is not binding of its own force, but rather informs
our understanding of the war powers in Articles I and II and of the
enemy combatant category. The law of war likewise serves as a
source of guidance during times of armed conflict, and courts look to
the law of war when interpreting the content and scope of a congres-
161
sional authorization to use military force, such as the 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" is that "a broad and unqualified
authorization to use force empowers the President to do to the enemy
what the laws of war permit." Curtis A. Bradley & Jack L. Goldsmith,
Congressional Authorization and the War on Terrorism, 118 Harv. L.
Rev. 2047, 2093 (2005).
The law of war represents a "distinct canon of the Law of Nations."
William Winthrop, Military Law and Precedents 773 (2d. ed., Beard
Books 2000) (1896). In the United States, it "encompasses all international law for the conduct of hostilities binding on the United States
or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary
international law." Dept of Defense, DoD Law of War Program,
DoD Directive 2311.01E, sec. 3.1 (May 9, 2006), available at
http://www.fas.org/irp/doddir/dod/d2311_01e.pdf; see also Jack M.
Beard, The Geneva Boomerang: The Military Commissions Act of
2006 and U.S. Counterterror Operations, 101 Am. J. Intl 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 of discrimination, which seeks to minimize
the unnecessary destruction of life and property that results from
"purposeless or wanton violence." Michael Walzer, Just and Unjust
Wars 129 (3d ed. 2000). The principle of discrimination requires warring nations to limit their military targets to those persons who actually pose a military threat. At the same time, it allows warring nations
to detain those who do represent a military threat, ensuring that such
persons, but only those persons, are removed from the field of conflict. While mistakes are inevitable in the often confused environment
that is warfare, the principle of discrimination recognizes the indisputable value, even in wartime, of sparing innocent life.
This principle of discrimination is effectuated through the category
of "enemy combatant." Only "enemy combatants" may be the
intended targets of military force or militarily detained. Two major
162
distinctions define the enemy combatant category: (1) the distinction

between enemies and non-enemies and (2) the distinction between
combatants and non-combatants. See, e.g., Walzer, supra, at 135-37;
Bradley & Goldsmith, supra, at 2107-16.
The first level of classification determines who qualifies as the
"enemy." Traditionally, the definition of "enemy" has been statebased: after the United States declares war on another nation, all residents of that country are deemed enemies of the United States. Lamar
v. Browne, 92 U.S. 187, 194 (1875) ("In war, all residents of enemy
country are enemies."); In re Territo, 156 F.2d 142, 145 (9th Cir.
1946) (same). A countrys enemies include "not merely the opposed
military forces but all the inhabitants of the belligerent nations or districts." Winthrop, supra, at 776. Consequently, those who reside in
neutral countries, even if politically, but not militarily, sympathetic to
the enemy nation, are immune from detention and targeting by military forces.
After determining that a person is an "enemy," the second level of
classification distinguishes combatants from non-combatants. "By
universal agreement and practice, the law of war draws a distinction
between the armed forces and the peaceful populations of belligerent
nations." See Quirin, 317 U.S. at 30-31. Indeed, the "distinction
between combatants and civilians is a cardinal principle of the law of
war." Beard, supra, at 60.
Combatants have traditionally included "most members of the
armed forces," Bradley & Goldsmith, supra, at 2114, and those "who
associate themselves with the military arm of the enemy government," Quirin, 317 U.S. at 37. The paradigmatic example of a combatant is a soldier who actively serves in his nations military. See
Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts art. 43(2), June 8, 1977, 16 I.L.M. 1391 (hereinafter "Protocol
I") (stating that "[m]embers of the armed forces of a Party to a conflict" are "combatants"). However, "surgeons, assistants and employees charged with the care and transport of the wounded on the field,"
even if they are formally part of the countrys military organization,
generally have not been considered combatants. Winthrop, supra, at
779; Richard J. Regan, Just War: Principles and Cases 89 (1996)
163
(noting that "the law of nations and international conventions prohibit

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 religious personnel" as
"protected person[s]").
Several factors have traditionally been considered relevant to the
determination of whether someone is a combatant. These include an
individuals "self-identification through the wearing of a uniform or
some other distinguishing characteristic" and "participation within the
command structure of a party to the conflict." Bradley & Goldsmith,
supra, at 2114; see also Military Commissions Act of 2006, Pub. L.
No. 109-366, 948a(2)(B), 120 Stat. 2600, 2601 (including the
"wear[ing] [of] a fixed distinctive sign recognizable at a distance" and
being "under responsible command" as part of the determination of
"lawful enemy combatant"); Geneva Convention Relative to the
Treatment of Prisoners of War art. 4, Aug. 12, 1949, 6 U.S.T. 3316,
75 U.N.T.S. 135 (hereinafter "Third Geneva Convention"). A persons presence on a battlefield has also been considered particularly
relevant to the combatant determination. See, e.g., Padilla, 423 F.3d
at 391-92 (citing Hamdi, 542 U.S. at 522 n.1).
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No single factor must exist in order to qualify a person as a combatant, however. For instance, the Supreme Court has made clear that
an individual may be a combatant even if he is not acting on the battlefield. In Quirin, the Court held that the petitioners, who had buried
their military uniforms after secretly arriving in the United States,
were no "less belligerents [i.e. combatants]" even if they had "not
actually committed or attempted to commit any act of depredation or
entered the theatre or zone of active military operations." 317 U.S. at
38. The failure of the plurality to appreciate this aspect of Quirin
results in a faulty premise. The plurality mistakenly presumes that in
order to be an enemy combatant, an individual must have been present, at one time or another, on an active battlefield. See ante at 28
(finding that al-Marri was not an enemy combatant because, among
other reasons, he was "not alleged to have been on the battlefield during the war in Afghanistan"). Quirin makes plain the concept of a
combatant is much broader.
Likewise, a persons citizenship status is not determinative of his
combatant status. The plurality discusses at length the fact that alMarri, as an alien who lawfully entered the United States, receives
"certain [legal] protections including those rights guaranteed by
the Due Process Clause" while within the United States. Ante at
14. The plurality emphasizes this point to demonstrate that allowing
the detention of al-Marri, a lawful alien, would also permit the detention of American citizens. See, e.g., ante at 6 (arguing that the detention of al-Marri would also allow the "military detention of a similarly
situated American citizen"); id. at 14 (noting that "the Due Process
Clause protects not only citizens but also aliens"); id. at 33 (noting
that "even ordinary American citizens" could be detained).
Once again, the plurality has indefensibly narrowed the concept of
a combatant. Any implication that an individuals citizenship status
prevents his detention as an enemy combatant also runs directly afoul
of the Supreme Courts holding in Quirin. Quirin makes clear that the
law of war trumps any claim based on American citizenship: "Citizenship in the United States of an enemy belligerent [i.e. combatant]
does not relieve him from the consequences of a belligerency which
is unlawful because in violation of the law of war." 317 U.S. at 37-38.
168
2.
Depending on ones status as a combatant or non-combatant, different rights and obligations attach.6 For instance, combatants are the
only ones who may legitimately carry out "the operations of war,"
namely the use of force. Winthrop, supra, at 778. Consequently, only
they may lawfully kill the opposing forces. However, in exercising
this awesome power, combatants may only target fellow combatants.
And, of course, "once war has begun," combatants may be "attack[ed]
at any time (unless they are wounded or captured)." Walzer, supra,
at 138.
Combatants are also required to follow the laws of war. Offenses
against the law of war may be defined by Congress, see U.S. Const.
art I., 8, cl. 10, or based on "the common law of war," see Hamdan
v. Rumsfeld, 126 S. Ct. 2749, 2780 (2006). Offenses include "engaging in illegal warfare as a guerilla," "acting as a spy," "abuse or violation of a flag of truce," disguising oneself in the uniforms of the
opposing forces, and the "unlawful, unreasonably harsh, or cruel,
treatment of prisoners." Winthrop, supra, at 785, 791, 839-40; see
also Quirin, 317 U.S. at 35-37 (holding that persons who "pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving
destruction of life or property, have the status of unlawful combatants
punishable as such by military commission"); Military Commissions
Act of 2006, Pub. L. No. 109-366, 950v(b), 120 Stat. 2600, 262630 (defining twenty-eight offenses that are triable by military commission as law of war offenses); Third Geneva Convention art. 3.
If a combatant acts in accordance with the law of war, he is a lawful combatant and entitled to the rights thereof. This includes being
treated as a prisoner of war if captured. See Third Geneva Convention; Regan, supra, at 88. Because lawful combatants are simply following the orders of their belligerent nation, the law of war dictates
that they not be punished for their role in the hostilities. Third Geneva
6
Non-combatants, also known and referred to by the plurality as civilians, are by definition anyone who is not 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.
169
Convention art. 13 ("Measures of reprisal against prisoners of war are

prohibited."); Winthrop, supra, at 791. Instead, they are held as prisoners of war, treated humanely, and released or returned to their home
country when the conflict is over. See Third Geneva Convention art.
13 ("Prisoners of war 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
footing as regards food and clothing as the troops of the Government
who made them prisoners").
If a combatant violates the law of war, however, he becomes an
unlawful combatant. Unlawful combatants "are subject to trial and
punishment by military tribunals for acts which render their belligerency unlawful." Quirin, 317 U.S. at 31; see also Johnson v. Eisentrager, 339 U.S. 763, 786 (1950) (noting that the "jurisdiction of
military authorities, during or following hostilities, to punish those
guilty of offenses against the laws of war is long-established").
Unlawful combatants are to be tried by military commissions. See
Military Commissions Act of 2006, Pub. L. No. 109-366, 948c, 120
Stat. 2600, 2602 (establishing military commissions for alien unlawful enemy combatants); Hamdan, 126 S. Ct. at 2775-78. After trial by
military authorities, unlawful combatants may be punished in any
number of ways, including imprisonment or death. Winthrop, supra,
at 842-43.
Non-combatants also have unique rights and obligations under the
law of war. First and foremost, civilians should not "be the objects or
the targets of military activity," Walzer, supra, at 151, and "[e]xcept
where unavoidable," they "are not to be involved in injury to life, person, or property," Winthrop, supra, at 778; Protocol I, art. 51. Those
who violate this "rule of immunity of non-combatants . . . become liable to the severest penalties as violators of the laws of war." Winthrop, supra, at 779.
In light of this immunity from the brunt of armed conflict, civilians
have a related obligation to not "take a direct part in hostilities." Protocol I, art. 51(3). If a non-combatant does take a direct part in the
170
conflict, he forfeits his status as a civilian and may be treated as an

