No. 06-7427 N THE UNTED STATES COURT OF APPEALS FOR THE FOURTH CRCUT AL SALEH KAHLAH AL-MARR, and MARK A. BERMAN, as next frend, FLED, US Court of Appeals 41h Qmu_ V. Pettoners-Appellants, COMMANDER S.L. WRGHT, U.S.N. Commander, Consoldated Naval Brg, Respondent-Appellee. ON APPEAL FROM THE UNTED STATES DSTRCT COURT FOR THE DSTRCT