unlawful combatant.7 See Bradley & Goldsmith, supra, at 2115.
3.
The above is no more than a concise presentation of the classical
model of the laws of war. No one is so naive as to believe that the
classical model governs the behavior of all warring parties. The classical model often cracks under the strain of actual warfare, as the devastation to civilians in World War II, among other things, bears full
testament. And, as was plain from 9/11, al Qaeda and other terrorists
hold the laws of war in open contempt. Thus, the classical model is
not introduced to suggest guidelines to which warring parties in fact
adhere or standards that would subject the conduct of war in this
country to pervasive litigation.
Instead, I discuss the classical model for a discrete and narrow purpose. The attacks of 9/11 left this country on the horns of a dilemma:
between having our hands tied with Marquess of Queensberry rules
and being so indifferent to the law of war that we ourselves became
a rogue and lawless nation. The Supreme Court, in attempting to alleviate this tension, suggested that the law of war serves as a useful
guide as to whom the President may constitutionally detain. See
Hamdi, 542 U.S. at 518, 521. In other words, an understanding of the
traditional law of war is the first step in defining the concept of an
enemy combatant.
In sum, the law of war has historically classified individuals during
times of armed conflict into one of several categories. The process of
classification involves two major steps. The first inquiry is whether
a person is an enemy. If so, the second inquiry is whether that person
is a combatant or a civilian. Different rights attach depending on these
7
The exact line between direct and indirect participation is not a clear
one. See Beard, supra, at 60 (noting that "[d]etermining precisely when
noncombatants lose their protected status . . . has not always been easy");
Bradley & Goldsmith, supra, at 2115 (noting that "there is uncertainty
about where the line should be drawn"). However, there is universal
agreement that a civilian who engages in military-like actions, such as
discharging a weapon against the enemy, directly participates.
171
classifications. Most importantly for our purposes, only enemy combatants, both lawful and unlawful, (and civilians who take a direct
part in hostilities) may be detained by the military in accordance with
the laws of war.
B.
The classical model is just that: a classical model. War changes. So
too the law of war has not remained static. Rather, it has responded
to the ever-evolving nature of combat and the dynamic quality of
international relations.
To that end, the recent past has witnessed dramatic changes in the
manner in which wars are conducted. War is less a state-based enterprise: the greatest threats to our nations security now include those
from stateless actors intent on unleashing weapons of mass destruction against civilian populations. Thus, while the principle of discrimination and the category of enemy combatant surely remain a vital
part of the law of war, they most definitely must accommodate the
new threats to the security of nations. The pluralitys perspective, by
contrast, is mired in the models of the past, and completely fails to
accommodate the changing nature of warfare.
Changes in military strategy, technology, and international relations are synonymous with war itself. As the following historical
examples demonstrate, the law of war has always accommodated new
circumstances in order to effectuate its core principles and purposes.
An early example of such accommodation is the adaptation of the
combatant category to the emergence of "guerilla" fighters. Before the
Civil War, guerilla fighters, defined as "[i]rregular armed bodies or
persons not forming part of the organized forces of a belligerent . . .
who engaged in the killing, disabling and robbing of peaceable citizens or soldiers . . . from motives mostly of personal profit or
revenge," were relatively unknown. Winthrop, supra, at 783-84.
Because this type of warrior was new, Union military commanders
were unsure whether these guerilla fighters should be treated as "ordinary belligerents and be given the same rights as prisoners of war" or
172
as unlawful belligerents, subject to trial and punishment by the military. Louis Fisher, 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 of such guerillas depended on whether they were fighting lawfully or unlawfully and that an absence of uniform should not be
considered decisive. Id. at 73-74. If captured during a "fair fight and
open warfare," then guerillas should be treated as prisoners of war.
However, if fighting in stealth, such as by disguise or concealment,
then guerillas could be punished as unlawful belligerents. Id. This
opinion would later appear in Dr. Liebers landmark military code,
which "heavily influenced" the future Hague and Geneva Conventions. Id. at 71-75.
Likewise, the category of unlawful weapons, though consistent in
principle, has "increased in modern times" with the development of
new and more devastating weaponry. Winthrop, supra, at 784. Given
the frequency of technological changes and advancements in war
weaponry, the list of legitimate and illegitimate weapons has necessarily changed "with the progress of inventive science." Id.; see also
Protocol I, art. 36 (requiring Parties to determine whether any "new
weapon, means or method of warfare" is permissible). Thus, in just
the last century, various types of chemical and biological weapons
have been deemed to be unlawful means of warfare, probably because
"in disabling or causing death, [they] inflicted a needless, unusual and
unreasonable amount of torture or injury." Winthrop, supra, at 784.
In addition to changes in who participates in wars and how wars
are fought, the law of war has also accommodated transformations in
international relations. Historically, the law of war only applied when
nation-states declared war against each other. However, the United
Nations Charter now regulates "armed conflict," in the form 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 for declarations of war has
largely disappeared" and "armed conflict" is now the "relevant jurisdictional concept" for the law of war. Bradley & Goldsmith, supra,
at 2061. The Geneva Conventions of 1949 recognized this change
when it stated that the law of war applies not only when there is a
declared war but also when there is "any other armed conflict which
173
may arise." See, e.g., Third Geneva Convention art. 2; see also Bradley & Goldsmith, supra, at 2061.
My purpose is not to applaud or condemn this or that particular in
the changing law of war. I list but a few examples of how the law of
war has accommodated altered circumstances, but they serve to demonstrate a larger point: in order to effectuate its purposes, the law of
war has never remained static. If other principles of the law of war
have changed, there should be nothing changeless or immutable about
the definition of enemy combatant.
C.
The current struggle against global terrorism bears some of the
hallmarks of traditional war: it consists of armed enemies fighting
over political and ideological goals. However, other characteristics
are clearly new.
First, and most importantly, is the change in who fights war. The
law of war was initially designed to regulate encounters between
nation-states. However, the greatest threats to our nations security
now include stateless actors. No longer are our enemies tethered to
individual nations; instead, they are diffuse organizations comprised
of citizens from many different countries around the globe. Put simply, while terrorism may find support and sponsorship from nationstates, it does not need to be a state-based enterprise.
Congress specifically recognized the emergence of the threat presented by stateless actors when it authorized the President "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." AUMF, 115
Stat. 224 (emphasis added).
Second, the means employed by terrorists "represent[ ] [a] breakdown" in the "political code first worked out in the second half of the
nineteenth century and roughly analogous to the laws of war worked
out at the same time." Walzer, supra, at 198. Although terrorist-like
acts have always occurred in war, modern terrorism that is, "the
174
random murder of innocent people" "emerged as a strategy of revolutionary struggle only in the period after World War II." Id. Modern
terrorists typically blend into the surrounding community and deliberately strike at soft targets, such as office buildings and other venues
in the public square. This makes the "battlefield" in the current conflict essentially unbounded, and renders the traditional indicia used to
determine enemy combatant status, such as appearance on a battlefield and the wearing of a uniform, woefully unreflective of the risks
posed by terrorist organizations.
Finally, the changes in warfare discussed previously the presence of stateless terrorists intent on targeting innocent civilians are
magnified by the fact that weapons of mass destruction, whether
chemical, biological, or nuclear in nature, are more readily available.
See Richard A. Posner, Not a Suicide Pact: The Constitution in a
Time of National Emergency 2 (2006) (discussing the potential effects
of a terrorist strike with weapons of mass destruction). Put simply, the
consequences of not addressing these risks are vastly greater today
than they were a generation ago. Today, a single terrorist can kill
thousands upon thousands of civilians in an instant. It simply cannot
be the case that the law of war must be so bound in obsolescence that
it hinders a nations ability to recognize new threats.
The plurality surprisingly resists the idea that the law of war has
evolved as it applies to these changed circumstances. Ante at 49. This
would seem to ignore the fact that the events of 9/11 even happened;
all who witnessed or remember them have no doubt that warfare has
reached a new and more dangerous phase. Still, the plurality insists
that I offer "no legal authority" for the assertion that the law of war
has in fact been evolving. Id. But the legal authority is there. In fact,
the legal authority is right before the pluralitys eyes. In the AUMF
Congress certainly accepted what the plurality does not: that the traditional principles of the law of war can be adapted to changed circumstances. The text of the AUMF recognizes that traditional concepts
such as "battlefield" and "nationality" do not capture the risks presented by terrorists bent on replicating the events of 9/11. The plurality contends, however, that Congresss view of law of war principles
should make not the slightest constitutional difference. See ante 49
n.24. In not permitting the democratic branches to take into account
changes in modern warfare the plurality plainly traps this nation in a
175
time warp. And in denying Congresss expression under the AUMF

any and all constitutional effect, the plurality continues its course of
reading the Article I 8 war power right out of the document. Id.
In passing the AUMF, Congress sought to recognize that the world
around us changes; in contrast, the pluralitys view of that world
remains quite dangerously static. In fact, while the plurality propounds its view in the guise of interpreting the AUMF, its interpretation and its commitment to quaint notions of battlefields and
nationality is so textually incorrect, that it is hardly speculative to
suppose that the pluralitys interpretation is propounded as a constitutional limitation on the executive as well. Whatever the case may be,
it binds the nation to law of war concepts that even the most casual
observer of modern terrorist tactics would never accept.
D.
It is undisputed that enemy combatants, if properly classified as
such, may be detained by the military. See Hamdi, 542 U.S. at 51619, 533-35. Who then may be classified by Congress, acting pursuant
to our Constitution, as an enemy combatant? The Supreme Court
insists we consult the law of war. Having examined the law of war
and considered the recent changes in warfare and international relations, I believe that three criteria best identify who qualifies as an
enemy combatant in the current conflict.
I do not suggest that these are the only criteria that might be set
forth. Nor would I be so presumptuous as to suggest that these criteria
will eliminate the prospect of difficult cases. I do, however, think it
is critical to develop some general rules so that cases such as alMarris may be resolved on a principled rather than an ad hoc basis.
In fact, until some general guidance is set forth, the executive will
have no idea which military detentions are permissible and which are
plainly beyond constitutional bounds. And without general guidance,
the fear and specter of an open-ended executive detention power of
persons lawfully in this country will remain.
Thus, while I do not for a moment contend that any set of criteria
will be free from difficulty, I do emphatically contend that these three
criteria conform to the evolving principles of the law of war; that they
176
apply the limiting principle on enemy combatant detentions that the

government has failed to suggest; and that they should avoid the serious "constitutional concerns" that the plurality and various amici
raise, if the AUMF were held, as I believe it must be, to allow the
detention of an enemy combatant apprehended on American soil. See
ante at 20.
The first two criteria determine who constitutes an "enemy." Historically, the conception of "enemy" has been nation-based. However,
as discussed in the prior section, nations are no longer the only entities that engage in armed conflict. Rather, stateless actors, most prominently terrorist organizations, are now a pressing military threat to
the security of America.
Given these realities, an "enemy" is any individual who is (1) a
member of (2) an organization or nation against whom Congress has
declared war or authorized the use of military force. Taken together,
these two criteria closely track traditional law of war concepts that
distinguish enemies from non-enemies. At the same time, they recognize that modern military threats include those posed by non-state
actors.
I first address the criterion of membership. While the traditional
requirement of residency or other affiliation with an enemy nation
still applies, the advent of enemy organizations requires a functional
equivalent to residency for this new stateless actor. This is achieved
by the requirement of membership in the enemy organization.
Because membership may be considered more amorphous than residency or citizenship, it is important that there be identifiable facts that
indicate such affiliation with the enemy organization. Such indicia of
membership may include: self-identification with the organization
through verbal or written statements; participation in the groups hierarchy or command structure; or knowingly taking overt steps to aid
or participate in the organizations activities. See, e.g., Bradley &
Goldsmith, supra, at 2114-15.8 Thus, for example, someone who
8
The plurality chides me for referencing the works of "distinguished

legal academics. " Ante at 40 n.20 . I of course make no apologies for
drawing upon the work of distinguished scholars when attempting to dis-
177
sends money to "a nonprofit charity that feeds Afghan orphans" that
unknowingly makes "its way to al Qaeda" would not be a member of
the al Qaeda organization, and it is beyond hyperbole for the plurality
to suggest otherwise. Ante at 19. Furthermore, the membership
requirement is important because it aids in distinguishing those who
are the enemy from those who merely sympathize with the enemy.
The second criterion congressional authorization recognizes
that Congress may authorize the use of military force against nonstate actors, such as terrorist organizations, as it has already with the
AUMF. By contemplating such authorization, this second criterion
appropriately excludes from the category of "enemy" those persons or
groups against whom Congress has not authorized the use of military
force. Thus, the notion that any individual affiliated with an organization engaged in purported terrorist activities such as the "environmental group" mentioned by the plurality could be considered an
enemy combatant is completely unfounded. Ante at 37 n.18. For certain, there are many individuals and organizations engaged in unlawful conduct, and even terrorism. But most of these individuals and
organizations have nothing to do with al Qaeda, its affiliates, or the
September 11 attacks. Under this criterion, such persons would not be
eligible for military detention under the AUMF. This is both consistent with our traditional conception of who should and should not be
eligible for detention and appropriate in light of the constitutional
imperative that military detention be the exception and not the rule.
Indeed, not to require congressional authorization for such detentions
in this country splits the ground beneath the war powers right in two.
If the first two criteria address who in modern warfare is the
enemy, the third criterion addresses who is the combatant. Historically, this distinction has separated those with military aims from
those who do not present a threat to opposing forces. Though yesterdays soldier has been replaced, at least in part, by those who eschew
cern the constitutional framework within which this question of first
impression must be located. Indeed, to rule out any reliance upon those
who have studied and reflected on these questions seems to me a form
of "know-nothingism" in which my distinguished colleagues in the plurality have also wisely declined to indulge.
178
the conventions of lawful warfare, the purpose underlying this distinction remains unchanged. In light of todays realities, a "combatant" is
a person who knowingly plans or engages in conduct that harms or
aims to harm persons or property for the purpose of furthering the
military goals of an enemy nation or organization. Like the first two
criteria, this requirement closely tracks the relevant traditional law of
war rules.
Under this criterion, those who use military-like force against
American soldiers or civilians obviously qualify as combatants. Similarly, members of an enemy sleeper terrorist cell that have taken
steps, even if preliminary in nature, toward an act of destruction are
also considered combatants. Conversely, persons traditionally considered civilians, such as members of the enemy organization who do not
possess hostile or military designs, are non-combatants and may not
be detained by the military. This includes persons who would clearly
be non-combatants, such as a "physician who treated a member of al
Qaeda," because they intend no harm to persons or property. Ante at
20. Such persons would not be subject to military detention.
Two further examples may help illustrate the scope of this framework. First is a person who joins a terrorist organization after Congress has authorized the use of military force against the respective
group. In the present conflict, this would include new recruits to al
Qaeda or its affiliates after 9/11. Under the above criteria, such persons are clearly part of the "enemy," even if they were not members
of the targeted organization at the time Congress initially acted. This
is because it was the organization and its affiliates, and not just the
then-members of such groups, against whom Congress authorized the
use of force. See AUMF, 115 Stat. 224 (authorizing the use of "all
necessary and appropriate force against those . . . organizations [that]
. . . committed" the 9/11 attacks, "in order to prevent any future acts
of international terrorism"). Thus, in the current conflict, any "individual can become part of a covered organization by joining it after
the September 11 attacks." Bradley & Goldsmith, supra, at 2110. As
a result, such a person, if also a combatant, would be eligible for military detention.
Second is a person who commits, or plans to commit, a terrorist act
but is not otherwise affiliated with an organization or country covered
179
by a congressional proclamation. Timothy McVeigh is one example

that comes to mind. Because such a person is not a member of an
enemy organization, he may not be detained as an enemy combatant
under the above criteria. Indeed, Congress has never declared war
against a single individual or even a discrete conspiracy (unless the
Barbary pirates qualify), and it is difficult to envision a scenario in
which it would. This is unsurprising, in part because prosecutions of
individual terrorists do not ordinarily present the same sort of logistical, informational, and evidentiary problems as large scale terrorist
networks or nations. See supra Section II.
However, this in no way suggests that the executive is prohibited
from acting preventively in such instances. Rather, it simply means
that the threat posed by such an individual must be addressed pursuant to more traditional statutory procedures, such as a material witness warrant, see 18 U.S.C. 3144, or indictment under any number
of potentially relevant criminal statutes, see, e.g., 18 U.S.C. 2332a
(prohibiting the threatened, attempted, or actual use of a weapon of
mass destruction); 18 U.S.C. 2332b (prohibiting acts of terrorism
transcending national boundaries); 18 U.S.C. 2332f (prohibiting the
bombing of places of public use or government facilities); 18 U.S.C.
1751 (prohibiting assassinating or conspiring to assassinate the
President or Vice President of the United States); 49 U.S.C.
46502(a)(2) (prohibiting committing or conspiring to commit aircraft piracy); 18 U.S.C. 844(f) (prohibiting the damage or destruction of any personal or real property of the United States). In short,
such a person can surely be detained and neutralized, but not through
the means of military detention.
In sum, the following three criteria must be met in order for someone to be classified as an enemy combatant: the person must (1) be
a member of (2) an organization or nation against whom Congress has
declared war or authorized the use of military force, and (3) knowingly plans or engages in conduct that harms or aims to harm persons
or property for the purpose of furthering the military goals of the
enemy nation or organization.
These three criteria reach beyond those of the plurality because
they may constitutionally include, if Congress so authorizes, persons
arrested outside any formal battlefield, persons not in uniform, and
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persons arrested on American soil. The criteria are at the same time
limited, however, and should not be construed as granting the executive a blank check to brand certain domestic groups as subversive and
militarily detain whomever it pleases. Indeed, under these criteria,
there are at least three significant limitations on the executives ability
to militarily detain persons lawfully residing in the United States.
First, there is the significant political check of congressional authorization. Specifically, absent some limited inherent authority needed
during times of emergency, the executive may only detain those persons against whom Congress has authorized the use of force. If history is any indicator, Congress does not take such a decision lightly.
Indeed, it was the dire events of September 11th that gave rise to the
use of military force in the present instance, and it is likely that only
emergencies of similar magnitude will trigger a similar response.
Second, even if Congress were to authorize the use of military
force against a particular group, it would not be authorizing the executive to make a sweep on the basis of mere membership. This is
because membership, without more, is not enough to qualify as an
enemy combatant under my proposed criteria. Rather, the person in
question must have taken steps to further the military goals of the
organization. Thus, McCarthy-like accusations of mere group membership would not suffice as a basis for detention.
Third, persons subject to military detention are afforded the opportunity to challenge the accuracy of their detention before a neutral
decisionmaker in accordance with the framework articulated in
Hamdi. This ensures that the government possesses sufficient evidence to justify a measure as serious as military detention.
Given these checks on executive power, any fear of massive roundups or reckless disregard for human liberty would be misplaced.
Furthermore, these criteria accommodate recent changes in a manner that is consistent with the law of wars principles and purposes.
For instance, one of the purposes of the enemy combatant category
is to limit the number of people subject to military force, including
military detention, to those who threaten military harm. Each of the
above criteria serve that purpose, as they exclude persons who are not
181
members of enemy organizations as well as persons in such groups

who do not try to do harm. Another purpose of the category is to
determine which persons may be properly detained in order to eliminate the threat they pose. The above criteria are also consistent with
that purpose, as they allow the military to detain, without fear of having to release because of an inability to prosecute, those who present
real and serious threats to our security and safety.
E.
In addition to comporting with traditional law of war principles and
purposes, these three criteria are also in line with all Supreme Court
and circuit precedent on the matter. See Ex parte Quirin, 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). Although each of
those cases declined to delineate the full scope of the category, see
Quirin, 317 U.S. at 45-46; Hamdi, 542 U.S. at 516; Padilla, 423 F.3d
at 391-92, the criteria articulated here are plainly consistent with their
pronouncements about who, at a minimum, qualifies as an enemy
combatant. See Quirin, 317 U.S. at 37-38 (finding that people who
"associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent
on hostile acts" qualified as enemy combatants); Hamdi, 542 U.S. at
516 (finding that someone who was "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who
engaged in an armed conflict against the United States there" qualified as an enemy combatant) (internal quotations omitted); Padilla,
423 F.3d at 389 (finding that someone "who is closely associated with
al Qaeda, an entity with which the United States is at war; who took
up arms on behalf of that enemy and against our country in a foreign
combat zone of that war; and who thereafter traveled to the United
States for the avowed purpose of further prosecuting that war on
American soil, against American citizens and targets" qualified as an
enemy combatant) (emphasis omitted).
Moreover, these criteria clearly do not run afoul of three potential
constitutional concerns. First is the scope of the executives power
under Article II. It is widely accepted that the President has some
inherent constitutional powers, particularly to act in times of emergency when large numbers of American lives may be at stake. See
182
The Federalist No. 70, at 392 (Alexander Hamilton) (Clinton Rossiter

ed., 1999) (noting that the executive branch possesses many qualities,
such as "[d]ecision, activity, secrecy, and dispatch," that are essential
to the prosecution of a war); The Federalist No. 74, at 415 (Hamilton)
("Of all the cares or concerns of government, the direction of war
most peculiarly demands those qualities which distinguish the exercise of power by a single hand."). Though the scope of those powers
is much debated, we need not address the specific contours of the
powers here. This is because the Court in Hamdi a case much like
this one where no immediate exigency was present implicitly
found no Article II problem when defining the scope of the enemy
combatant category, as I do here, in accordance with the law of war.
See Hamdi, 542 U.S. at 518-521. In addition, no other relevant
authority indicates that these criteria would impinge on the Presidents inherent operational authority as commander-in-chief or his
ability to act in times of true emergency.
Second is the Courts decision in Hamdi, which required under the
due process clause that American citizens detained as enemy combatants "be given a meaningful opportunity to contest the factual basis
for that detention before a neutral decisionmaker." Hamdi, 542 U.S.
at 509. Whereas Hamdi established the procedures to which at least
one type of enemy combatant was entitled, the criteria discussed
above address the antecedent question of who qualifies as an enemy
combatant. Put another way, this approach articulates a substantive
legal definition of enemy combatant, whereas Hamdi enables one
class of alleged combatants to procedurally challenge the factual basis
of their detention. In short, Hamdi does not present any constitutional
problem to the category of enemy combatant as defined by these
criteria.
Finally, these criteria do not contravene the principles established
in Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). In that case, the
Court established the bright-line rule that civilians may not be tried
by military authorities if the civilian courts are open and functioning.
Id. at 121. However, as the Court made clear in Quirin, this principle
only applies to persons who are not enemy combatants. See Quirin,
317 U.S. at 45 (emphasizing that Milligan "was a non-belligerent"
and thus "not subject to the law of war"). Put simply, the Court in
Milligan was not addressing the definition of enemy combatant but
183
rather the circumstances under which martial law (which permits the
military trial of civilians) may be declared. Thus, the principles laid
down in Milligan apply only after it has been determined that the
individual in question is a civilian, not a combatant. The framework
delineated above addresses the earlier question of who qualifies as a
combatant and thus any reliance on Milligan would be misplaced.
Thus, the pluralitys suggestion that the detention of al-Marri
would "so alter the constitutional foundations of our Republic" as to
"render [them] lifeless" is patently incorrect. Ante at 63. For the reasons discussed, al-Marris detention perfectly accords with the Constitution. In fact, it is difficult to square the pluralitys expressed
concern over the constitutionality of al-Marris detention with its
express questioning of our effort to establish constitutional limits that
bind "both the executive and legislative branches." Ante at 49. It is
further curious that the plurality should take exception to an inquiry
that Boumediene instructs us to undertake. See Boumediene, slip op.
at 59 (stating that the executives authority depends not only on what
the AUMF authorizes, but also on what "the Constitution permits").
Regardless, to the extent that the pluralitys erroneous interpretation
of the AUMF in this case was influenced by constitutional concerns,
these concerns were unfounded.
F.
The description of the general framework makes possible a
straightforward resolution of the specific question of whether the
executive has the authority to detain al-Marri as an enemy combatant.
The framework also permits the decision to be made in a principled,
rather than ad hoc, fashion, and consistent with the constitutional limitations on who may be militarily detained.
As discussed earlier, the Supreme Court held that the AUMF grants
the President the authority to detain enemy combatants. See Hamdi,
542 U.S. at 518. Since Congress did not articulate a specific definition
of "enemy combatant" in the AUMF, I have looked to the law of war
for guidance in determining the scope of the Presidents detention
authority under the statute. Id. at 518-21.9
9
In the Military Commissions Act of 2006 ("MCA"), Congress defines

"lawful enemy combatant" as a person who is:
184
Based on the criteria identified and the facts alleged, al-Marri easily qualifies as an enemy combatant. To begin, he satisfies the two
criteria used to define an "enemy." The AUMF authorizes the use of
force against al Qaeda, and al-Marri has clearly taken the steps necessary to be considered a member of the organization. Not only did he
attend an al Qaeda terrorist camp in Afghanistan, but he also subsequently cultivated relationships with the most senior members of the
al Qaeda organization: he met personally with Osama bin Laden and
(A) a member of the regular forces of a State party engaged in
hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed
distinctive sign recognizable at a distance, carry their arms
openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance
to a government engaged in such hostilities, 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 combatant" as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents
who is not a lawful enemy combatant (including a person who is part of
the Taliban, al Qaeda, or associated forces)," or "who, before, on, or after
the date of the enactment of the [MCA], has been determined to be an
unlawful enemy combatant by a Combatant Status Review Tribunal or
another competent tribunal." Id. 948a(1).
Though informative in some respects, these definitions are of limited
assistance and relevance in this case. This is because they apply only to
the detainees tried by military commissions established by the MCA,
namely aliens who are unlawful enemy combatants as defined by the
MCA. Id. 948b-c. Thus, these provisions do not specifically address
the scope of the Presidents detention power under the AUMF nor the
definition of "enemy combatant" for purposes other than the military
commissions under the MCA. See Richard H. Fallon, Jr. & Daniel J.
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War
on Terror, 120 Harv. L. Rev. 2029, 2109 (2007).
185
volunteered to martyr himself for the al Qaeda cause; he entered the

United States as a sleeper agent under the direction of Khalid Shaykh
Muhammed, the mastermind of the 9/11 attacks; and he received substantial funding for his mission from Mustafa Ahmed al-Hawsawi, the
financial facilitator of the 9/11 attacks.
Furthermore, al-Marris behavior was that of a "combatant." He did
not arrive here with peaceful purposes in mind. At the time he was
detained, al-Marri was in the process of preparing cyanide attacks
against American civilians and technological attacks on the U.S.
financial system. Therefore, it is clear that he knowingly planned to
engage in conduct that aimed to harm both life and property. In addition, the direction he received from the hierarchy of al Qaeda indicates that his terrorist actions were undertaken to further the military
goals of that enemy organization.
Although al-Marri fits easily within the definition of enemy combatant and may therefore be militarily detained, there will undoubtedly be harder questions concerning the scope of the Presidents
detention authority in the future. Novel legal problems concerning the
proper balance between liberty and security will continue to arise as
the struggle against terrorism proceeds. While I respect those who
feel differently, I believe the constitutional authority of the executive
to detain al-Marri pursuant to clear congressional directive is evident.
It matters not that al-Marri was not in uniform, that he was not on
some foreign battlefield, or that he was not in the service of a nations
armed forces. It matters not that his status was that of a lawful alien,
that he was arrested on American soil where the threat of belligerency
may be greatest, or that he was detained militarily rather than prosecuted by civil authority. To hold that these things mandate a grant of
the writ requires this country to face contemporary threats of grave
dimension shackled by outmoded notions of the law of war. To rule
for al-Marri is to set judicial authority in matters of armed conflict
above the combined will and expression of both Congress and the
executive. To hold in petitioners favor would hobble the political
branches in performing the most basic function that the Framers allocated to them that of providing for the safety and protecting the
lives of those they represent, the people of America.
186
IV. AL-MARRI RECEIVED THE PROCESS HE WAS DUE.

The concurring opinion in this case (the opinion authored by Judge
Traxler) finds that al-Marri may be detained as an enemy combatant
under the AUMF. As expressed earlier in this opinion, I share fully
my good colleagues views on this matter.
My agreement ends there, however. The concurrence asserts that
"the process afforded al-Marri" to challenge his detention "did not
meet the minimal requirements of due process guaranteed by the Fifth
Amendment." Ante at 64-65. I think this view is in error, and its consequences are serious.
The district court offered al-Marri each of the procedures required
by the Supreme Courts Hamdi decision, but al-Marri believed he was
entitled to something akin to a full criminal trial and refused to avail
himself of any of these protections. As a result, it is quite wrong to
suggest that al-Marri did not receive the full benefits of due process
as articulated by what all concede is the most relevant Supreme Court
decision. In addition, al-Marri also received protections that satisfied
any requirements that the Supreme Courts recent decision in
Boumediene could reasonably be read to impose.
Al-Marri asserts that due process requires additional procedures be
afforded him because he was not a "person initially detained . . . on
a battlefield in Afghanistan." Ante at 85-88. But these additional procedural safeguards are not required by Hamdi, and there is no necessary connection between the lack of a foreign battlefield presence and
the need for enhanced procedural protections. In fact, as discussed
earlier in this opinion, a sleeper agent hiding in the United States may
present a more serious security threat and raise more pronounced evidentiary problems than an enemy soldier located on a battlefield.
Moreover, nothing could be more contrary to the Supreme Courts
due process jurisprudence than the ab initio imposition of inflexible
procedural requirements based on artificial and categorical distinctions. Procedures should be ordained not at the outset but as necessary
to ensure accurate determinations. To impose such requirements ab
initio disregards the "prudent and incremental" approach required by
Hamdi and neglects the fact that accuracy must be the touchstone of
187
any procedural due process inquiry. Hamdi, 542 U.S. at 539; see also
Boumediene, slip op. at 52.
The approach of my concurring colleague will thus have significant
consequences. By forsaking Hamdi and categorically insisting on
more rigorous procedural safeguards at the outset of al-Marris habeas
hearing, the concurrence would accomplish through constitutional
means much of what the plurality would accomplish through statutory
interpretation, namely a future disablement of legitimate legislative
efforts to authorize Hamdi-style proceedings for even the most dangerous terrorist suspects within this country.
A.
A brief review of the proceeding below will illustrate the soundness of the district courts approach. In July 2004, counsel filed a petition for a writ of habeas corpus on al-Marris behalf in the District of
South Carolina. The petition claimed that al-Marri could not be
detained as an enemy combatant, and that the government had to
either criminally charge or release him. In the alternative, al-Marri
sought a hearing at which he would be able to challenge, with the
assistance of counsel, the factual basis for his detention. It should be
noted that al-Marri has had the assistance of counsel in every proceeding since the filing of this habeas petition.
One year later, after further pleadings from each party, the district
court determined that, based on the facts alleged, al-Marri could be
detained 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,
under the Supreme Courts Hamdi decision, al-Marri had the right to
challenge the factual basis of his detention at a hearing that satisfied
the constitutional requirements of procedural due process. See id. at
681-82. The district court referred the case to a magistrate judge to
determine what process was constitutionally due al-Marri under
Hamdi. See id. at 682.
In proceedings before the magistrate judge, al-Marri sought procedural protections similar to those afforded civilian criminal defendants, such as extensive discovery rights and an opportunity to crossexamine the governments sources, including high-level Department
188
of Defense officials. See ante at 83 & n.8. The magistrate judge

refused to provide al-Marri with these extensive protections, however,
and instead adopted incremental procedures consistent with the
burden-shifting approach outlined in Hamdi. See Al-Marri v. Wright,
443 F. Supp. 2d 774, 778-80 (D.S.C. 2006). First, it required the government to provide notice of the factual basis for al-Marris detention.
Next, if the government was able to produce credible evidence that
al-Marri was indeed an enemy combatant, the burden would shift to
al-Marri to rebut the governments evidence. Finally, the magistrate
judge noted that, if al-Marri met his burden by presenting "more persuasive evidence," the government would either have to release alMarri or participate in a "full-blown adversary hearing," which would
include "greater procedural and evidentiary safeguards" than the first
stage of the burden-shifting process. J.A. 191.
Pursuant to these procedures, the magistrate judge found that the
Rapp Declaration which, as described earlier, presented the governments evidence supporting al-Marris detention, see supra at 135
satisfied the governments initial burdens of providing al-Marri
with notice of the factual basis for his detention and producing credible evidence that al-Marri was indeed an enemy combatant. The magistrate judge then gave al-Marri sixty days to present rebuttal
evidence.
During this sixty day period, al-Marri protested that his ability to
respond to the Rapp Declaration was impeded by the fact that large
portions of the Declaration were classified and, therefore, unavailable
to him. The magistrate judge agreed with al-Marri and advised the
parties that, in determining whether an adversary hearing was necessary, he would only consider evidence disclosed to al-Marri. In
response to this ruling, the government filed an updated version of the
Rapp Declaration, with many portions declassified.
Al-Marri subsequently filed a response to the updated Rapp Declaration. In his response, al-Marri generally denied the governments
claims, but "decline[d] . . . to assume the burden of proving his own
innocence." Al-Marri, 443 F. Supp. 2d at 784. Claiming that the procedures developed by the magistrate judge were "unconstitutional,
unlawful, and un-American," al-Marri refused to offer any sort of
rebuttal to the governments evidence. Id.
189
Because al-Marri failed to offer "any evidence on his behalf," the

magistrate judge recommended the dismissal of al-Marris petition.
Id. at 785 (emphasis in original). The district court subsequently conducted a de novo review of the proceedings before the magistrate
judge, and over al-Marris objections, adopted the magistrate judges
recommendations in full. See id. Because al-Marri failed "beyond
question" to rebut his "classification and detention . . . as an enemy
combatant," the district court dismissed al-Marris habeas petition. Id.
B.
The district and magistrate judges handled this case admirably. I
can find no fault with their conclusion that the habeas proceedings
provided al-Marri satisfied Hamdis due process requirements.
As Hamdi made clear, a detainee held in the United States has the
right to challenge his classification as an enemy combatant.10 Though
not entitled to a full criminal trial, enemy combatants are entitled to
the "core" protections that constitute the "minimum requirements of
due process." Hamdi, 542 U.S. at 535, 538. These core procedural
rights are threefold: first, a detainee "must receive notice of the factual basis for his classification"; second, a detainee must have "a fair
opportunity to rebut the Governments factual assertions"; and, third,
the hearing must occur "before a neutral decisionmaker." Id. at 533.
The Hamdi opinion repeatedly makes clear that it is these three "essential constitutional promises [that] may not be eroded." Id.
Even a brief examination of al-Marris proceedings demonstrate
that he received the benefit of each of these "essential promises." To
begin, the district court was unquestionably a "neutral decisionmaker." Similarly, al-Marri certainly received sufficient "notice of the
factual basis for his classification." In fact, the magistrate explicitly
10
Specifically, Hamdi established a framework for adjudicating the

habeas petitions of "citizen-detainee[s]." Hamdi, 542 U.S. at 533.
Although both the government and al-Marri address the issue of whether
lawful aliens are entitled to the same level of protection as citizens, I
need not resolve the issue for the purposes of this case. This is because
the procedures provided al-Marri are sufficient under any reading of
Hamdi.
190
stated that he would only consider information made available to alMarri when determining whether al-Marri was indeed an enemy combatant.
To this end, the government put forth the Rapp Declaration, which
contained extensive evidence of al-Marris affiliation with al Qaeda
and his destructive designs. For instance, it alleged that al-Marri
attended an al Qaeda terrorist training camp in Afghanistan for fifteen
to nineteen months; that he subsequently cultivated personal relationships with the most senior members of the al Qaeda hierarchy, including Osama bin Laden, Khalid Shaykh Muhammed, and Mustafa
Ahmed al-Hawsawi; that he wanted to martyr himself for the al
Qaeda cause; and that he was planning to commit chemical and technological attacks in the United States. See supra at 135. This detailed
information certainly provided al-Marri with sufficient notice of the
factual basis for his detention.
Likewise, al-Marri was provided a "fair opportunity to rebut the
Governments factual assertions." The magistrate judge gave al-Marri
sixty days to respond to the Rapp Declaration, and stated that a "fullblown adversary hearing" would follow if al-Marri was able to adequately rebut the governments evidence. Since the government relied
almost exclusively on evidence directly imputable to him, al-Marri
had personal knowledge of the governments factual basis, and, therefore, ample ability to offer a meaningful response. Put simply, the
procedures developed by the magistrate judge provided al-Marri a
"fair" and "meaningful" opportunity to be heard in his own defense,
and thus were more than sufficient under Hamdi. Hamdi, 542 U.S. at
533.
The Supreme Courts recent decision in Boumediene does not
change this analysis. To begin, the Court in Boumediene explicitly
distinguished the question of what procedures are required under the
Suspension Clause from the question of what procedures are required
under the Due Process Clause. See Boumediene, slip op. at 55-56. In
doing so, the Court explicitly stated that it made "no judgment" as to
the issue addressed in Hamdi and presented by al-Marris case: what
process is constitutionally due to a detainee when "[t]he 2241
habeas corpus process remained in place." See Boumediene, slip op.
55, 56.
191
Thus, Hamdi is still the controlling opinion for our inquiry, and it
is therefore our duty to apply it. Moreover, even if Boumediene were
applicable to the matter before us, the process employed by the district and magistrate judges would still be constitutional. Al-Marri
received each of the protections required by Boumediene: (1) he was
given a "meaningful opportunity" to challenge the legal basis for his
detention, (2) his petition was considered by a court that had the
remedial power to order his release, and (3) he was granted the "ability to rebut the factual basis for the Governments assertion that he
is an enemy combatant." Boumediene, slip op. at 50-54. Al-Marri
benefitted from the assistance of counsel and was aware of the allegations against him from the very outset of his proceedings, and
Boumediene recognized these protections as necessary to the extent
they aid in challenging the factual 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-Marri would have received
the procedures that Boumediene could reasonably be read to impose
if he had sought to contest the governments allegations in some way.
It is true that Boumediene recognizes that both the ability to confront
witnesses and some limit on the governments use of hearsay evidence may be necessary to ensure that a detainee has the capacity "to
rebut the factual basis" for his detention. Id. at 54-55. But the Court
in Boumediene never indicated that it was establishing procedures to
be followed inflexibly in every case. See id. at 49-50, 57, 58 (noting
that the "extent of the showing required of the Government in these
cases is a matter to be determined"). Instead, the Court emphasized
that habeas corpus procedures must be "adaptable" so that they can
assure the petitioner a "meaningful opportunity" to contest the legal
and factual bases for his detention. Id. at 50-54. If al-Marri had cast
any doubt on the accuracy of his detention, there was every indication
that the magistrate and district judges would have done what was
needed to confirm or to dispel that doubt, including the provision of
those procedures that Boumediene could reasonably be read to
require. But severing the need for procedural protections from the
need to reach accurate determinations loses sight of the whole purpose of due process.
Thus, the problem here was not, as the concurrence alleges, a failure on the part of the lower court to provide al-Marri with constitu-
192
tionally adequate procedures, but rather the unwillingness of al-Marri

to participate in the process set forth under Hamdi in any meaningful
way. Neither the magistrate nor the district judge gave al-Marri short
shrift, and both were open to any evidence al-Marri had to offer.
Instead, al-Marri offered nothing. In fact, if a general denial were
deemed sufficient to bring the accuracy of the Declaration into question, then the whole Hamdi burden-shifting framework would be rendered useless. I thus find it remarkable that al-Marri now complains
about procedures he did not even attempt to utilize. Indeed, a civilian
criminal defendant cannot refuse to avail himself of the protections
offered him at trial and then claim a procedural due process violation;
there should be no reason to treat al-Marri any differently. As the district court correctly recognized, "[n]either 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." Al-Marri, 443 F. Supp. 2d at 785.
C.
Although al-Marri received the full benefit of Hamdis protections,
the concurrence argues that because al-Marri is not "a battlefield
detainee," he is entitled to more rigorous procedural safeguards than
those afforded him by the district court. See ante at 86-89. In particular, the concurrence contends that al-Marri has the right to "requir[e]
the government to demonstrate through the most reliable available
evidence that he is an enemy combatant." Ante at 93. Since the district court did not afford al-Marri this right, the concurrence insists
that the proceedings below were unconstitutional.
I cannot agree for two reasons. First, the battlefield/non-battlefield
distinction is not to be found in Hamdi and is unreflective of the realities of the current conflict. Second, the imposition of a "most reliable
available evidence" requirement rests on a misreading of Hamdi and
contradicts the basic tenets of procedural due process.
1.
I begin with the lynchpin of the concurrences opinion: the notion
that al-Marri is entitled to more rigorous procedural protections than
those guaranteed by Hamdi, because al-Marri was apprehended in the
193
United States, rather than on a foreign battlefield, and thus subject to

a higher risk of being erroneously detained. Ante at 86-89 & n.13.
This categorical imposition of different procedural requirements
based on a neat division between battlefield and homeland is unsound
for several reasons.
To begin, the battlefield/non-battlefield distinction is nowhere to be
found in Hamdi, the case on which the concurrence relies. See ante
at 86-90. Hamdis discussion of the constitutional requirements for
"enemy combatant proceedings" contains no limitation or qualification based on locus of capture. Hamdi, 542 U.S. at 533; see also id.
at 524 (framing the issue as "what process is constitutionally due a
citizen who disputes his enemy-combatant status"); id. at 532 (applying the Mathews framework to identify a process that "strikes the
proper constitutional balance when a United States citizen is detained
in the United States as an enemy combatant"). Indeed, Hamdi makes
plain that the procedures required in "the enemy-combatant setting"
apply equally to all enemy combatants, not just those captured on a
foreign battlefield. Id. at 535.
Furthermore, although the concurrence claims that the "risk of erroneously detaining a civilian" is "much greater inside the United States
than" on "a conventional battlefield within the borders of a foreign
country," this is often not the case. Ante at 90. Indeed, the modern
battlefield is often cluttered with shifting alliances and the lack of distinguishing uniforms. One only need to think of the villages in Vietnam or the hills of Afghanistan to recognize that discerning friend
from foe can be very elusive on a foreign battlefield.
Hamdis refusal to categorically distinguish detainees based on
their locus of capture reflects the true nature of the current conflict.
As Congress recognized in the AUMF and as the nature of the 9/11
attacks made pellucidly clear, the struggle against al-Qaeda is not
bound to foreign lands or distant shores. See supra at 173-75. The
need for legislatively sanctioned procedures in accordance with the
laws of war does not dissipate simply because an enemy combatant
is apprehended domestically rather than on a foreign battlefield. See
supra at 147-54. In fact, the concerns underlying the need for more
limited procedures in enemy combatant hearings, such as the presence
of highly sensitive information and the risk of such information being
194
transmitted to terrorist networks, confederates, and affiliates, is

equally, if not more, pronounced when dealing with a sleeper al
Qaeda agent operating within our borders.
Despite its contention to the contrary, see ante at 90 n.14, the concurrence thus commits the same error as the plurality: it categorically
rests its decision on an artificial distinction between battlefield and
non-battlefield capture. Indeed, it offers no other meaningful rationale
for distinguishing between the procedures approved of in Hamdi and
the procedures afforded al-Marri. See, e.g., ante at 85, 86-89 & n.13,
89-90. The Supreme Court has refused to resolve issues concerning
the process due enemy combatants based on the faux simplicity of
inflexible categories, and we should not deny the realities of contemporary conflict by contravening its directive.
2.
In addition to its distinction between battlefield and non-battlefield
detainees, the concurrence develops another procedural innovation:
the "most reliable available evidence" requirement. The requirement
posits that al-Marri has the right to require the government to produce
"the most reliable available evidence that he is an enemy combatant." Ante at 91. This requirement is just as problematic as the
attempt to dictate the appropriate level of procedure based on the
locus of capture.
In deriving this standard, the concurrence relies on the following
observation made in Hamdi: "[E]nemy combatant proceedings may
be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may
need to be accepted as the most reliable available evidence from the
Government in such a proceeding." Hamdi, 542 U.S. at 533-34; see
ante at 81, 88 (quoting Hamdi). Rather than take this comment for
what it clearly is an example of how the procedures afforded
enemy combatants need to account for the evidentiary burdens that
are frequently present in such cases the concurrence develops a
hardline requirement that the government must always show, in its
initial presentation, that the evidence offered is the most reliable evidence available.
195
Imposing a "most reliable available evidence" standard at the very

outset would be a fundamental misapplication of Hamdi. To begin,
this approach abandons the careful incrementalism and the actual
"burden-shifting scheme" set forth by the Supreme Court in that decision. Hamdi, 542 U.S. at 534. As discussed earlier, Hamdi only
requires the government to initially "put[ ] forth credible evidence
that the habeas petitioner meets the enemy-combatant criteria." Id.
The government need not put on further evidence unless the detainee
responds with at least some evidence that "he falls outside the
criteria." Id. By forsaking the framework envisioned by Hamdi, the
concurrence relieves al-Marri of any obligation to contest the factual
basis of his detention.
The concurrence, however, indicates that the Rapp Declaration
may be insufficient under Hamdi. This is simply not the case. Indeed,
Hamdi expressly recognized that the governments initial burden may
be satisfied by "a knowledgeable affiant" who "summarize[s]" the
evidence on which the detention was based. Hamdi, 542 U.S. at 534.
Likewise, Hamdi explicitly held that in an enemy combatant proceeding, "a habeas court . . . may accept affidavit evidence 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 Governments"
evidence. Id. at 538 (emphasis added). Because the Rapp Declaration
is far more extensive and detailed than the Mobbs Declaration, the
former satisfies the governments initial burden and serves the basic
purpose of affording notice to al-Marri of why he is detained.
Moreover, beyond being a misapplication of Hamdi, this "most
reliable available evidence" approach is also plainly contrary to the
fundamental tenets of procedural due process. As the Supreme Court
has repeatedly held, the touchstone of any due process inquiry must
be accuracy. Indeed, the imposition of additional procedural protections has traditionally been linked to the ability of those safeguards
to prevent erroneous deprivations of protected interests. 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, 489 U.S. 288,
313 (1989) (noting that due process requires the retroactive application of "procedures without which the likelihood of an accurate conviction is seriously diminished"); Laurence H. Tribe, American
Constitutional Law, 10-13, at 714 (2d ed. 1988) (noting that the
196
"value [of] procedural safeguards" is primarily determined by their

potential to minimize "factual error in the application of the relevant
substantive rules").
In order to allow for adjustments that help ensure accuracy, the
Supreme Court has consistently emphasized the need for flexible procedures that would permit district courts to employ protections pursuant to the "demands" presented by 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 "adaptable remedy," requiring more
protections in situations of greater factual uncertainty); Mathews, 424
U.S. at 334-35; Tribe, supra, 10-14, at 718 (noting that the Courts
"flexible approach" to procedural due process allows courts to apply
protections on a "case to case" basis). In fact, the Court has made
plain that due process never requires any "fixed" set of procedures
that cannot be adapted to the circumstances of the case at hand.
Mathews, 424 U.S. at 334 (quoting Cafeteria & 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 combatant detentions should be "both prudent and
incremental," with adjustments made only as the need for additional
protections became apparent in a given case. Hamdi, 542 U.S. at 539
(emphasis added).
By imposing a "most reliable available evidence" requirement on
the government at the very outset of a Hamdi hearing, the concurrence has adopted an approach that neglects these foundational principles of procedural due process. Indeed, by categorically applying its
additional requirement even though al-Marri has never cast the slightest bit of doubt on the accuracy of his enemy combatant status, the
concurrence fails to recognize that due process is first and foremost
about accuracy. And by forcing the government to produce the "most
reliable available evidence" at the outset of all cases involving nonbattlefield detainees, the concurrence diminishes the ability of district
courts to prudently and incrementally apply procedures based on the
particular circumstances and need for accuracy in the case at hand.
This approach threatens large consequences. As the concurrence
recognizes, the breadth of al-Marris procedural demands are staggering. Ante at 83 & n.8. Not only does al-Marri request the opportunity
197
to depose various government officials, including "high-level" officers in the Executive Branch, but he also seeks discovery of the following evidence:
all statements made by al-Marri; all documents relied upon
by Rapp or describing the sources of information referenced
in the Rapp Declaration; all documents upon which the government intended to rely; all documents upon which the
CIA, Department of Justice, Department of Defense, and the
President relied in determining whether al-Marri was an
enemy combatant; all documents describing the standard for
the designation; [ ] any exculpatory evidence; . . . [and] all
documents pertaining to interrogations and interviews conducted by United States officials or others acting on their
behalf.
Id.
The "most reliable available evidence" requirement would provide
al-Marri with access to this evidence unless the government demonstrated that its production was "impractical, outweighed by national
security interests, or otherwise unduly burdensome." Id. at 94. In
other words, under this approach, the default scenario would grant alMarri extensive discovery rights regardless of whether he could raise
even the slightest doubt as to the basis of his detention.
It is difficult to think of a more dangerous way to handle the highly
sensitive information that is invariably used to apprehend terrorist
sleeper agents such as al-Marri. The fuzzy "most reliable available
evidence" standard provides district courts with precious little guidance. Indeed, district courts are given little direction as to what constitutes the "most reliable available evidence" or as to the procedures
that should be used to make such a determination. Instead, district
courts are merely told to resolve these threshold evidentiary questions
to their "satisfaction." Id. at 94. This lack of clarity provides detainees
with nothing less than an invitation to engage in "graymail" and other
harassing tactics. See supra at 151.
Judge Gregory recognizes that the concurrences approach "will
leave the district court with more questions than answers." Ante at
198
100. He attempts, however, to resolve this uncertainty by suggesting

procedures of his own. In particular, he suggests that the district court
employ at the outset of proceedings an "in-camera, ex-parte hearing,"
modeled after circuit precedent and CIPA, to determine which evidence should be turned over to al-Marri. Id. at 109-112. While I
respect my good colleagues attempt to provide guidance for the district court on remand, I find the procedures he proposes to be equally
as problematic as those suggested by the concurrence. To begin, relying on CIPA at the outset risks transporting wholesale a statute specifically passed to address criminal prosecutions into the completely
different context of military detention. See, e.g., 18 U.S.C. app. III 8
(stating that the protections of CIPA are designed to "prevent unnecessary disclosure of classified information involved in any criminal
proceeding" (emphasis added)). As discussed earlier in Section II,
Congress passed the AUMF fully aware of the existence of CIPA, but
it nevertheless authorized the President to detain enemy combatants
because of the inherent limitations of the criminal justice system in
dealing with matters of war. Moreover, under this "in-camera hearing" approach, al-Marri is once again provided with all sorts of procedures before having to cast the slightest doubt on the accuracy of his
detention. There is simply no reason to risk, at the very outset of
every enemy combatant habeas proceeding and without any benefit in
ensuring accurate determinations, the extraordinary costs that may
result from the compelled disclosure of sensitive information.
Of course, the sorts of procedures requested by al-Marri and contemplated by the concurrences "most reliable available evidence"
requirement may eventually come into play in some Hamdi proceedings. So too may CIPA protections. But these procedures should only
be used if they are necessary 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 additional safeguards in
the enemy combatant setting has the "uncommon potential to burden
the Executive at a time of ongoing military conflict." Hamdi, 542 U.S.
at 533; Ernest A. Young, The Constitution Outside the Constitution,
117 Yale L.J. 408, 440 (2007). Granting al-Marri the benefit of additional protections, even though he has never used the procedures
available to him, and even though no evidence has emerged to suggest
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that these additional protections are needed, imposes procedural burdens without any indication that these burdens will produce a corresponding reduction in the likelihood of erroneous deprivation. Due
process simply does not require such a result.
D.
Process is of inestimable value to law. It is vital in ensuring fair
treatment to individuals, in preventing the arbitrary exercise of power
by the state, and in holding the vast arsenal of executive authority in
check. And yet, as with so much else, there is a balance. Taken to sufficient lengths, process can accomplish the dismemberment of meaningful democratic prerogatives and the frustration of vital substantive
ends. Taken too far, process can essentially paralyze public officials
in their attempts to promote the public welfare and, in this area, to
provide even the most basic assurances of public safety.
The Supreme Court in Hamdi sought to strike the balance between
the beneficial use of process, on the one hand, and its detrimental
overuse on the other. As noted, Hamdi placed the initial burden in
enemy combatant proceedings on the government, required the government to give notice of the factual basis for detention, and provided
the detainee with an opportunity to controvert the governments evidence before a neutral decisionmaker. At the same time, however,
Hamdi was keenly conscious of the need not to deprive the executive
and legislative branches of the tools to deal with the new danger in
our midst. Its seminal requirement is that the detainee place the governments evidence in some doubt before the refinements of the criminal justice process come into play. By relieving the detainee of that
threshold burden, we take at least the first initial steps toward making
Hamdi hearings ever more replicative of the criminal justice process
a process whose full and familiar regalia our profession may soon
enough adopt.
This would be a mistake. The transgressions that al-Marri is
accused of committing are not ordinary crimes, although both the plurality and the concurrence appear to treat them in varying degrees as
such. Instead, the destructive acts of 9/11 are more akin to warfare
than to crime. That was the view that Congress expressed in passing
the AUMF. That was the view the Supreme Court expressed in its
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Hamdi decision. Whether by declining to apply the AUMF or by casting aside the Hamdi framework, we move toward the criminal justice
model, the concurrence accomplishing procedurally much of what the
plurality attempts to accomplish substantively a limitation on the
elected branches ability to prosecute the ongoing struggle against
global terror in accordance with the laws of war. I am reluctant to
supplant the wisdom of others on so grave a matter with my own, and
I would hold that under the AUMF and in accordance with Hamdi,
al-Marri was accorded the process he was due the process which
he never once sought to utilize.
V. THE DETENTION OF AL-MARRI ACCORDS WITH
AMERICAS LEGAL TRADITION.
I wish finally to take a step back. In the aftermath of September 11,
judges have experienced their own distinctive tensions. As guardians
of the nations constitutional tradition, courts have struggled to avoid
placing a judicial imprimatur on anything inimical to the nations
priceless heritage of liberty and timeless respect for human rights. At
the same time, we dread seeing again the faces of the stricken and the
fallen, and being left to wonder if some grave constitutional miscalculation of our own played even some small part in sealing a fellow
countrymans sad fate. These conflicting concerns of sacrificing
values or jeopardizing lives are not absent in the debate over the
detention in al-Marris case.
Writing in the heyday of Jacksonian democracy, Alexis de Tocqueville sketched the elements of American life that he thought set us
apart: our devotion to the equality of man, our individualism, our
commitment to enterprise, our practice of religion, our profound patriotism, our commitment to a free press, and our devotion to the rule
of law. See Alexis de Tocqueville, Democracy in America (J.P. Mayer
ed., George Lawrence trans., Perennial Classics 2000). On this last
point, it is said, the last years of struggle have done their greatest
damage with "executive unilateralism" lessening our commitment
to due process, "mock[ing] the very notion of constitutionalism and
[making] light of any aspiration to live by the rule of law." Neal K.
Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the
Military Tribunals, 111 Yale L.J. 1259, 1259-60 (2002). Likewise, it
is alleged, a rejection of al-Marris petition in this case "would so
201
alter the constitutional foundations of our Republic," that it "would

have disastrous consequences for the Constitution and the country." Ante at 62-63. I do not think these indictments fair, and I believe
it essential to explain why al-Marris detention would leave the beacon of our constitutionalism bright and undimmed.
Any sound perspective on al-Marris detention must start with the
magnitude of what brought it on. It bears lasting remembrance that
what happened on September 11 was an attack upon the symbols of
American freedom and democracy. It was a three-thousand person
slaughter whose victims, going about their daily lives in an effort to
do something meaningful, were innocent of any wrong against those
who attacked them. The AUMF expressed this nations sorrow and
outrage at what happened. To credit its intended scope respects Congresss intention and those who died that day.
The notion that the military detention of suspected al Qaeda terrorists such as al-Marri somehow threatens to drag us even incrementally
towards the degraded level of our adversaries is simply unfathomable.
Al-Marris detention is one of only two domestic detentions of enemy
combatants conducted in the seven years since the 9/11 attacks. This
country has no equivalent of jihad, no appetite for suicide bombs in
public squares and markets, no thought of destroying places of worship, no intent to cause harm that is greater than necessary to defeat
a determined enemy. Military detention, circumscribed carefully by
the law of wars cardinal principle of discrimination, is no disproportionate response to those who aim to murder scores of thousands of
civilians; there is no moral equivalence, only contrast, and nothing in
our constitutional tradition makes the detention of terrorists with
strong al Qaeda ties unlawful simply because they prefer mass killings here rather than on some foreign battlefield. See Quirin, 317 U.S.
at 38.
The immense controversy over al-Marris detention obscures the
historical perspective. I do not mean to whitewash wrongs we have
committed in the last seven years Abu Ghraib stained and sullied
all we stand for; the governments roundup and detention of Muslim
immigrants in the immediate aftermath of 9/11 transgressed our commitment to due process and individualized consideration; and Guanta-
202
namo Bay has proven controversial, to be sure. We have stumbled on

an unknown landscape, and sometimes worse.
But consider, for example, the Red Scare and roundup of social
dissidents after World War I, or the internment of JapaneseAmericans during World War II, or the surge of McCarthyism during
the Cold War, or the bludgeoning of dissent during the last stages of
Vietnam. What makes those moments in our history so very sad was
that so much of the country approved of them. A fever took hold, and
minorities in our country often bore the brunt of it. But al-Marris
detention and the capture of al Qaeda members in our midst
presages no anti-Muslim rage, no attacks on Muslims basic rights of
free religious exercise and speech, no intent to deny our fellow citizens of Muslim faith inclusion in the American embrace. As the terrorist threat has persisted, there has been no demand for dragnet
measures that would sweep in innocent and culpable alike, and there
has been no demagogic figure attempting to demonize our friends of
Muslim faith at home because they may happen to share a loose
national or religious identity with enemies abroad.
Our domestic response to 9/11 has been, to judge by the magnitude
of the event and the lessons of history, largely measured. But that
alone does not carry the argument. Indeed, the reason for our measured response has not chiefly been executive forbearance, but rather
a faithfulness to the path laid down by our Founders, with all three
branches of our tripartite form of government playing their constitutionally assigned role in charting our course. See David A. Martin,
Judicial Review and the Military Commissions Act: On Striking the
Right Balance, 101 Am. J. Intl L. 344, 347-48 (2007) (noting the
"productive" "interbranch colloquy" that took place after 9/11).
The Constitution is not merely an assignation of rights; it is also
an allocation of authority. And it is the structural features of our Constitution that allowed a nation bemused in August to yet recover its
residue of fiber in September. Article II embodies the great and
immediate assertion of national will. It is the constitutional function
of the executive to act energetically in time of national peril; no other
branch of government is remotely capable of doing so. But executive
power can promote liberty through the provision of security, or it can
threaten liberty through the disregard of rights. So the balance must
203
be struck. In this regard, Separation of Powers does not mean Hostility of Powers. It is the obligation of each branch to check the excesses
of another, but each branch is equally obliged not to forsake its own
limitations in thwarting anothers legitimate role.
Rejection of al-Marris petition does not signal some pattern of surrender by a co-equal Congress and judiciary to a rampaging executive
branch. The legislative branch has not forfeited its constitutional function. In the last seven years, Congress has passed at least seven resolutions or statutes delineating the appropriate scope of our nations
response to the terrorist threat: the Authorization for Use of Military
Force in 2001, Pub. L. No. 107-40, 115 Stat. 224; the USA PATRIOT
ACT of 2001, Pub. L. No. 107-56, 115 Stat. 272, which was revised
and reauthorized in 2006, Pub. L. No. 109-177, 120 Stat. 192; Pub.
L. No. 109-178, 120 Stat. 278; the Authorization for Use of Military
Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116
Stat. 1498; the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135; the Detainee Treatment Act of 2005, Pub. L. No. 109148, 1001-06, 119 Stat. 2680, 2739-44; the Military Commissions
Act 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 Foreign Intelligence Surveillance Act of 1978. Those
who think these acts ceded too much power to the executive may be
right or they may be wrong. But they miss a crucial point: these congressional actions have been fought on "the boisterous ocean of political passions," see Letter from Thomas Jefferson to Monsieur DuPont
de Nemours, March 2, 1809, quoted in The Life and Selected Writings
of Thomas Jefferson 545 (Adrienne Koch & William Peden eds.,
1993), and while the results of any fight are never pleasing to everyone, it is precisely the way our system is supposed to work.
Nor would the rejection of al-Marris petition signal an atrophied
judicial role. The courts have been more actively involved in our current struggle than in any other war in our history. The amount of litigation surrounding the struggle against terrorism would have been
unthinkable in any prior conflict. By my count, well over two dozen
cases on the subject have been heard in federal court, including those
whose names are now familiar: Hamdi; Rasul; Hamdan; Padilla;
Moussaoui; Boumediene. The critics who see these decisions as too
supine may be right or they may be wrong. But as al-Marris appeal
204
shows, they have had their day and more in court, and that too is how
our system is supposed to work.
Al-Marris case like so many others in this struggle has been
for the judiciary one of deep silences. We may never know whether
we have struck the proper balance between liberty and security,
because we do not know every action the executive is taking and we
do not know every threat global terror networks have in store. So our
belief in ourselves and our institutions has to persevere in this unprecedented world of imperfect understanding where the definitions of
victory and progress and proportionate response are forever open to
debate.
I feel firmly, however, based on the facts presented, that al-Marris
petition should be dismissed. The executives decision to detain him
or any similarly situated member of al Qaeda, lawfully in this
country or not is a proportionate response targeted precisely at
those terrorists who slaughtered thousands of civilians on our soil and
threaten to do the same to tens of thousands more. His detention is
consistent with the law of war, and our constitutional requirements of
due process as well. It is a product of executive action that has been
legislatively sanctioned and it reflects the core understanding of our
constitutional system that at the end of the day, when momentous
questions of life and death are at stake, this nation places its deepest
bets upon democracy, and the peoples safety must reside and rest
with those who have the peoples sanction.
I do not mean to minimize the step of detaining militarily someone
of lawful status, seized within this country, and I have tried throughout to suggest the limits that the laws of war, the need for congressional sanction, and the requirement of some meaningful form of access
to the courts impose upon this executive practice. See Hamdi, 542
U.S. at 524-39. By reviewing the lawfulness of the detention, we confirm that there is access to the courts and that there are limits on
actions impinging liberty that can be taken in the name of national
security. By rejecting this petition, we would have the chance to recognize that the democratic branches have taken reasonable and constitutional steps to address unprecedented threats of unforeseeable
magnitude against our country.
205
It is possible to protect American values and American lives.

Indeed, this was the promise of our Founding, when a government
was "instituted among Men, deriving [its] just powers from the consent of the governed" in order to secure the "unalienable Rights" of
both "Liberty" and "Life." See Declaration of Independence para. 2
(U.S. 1776). I disagree with the result reached here, but I do so in the
belief that my colleagues have helped in some small way to demonstrate the good and earnest values that animate this country values
that require America prevail.
NIEMEYER, Circuit Judge, concurring in the judgment in part and
dissenting in part, as indicated herein:
After we received briefs and heard argument in this case, the
Supreme Court handed down its decision in Boumediene v. Bush, 553
U.S. ___, No. 06-1195 (June 12, 2008), holding that foreign nationals
detained at the U.S. Naval Station at Guantanamo Bay as enemy combatants under the Authorization for Use of Military Force ("AUMF"),
Pub. L. No. 107-40, 115 Stat. 224 (2001), have the privilege of habeas
corpus. Slip op. at 41. The Court also held that when judicial power
to issue habeas corpus is properly invoked by a detainee having the
habeas privilege, "the judicial officer must have adequate authority to
make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary,
an order directing the prisoners release." Slip op. at 58. The Boumediene Court rejected the governments argument that the Detainee
Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739, provided an adequate and effective substitute for habeas corpus and held
that the Acts limitation of habeas corpus violated the Suspension
Clause of the Constitution.
Focusing on the essential process to which such detainees are entitled, whether through habeas corpus or some other procedure that
Congress might provide, the Court stated that a detainee must have
a "meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law"
before a court that has "the power to order the conditional release of
an individual unlawfully detained" both of which are provided by
the habeas corpus process. Slip op. at 50 (internal quotation marks
omitted). Thus, the Court held, the process for designated enemy
206
combatants detained at Guantanamo Bay must provide the detainee

with the right to present exculpatory evidence and to supplement the
record, and the process must be administered by a court with authority
"to assess the sufficiency of the Governments evidence against the
detainee," "to admit and consider relevant exculpatory evidence," to
make determinations "in light of the relevant law and facts," "to correct errors that occurred during the [executive] proceedings," and to
issue appropriate relief, including release of the detainee. Slip op. at
57-58. In short, enemy combatants detained at Guantanamo Bay
under the AUMF must be provided the habeas corpus process or a
process closely equivalent to it. See slip op. at 63-64.
Because the Boumediene Court treated Guantanamo Bay as part of
the United States for the limited purpose of its holding, its holding,
a fortiori, extends also to persons detained in the United States as
enemy combatants under the AUMF.
In my judgment, the Supreme Courts holding in Boumediene disposes of the procedural issues before us. Because the district court in
this case afforded al-Marri the habeas corpus process and dismissed
his petition under procedures fully consistent with traditional habeas
corpus process, I would conclude that al-Marri has received all the
process he was due. And with respect to the district courts legal conclusion that al-Marri was properly detained, I agree generally with the
views expressed by Chief Judge Williams, Judge Wilkinson, and
Judge Traxler, and I specifically join in Part II of Judge Traxlers
opinion. Accordingly, I would affirm.
I
Al-Marri was initially arrested by civilian authorities pursuant to
charges of credit card fraud. While in civilian custody, however, the
President of the United States determined, on June 23, 2003, that alMarri was an enemy combatant because he was "closely associated
with al Qaeda"; he "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"; he possessed "intelligence about personnel and
activities of al Qaeda"; he represented a "continuing, present, and
grave danger to the national security of the United States"; and there-
207
fore it was necessary to detain him "to prevent him from aiding al
Qaeda in its efforts to attack the United States." Acting under the
authority of the AUMF, the President ordered the Attorney General
to deliver al-Marri to the Secretary of Defense to be detained "as an
enemy combatant." Al-Marri was then detained at the Consolidated
Naval Brig in Charleston, South Carolina.
On July 8, 2004, al-Marri filed a petition for a writ of habeas corpus in the district court under 28 U.S.C. 2241, alleging (1) unlawful
detention, (2) the right to counsel, (3) the right to be charged, (4) a
denial of due process, and (5) unlawful interrogation. His second and
fifth claims are no longer a part of his petition in this proceeding but
are now the subject of a separate civil action pending before the district court. In response to al-Marris petition, the district court entered
an order directing service of al-Marris petition upon the Commander
of the Consolidated Naval Brig and setting a date for his answer.
In his answer, the Commander asserted that al-Marris detention
under the AUMF was proper, based on the Presidents determination
that al-Marri was an enemy combatant. The answer included a copy
of the Presidents determination and order, as well as an affidavit
from Jeffrey N. Rapp, the Director of the Joint Intelligence Task
Force for Combating Terrorism (the "Rapp Declaration"), which
offered the specific factual basis for al-Marris classification as an
enemy combatant. Portions of the Rapp Declaration were redacted to
protect classified information.
Al-Marri filed a reply to the governments answer, generally denying the facts and challenging his detention as a matter of law. He also
requested a hearing to determine facts.
The district court first addressed the legal issues, and, assuming the
facts asserted by the government to be true, it concluded as a legal
matter that al-Marris detention was "proper pursuant to the AUMF."
Al-Marri v. Hanft, 378 F. Supp. 2d 673, 680 (D.S.C. 2005). But the
court left open al-Marris right to challenge the facts.
At a status conference before a magistrate judge, the court outlined
the procedure that would be followed to resolve al-Marris dispute of
the facts. By an order dated December 19, 2005, the magistrate judge
208
adopted an incremental factfinding approach based on the guidance

provided by the Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507
(2004). It required that al-Marri be given the governments factual
basis for his classification as an enemy combatant and a fair opportunity to rebut those facts with "more persuasive evidence." For this
purpose, the court indicated that it would accept affidavits from both
the government and al-Marri. The court stated that if al-Marri were
to make a showing "more persuasive" than the governments showing, it would then conduct a full-blown hearing to take evidence.
Although al-Marri had received a redacted copy of the Rapp Declaration, he objected that he had not received notice of the factual basis
for his detention because his attorneys were prohibited from discussing with him the classified portions of the Rapp Declaration. The district court expressed displeasure with the governments provision of
a redacted copy and gave the government the option of either relying
only on the unclassified portions of the Rapp Declaration or of allowing al-Marri access to the classified portions. In response, the government declassified most of the Rapp Declaration and accepted the
sanction that it could not rely on the remaining classified portions to
satisfy its burden.
In its summary, the declassified Rapp Declaration stated:
[Al-Marri] 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. 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. AlMarri 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
209
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-Marris relationship with and
activities on behalf of al-Qaeda has been obtained from and
corroborated by multiple intelligence sources.
The Declaration then proceeded, through 15 pages, to offer the highly
specific details. For example, it stated that: (1) "Al-Marri trained at
Bin Ladens Afghanistan terrorist training camps for 15-19 months
between approximately 1996 and 1998"; (2) although al-Marri allegedly entered the United States to pursue a graduate degree in computer science at Bradley University, "he had rarely attended classes
and was in failing status"; (3) al-Marri traveled to the United Arab
Emirates at al Qaedas request in August 2001, where he met with
Mustafa Ahmed al-Hawsawi, al Qaedas treasurer, at the Dubai airport and was provided with approximately $10,000 to $13,000 for his
travels and education in the United States, along with an additional
approximately $3,000 to purchase a laptop computer; (4) al-Marris
computer contained evidence that he was conducting research regarding the use of chemicals as weapons of mass destruction (providing
very detailed descriptions of the evidence found on the computer); (5)
al-Marris computer also contained records of e-mail drafts sent from
accounts registered to al-Marri to an account that has been linked to
Khalid Shaykh Muhammed, a known al Qaeda terrorist and mastermind behind the September 11 attacks (providing the exact language
of the messages); (6) al-Marris computer contained files of lectures
by bin Laden as well as lists of websites titled "Jihad arena," "Taliban," "Arabs new club Jihad club," "Tunes by bullets," and "martyrs," along with photographs of the attacks on the World Trade
Center, various photographs of Arab prisoners of war held by authorities in Kabul, an animated cartoon of an airplane flying at the World
Trade Center, and a map of Afghanistan; (7) calling cards attributed
to al-Marri were utilized after the terrorist attacks of September 11,
2001, to contact the United Arab Emirates telephone number of alHawsawi (providing very specific dates and details regarding where
210
and when the calls were made); (8) al-Marris computer case contained lists of credit card numbers and the details of the relevant cardholders, and his computer files contained over 1,000 other apparent
credit card numbers, along with lists of internet websites related to
computer hacking, fake drivers licenses and other fake identification
cards, buying and selling credit card numbers, and processing credit
card transactions; and (9) fraudulent purchases were made on several
of the credit card numbers in al-Marris possession, at a fraudulent
online business set up by an individual purporting to be named "Abdulkareem A. Almuslam," who had a signature in handwriting similar
to al-Marris, was identified by an eye doctor as actually being alMarri, and had fingerprints that matched al-Marris.
When al-Marri received this declassified Rapp Declaration (in
which only small portions remained redacted), he again objected
because he could not see the few passages that had been blacked out.
With respect to what was disclosed, he "respectfully decline[d]" to
come forward with evidence. Because al-Marri elected not to make
a factual showing, the magistrate judge prepared a report and recommendation to the district court based on al-Marris refusal to take
issue with the facts.
In the magistrate judges report and recommendation, he noted that
al-Marri had received most of the Rapp Declaration, with only a few
passages blacked out because they were classified, and stated that alMarri "ha[d] been given notice and opportunity, but ha[d] responded
with merely a general denial and an election not to further participate
in these proceedings." The judge noted that "[a]lthough [al-Marri]
apparently has evidence he believes relevant, he refuses to present it
before this court." The magistrate judge concluded:
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 Branchs actions and factual assertions in an
incremental and deliberate manner, it appears to the court
that the Executive Declaration is more persuasive than Petitioners general denial on the issue of whether the petitioner
211
meets the enemy combatant criteria, and there is no basis for

concluding that an erroneous deprivation has occurred.
Al-Marri filed objections to the magistrate judges report and recommendation, and the district court considered al-Marris petition for
writ of habeas corpus de novo. In its opinion, the court stated:
Despite being given numerous opportunities to come forward with evidence supporting this general denial, Petitioner
has refused to do so.
***
Petitioners refusal to participate at this stage renders the
Governments assertions uncontested. This leaves the Court
with "nothing specific . . . to dispute even the simplest of
assertions [by the Government] 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 magistrate judges report) (alterations and
omission in original). The court concluded:
Given Petitioners refusal to participate in the initial evidentiary process and his failure to offer any evidence on his
behalf, it is beyond question that he has failed to present
"more persuasive evidence" to rebut Respondents classification and detention of him as an enemy combatant. Further,
given the imbalance between the evidence presented by the
parties, the Government clearly meets any burden of persuasion which could reasonably be imposed on it at this initial
stage. Proceeding incrementally, as Hamdi directs, the Court
need go no further today. Accordingly, under Hamdis outline of the procedures applicable in enemy combatant proceedings, the Court finds that Petitioner has received notice
of the factual basis supporting his detention and has been
afforded a meaningful opportunity to rebut that evidence. As
a review of that evidence does not indicate that an "erroneous deprivation" has occurred, Hamdi, 542 U.S. at 534, this
petition should be dismissed.
212
Id. at 785. From the district courts order of dismissal, al-Marri filed
this appeal.
II
I conclude that the district court in this case provided al-Marri all
the procedure that was due. While the court was disposing of a habeas
corpus petition under 28 U.S.C. 2241, it also kept its focus on the
procedure described in Hamdi, the only guidance then available to the
district court for application of habeas corpus to detained enemy combatants. But it can be readily demonstrated that the procedure the district court provided al-Marri satisfied not only Hamdi but also 2241,
which the Court in Boumediene found to be sufficient.
A
Hamdi remains relevant to our consideration even in light of
Boumediene. While Boumediene considered whether the Detainee
Treatment Act was an adequate substitute for 2241 habeas corpus,
Hamdi considered the appropriate process due in a 2241 habeas
proceeding. See Boumediene, slip op. at 55 ("[Hamdi] does not control the matter at hand. None of the parties in Hamdi argued there had
been a suspension of the writ. Nor could they. The 2241 habeas corpus process remained in place"). As in Hamdi, the 2241 habeas corpus process "remain[s] in place" here.
In Hamdi, a plurality of the Court articulated that process which is
constitutionally owed to an American citizen seeking to challenge his
classification and detention as an enemy combatant. There, Yaser
Esam Hamdi, a United States citizen, was detained by the government
on allegations that he had taken up arms with the Taliban during the
conflict in Afghanistan. Hamdi had been seized in Afghanistan by
members of the Northern Alliance, a coalition of military groups
opposed to the Taliban, and was eventually turned over to the United
States military and detained as an enemy combatant. Hamdi, 542 U.S.
at 510. Subsequently, Hamdis father filed a petition for a writ of
habeas corpus under 28 U.S.C. 2241. Id. at 511.
Although Hamdis habeas petition contained no details regarding
the factual circumstances of his capture or detention, other documents
213
that were part of the record asserted that Hamdi "went to Afghanistan
to do relief work, and that he had been in that country less than two
months before September 11, 2001, and could not have received military training." Id. Furthermore, Hamdis father explained his view of
the case that Hamdi, who was 20 years old at the time, "was traveling on his own for the first time," and "[b]ecause of his lack of experience, he was trapped in Afghanistan once the military campaign
began." Id. at 511-12 (alteration in original). The sole evidence
offered by the government against Hamdi was contained in an affidavit from Michael Mobbs, the Special Advisor to the Under Secretary
of Defense for Policy (the "Mobbs Declaration"). Id. at 512.
In its review, a plurality of the Supreme Court first looked at
whether the detention of Hamdi, a U.S. citizen taken into custody in
Afghanistan as an enemy combatant, was authorized. Confining its
holding to the specific factual scenario before it and expressing no
view as to the bounds of the enemy-combatant category, id. at 516,
the plurality held that Congress authorized the detention of enemy
combatants, at least in the circumstances alleged in Hamdis case, id.
at 516-17.
The plurality then turned to the question of what process was constitutionally due a citizen who, in a habeas proceeding, disputed his
status as an enemy combatant, ultimately declining to adopt either the
narrow view of process advocated by the government or the broad
view advocated by Hamdi. Id. at 524-34. The plurality explained that
"[b]oth of [the] positions highlight legitimate concerns. And both
emphasize the tension that often exists between the autonomy that the
Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before
he is deprived of a constitutional right"; "[i]t is beyond question that
substantial interests lie on both sides of the scale in this case." Id. at
528, 529. Recognizing that "the risk of erroneous deprivation of a citizens liberty in the absence of sufficient process . . . [was] very real,"
id. at 530, the plurality held that a citizen-detainee seeking to challenge his classification as an enemy combatant must (1) "receive
notice of the factual basis for his classification"; (2) be given "a fair
opportunity to rebut the Governments factual assertions"; and (3)
have this process conducted "before a neutral decisionmaker," id. at
214
533. But the plurality was quick to point out the consequences of the
practical requirements attending the governments interests:
At the same time, the exigencies of the circumstances
may demand that, aside from these core elements, enemycombatant proceedings may be tailored to alleviate their
uncommon potential to burden the Executive at a time of
ongoing military conflict. Hearsay, for example, may need
to be accepted as the most reliable available evidence from
the Government in such a proceeding.
Id. at 533-34. In addition to allowing for hearsay in specified circumstances, the plurality recognized that a presumption in favor of the
governments evidence could be acceptable:
Likewise, the Constitution would not be offended by a presumption in favor of the Governments evidence, so long as
that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner
meets the enemy-combatant criteria, the onus could shift to
the petitioner to rebut that evidence with more persuasive
evidence that he falls outside the criteria.
Id. at 534. The plurality explained that such a burden-shifting scheme
"would sufficiently address the risk of an erroneous deprivation of
a detainees liberty interest," id. (quoting Mathews v. Eldridge, 424
U.S. 319, 335 (1976)), and would "meet the goal of ensuring that the
errant tourist, embedded journalist, or local aid worker has a chance
to prove military error while giving due regard to the Executive once
it has put forth meaningful support for its conclusion that the detainee
is in fact an enemy combatant," id.
Finally and particularly apropos here, the Hamdi plurality stated
that "a habeas court in a case such as this may accept [hearsay] affidavit evidence 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 Governments return." Hamdi, 542 U.S. at 538. Ultimately, the plurality envisioned "a factfinding process that is both
prudent and incremental." Id. at 539 (emphasis added).
215
Here, the government detained al-Marri, based on facts much better

developed and more detailed than those presented in Hamdi, and alMarri was given a habeas corpus process consistent with the process
described in Hamdi. He was given notice of the factual basis for his
designation as an enemy combatant and "a meaningful opportunity to
contest the factual basis for that detention before a neutral decisionmaker."*Hamdi, 542 U.S. at 509 (emphasis added).
First, as for notice, al-Marri was provided the Rapp Declaration,
which contained a full statement of the factual basis for the governments determination that he was an enemy combatant. The Rapp
Declaration set forth clearly and comprehensively the governments
theory of the case, providing specific details of the basis for the governments assertions.
Second, al-Marri was undoubtedly given "a fair opportunity to
rebut the Governments factual assertions." Hamdi, 542 U.S. at 533.
In its statements to the district court, the government invited and
urged al-Marri "to actually respond in a substantive way to the factual
allegations" made by the government, observing that "[t]his is [alMarris] opportunity to be heard on . . . his version of [the] events.
Thats the primary purpose for this process, as we read the Supreme
Courts Hamdi decision." (J.A. 132-33, 134). In addition, the district
court directed al-Marri to respond to the governments factual assertions. In its December 19, 2005 order, the court instructed al-Marri
"to file any rebuttal evidence [to the governments factual assertions]
*Al-Marri objects to the district courts denial of his motion for disclosure by the government of an array of sources and witnesses, and Judge
Traxlers opinion suggests al-Marri may be entitled to such discovery
even before placing any of the governments facts in dispute. But in a
factfinding process that is to be "both prudent and incremental," taking
into account the Executives unique interests in detaining enemy combatants during wartime, Hamdi, 542 U.S. at 539, it would be inappropriate
for us to consider these discovery requests without first requiring the
petitioner to at least constructively respond to the governments detailed
factual submission, particularly in a case such as this in which all relevant facts are within the petitioners personal knowledge. Absent some
credible theory to rebut the governments factual case, a court has no
basis to contemplate further steps such as discovery or an evidentiary
hearing.
216
within sixty days from the date hereof." Yet, al-Marri did not respond
in any substantive way. Even though he had been given the governments factual assertions indeed, many months before the court
ordered him to respond, during which time he had unmonitored
access to his attorneys he still refused to provide any explanation
to the court or to state his own version of the facts. Rather, his
response was simply to give a general denial and to decline further
engagement in the process.
In Hamdi, the plurality stated that "once the Government puts forth
credible evidence that the habeas petitioner meets the enemycombatant criteria" (which could be satisfied by a hearsay affidavit
such as the Rapp Declaration, see 542 U.S. at 533-34, 538), the burden shifts to the detainee "to rebut that evidence with more persuasive
evidence that he falls outside the criteria." Id. at 534 (emphasis
added). Al-Marri did not even attempt to carry this burden.
The Hamdi plurality explained that this burden-shifting scheme did
not impose a large burden on the detainee but rather was designed to
allow 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 combatants acts."
Id. at 535. Thus, this narrow focus required al-Marri only "to present
his own factual case to rebut the Governments return." Id. at 538
(emphasis added). Indeed, in this case, almost every important fact on
which the government relied was imputable to al-Marri directly and
could be responded to through his own personal knowledge.
For example, the Rapp Declaration cited specific dates and times
when the government alleged al-Marri was in specific places taking
specific actions all facts that would have been known to al-Marri
personally. Al-Marri could thus have contested or explained, among
other things: (1) the source of his financial support, if it was not alHawsawi, as alleged; (2) the assertions that he rarely attended his
graduate courses and was in failing status; (3) the allegations that his
laptop computer contained research regarding the use of chemical
weapons and poisons, as well as files concerning jihad and martyrdom, lectures of Osama bin Laden, and thousands of false credit card
numbers and other fraudulent financial documents; and (4) the facts
that he possessed and used telephone credit cards, telephone numbers,
217
and e-mail accounts connected to known al Qaeda operatives and

leaders. Because the accuracy of these facts would have been known
by al-Marri personally, he could have offered an explanation for or
denial of each, if the governments characterizations and explanations
were untrue. Yet, he chose to "respectfully decline" the district courts
"invitation" to respond to or contest them. His failure to rebut such
facts amounted to a total failure to meet his burden under the burdenshifting scheme of Hamdi. As a result, there was nothing specific
before the district court, and there remains nothing specific before our
court, to dispute even the simplest of assertions against al-Marri,
despite the fact that he was given "a fair opportunity to rebut the Governments assertions." Hamdi, 542 U.S. at 533.
Finally, the third prong of the process articulated in Hamdi was fulfilled. Al-Marri unquestionably received the opportunity to challenge
the governments factual assertions "before a neutral decisionmaker."
Hamdi, 542 U.S. at 533. A duly appointed and experienced federal
district court judge entertained al-Marris arguments regarding his
habeas petition, and ultimately decided to reject them and deny his
petition. There has been no allegation that the district court was in any
way biased. Indeed, the court gave al-Marri ample opportunity to
make his case.
In sum, al-Marri was given notice of the governments facts, allowing for a presumption in its favor under Hamdi; he was given a fair
opportunity to respond to the asserted facts; and his proceeding in
which he could contest the facts was before a neutral decisionmaker.
This is all of the process that was due him under Hamdi.
B
Although the district court in this case was functioning under 28
U.S.C. 2241 and was attempting at the same time to accommodate
the process described in Hamdi, the process it actually afforded alMarri readily comported with both 2241 and Hamdi, thus including
the elements described as essential in Boumediene.
The Boumediene Court allowed that some process short of that
required by 2241 process could be sufficient. Slip op. at 64 (stating,
"we do not hold that an adequate substitute must duplicate 2241 in
218
all respects"). It nonetheless found essential in any process employed

that (1) the petitioner be given the opportunity to submit exculpatory
evidence and to supplement the record on review; and (2) the court
have authority to assess the sufficiency of the governments evidence,
to receive the petitioners exculpatory evidence, to supplement the
record, to correct errors in the executive process, and to grant relief,
including release of the detainee. Slip op. at 57-58, 63.
The process in this case readily fulfilled these minimum requirements. Indeed, it satisfied all of those imposed by 28 U.S.C. 22412243.
Al-Marri was given a detailed 15-page statement of the facts
stated under oath on which the government was relying. Even
though most, if not all, of the facts were within al-Marris personal
knowledge, he elected not to dispute them or present other facts, giving instead only a general denial and a refusal to participate further
in the process. Likewise, he did not request that anything further be
included in the record. Thus, his challenge amounted to only a legal
challenge to the AUMF and the Presidents right to detain him under
the AUMF. Nevertheless, he was given the opportunity to raise factual disputes, and the court would have resolved them with a factual
hearing, as it so advised al-Marri. The district court, operating under
2241, had the full authority to receive evidence from al-Marri and
to supplement the record, and it urged al-Marri to respond to the facts.
The court also understood that it had authority to rule that the
detainment was illegal as a matter of law. With that authority, it
devoted an entire memorandum to the issue, denying al-Marris legal
challenge. Had it sustained al-Marris arguments, the court, as a
habeas court, surely had the authority under 2241 to fashion appropriate relief, including release. Indeed, it exercised this power at an
earlier stage when it sanctioned the government by excluding consideration of classified information. In short, the courts process in this
case was fully compliant with the essential process described in
Boumediene.
In addition, the district court comported fully with the process
required by 2241. Section 2243 requires that al-Marris custodian be
ordered to file an answer (a "return"), "certifying the true cause of the
219
detention." That order was issued in this case and the government
filed an answer, providing the "true cause of the detention."
Section 2243 also requires a hearing at which the detainee is present, "[u]nless the application for the writ and the return present only
issues of law." This too was satisfied. Since al-Marri raised no issue
of fact, the hearings before the magistrate judge involved only legal
arguments.
Section 2243 requires that al-Marri be afforded the opportunity, by
affidavit or otherwise under oath, to deny facts or to assert other facts.
This opportunity was given him, but al-Marri opted not to take advantage of it.
Finally, 2243 requires the court to "dispose of the matter as law
and justice require." This the court did. In disposing of the matter as
law and justice required, the district court accepted the governments
facts as true it had no others before it and concluded, based on
those facts, that as a matter of law al-Marri was legally detained by
the President under the AUMF.
Al-Marri received the process described in Hamdi, Boumediene,
and 28 U.S.C. 2241-2243. That he elected not to contest facts to
require their further development was his choice, not a denial of process. And on his purely legal challenge he received a full hearing with
a reasoned disposition.
III
With respect to the legal question decided by the district court that
al-Marri was legally detained under the AUMF based on the facts the
government presented, I agree with the opinions of Chief Judge Williams, Judge Wilkinson, and Judge Traxler, which conclude that,
based on the Rapp Declaration, the President had the power to detain
al-Marri as an enemy combatant under the AUMF and that the President lawfully exercised that power in detaining al-Marri. I specifically
join Part II of Judge Traxlers opinion, laying out the reasons.
IV
Accordingly, I concur in that part of the judgment affirming the
district courts conclusion that the President possessed the legal
220
authority under the AUMF to detain al-Marri as an enemy combatant

and that he did so in accordance with the AUMF. I dissent, however,
from the decision to vacate the district courts dismissal order and to
remand this case to the district court to provide al-Marri with more
process to contest his detention. In my judgment, because al-Marri
has already received a 2241 habeas process, such a remand order
leads only to duplicative process, unnecessarily protracting the constitutionally fair and adequate process that the district court already provided al-Marri.
Accordingly, I would affirm the judgment of the district court.
DUNCAN, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority of my colleagues today that, if the Governments allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant. However,
with Hamdi as a guidepost, I am unable to conclude that the process
afforded al-Marri thus far was insufficient. Indeed, the governments
evidence, in the form of the Rapp Declaration, was far more detailed
than that proffered in Hamdi. Further, as noted by Chief Judge Williams and Judge Niemeyer, the magistrate judge and the district court
in fact accommodated al-Marris only specific requestthat the Rapp
Declaration be substantially declassified to provide him with better
notice of the factual basis for his detention. In the face of the Rapp
Declarations specific and comprehensive allegations (which, as Chief
Judge Williams and Judge Niemeyer point out, relate to matters
uniquely within al-Marris knowledge), it is al-Marris unilateral and
absolute refusal to participate in the incremental process suggested by
Hamdi that warrants affirmance. For that reason, with due respect for
the varying views presented by my colleagues, I also concur in the
separate opinion authored by Chief Judge Williams.

Al-Marri v. Pucciarelli, 534 F.3d 213, 4th Cir. (2008)

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Vacated and remanded by the Supreme Court for dismissal as moot, March 6, 2009

UNITED STATES COURT OF APPEALS

NATIONAL ASSOCIATION OF CRIMINAL

Appeal from the United States District Court

Reversed and remanded by published per curiam opinion. Judge Motz

RIGHTS FIRST, New York, New York; Jennifer Daskal, HUMAN

and ordered that al-Marris military detention cease. See Al-Marri v.

REVERSED AND REMANDED

We would also grant al-Marri habeas relief. Even assuming the

Although our preferred disposition does not command a majority

on al-Marris behalf in the District of South Carolina. On September

Numerous amici have submitted briefs to us, both on the jurisdictional

itary detention. Al-Marri acknowledges that the Government can

unless in respect of our citizens." United States v. Curtiss-Wright

Hence, the case at hand involves and we limit our analysis to

Furthermore, the Supreme Court has never permitted an exception to

combatant. Under the habeas procedure prescribed in Hamdi, if the

shareholder of an American corporation that built equipment used by

Chief Judge Williams and Judge Wilkinson each take a different

scope of the AUMF as construed by precedent and considered in light

Thus, "civilian" is a term of art in the law of war, not signifying an

In Hamdi, the Supreme Court looked to precedent and the law of

See White House Fact Sheet: Status of Detainees at Guantanamo

we describe," that is, individuals who were "part of or supporting

Although our opinion discussed Padillas association with al Qaeda,

the "laws and usages of war," 71 U.S. at 121-22, justified exercising

Because of this important principle, the Supreme Court has hailed

enemy combatants individuals (1) who affiliated with and fought on

In doing so, the Government acknowledged, Opening Br. for the

Thus, the Government is mistaken in its representation that Hamdi

conflict, but also it improperly suggests that the Supreme Court

The Supreme Court did not hold in Boumediene or Hamdan that

combatant does not exist in non-international conflicts, the law of war

To be sure, enemy combatants may commit crimes just as civilians

The distinction between organizations and nations is not without

do just this. There, the Court acknowledged that Milligans conduct

century ago, the Government similarly contended that the military

authorize the use of force against "al Qaeda, al-Marris organization,"

We note that the Governments treatment of al-Marri, i.e., subjecting

expansion of the Executives military detention power in mind when

Judge Wilkinson challenges our reliance on legislative history. Post

Power and the National Security Agencys Surveillance Authority:

detention for a limited time pending deportation or trial, accompanied

Judge Williams acknowledges that the Patriot Act prohibits indefinite

sidered enemy combatants."); post at 162, 173 (Wilkinson, J.,

The concurrence takes a different view, apparently contending that

For an amorphous definition like that proposed by Judge Williams,

Nor do the difficulties with Judge Wilkinsons approach end with

In response to this assertion, Judge Wilkinson surprisingly contends

oral arguments espoused Judge Wilkinsons criteria either as a basis

that al-Marri is a civilian, and our Constitution demands, not prefers,

Judge Wilkinson also contends that the military detention of al-Marri

Id. The Government nowhere suggests that the Presidents inherent

wrote these words in 1957, it explained that "[t]he country ha[d]

Constitution and the country. For a court to uphold a claim to such

fore, we concur in the per curiam opinion reversing and remanding

The offenses consisted of one count of possession of 15 or more

States], would aid [United States] efforts to prevent attacks by al

afforded any process by which he can challenge his detention or his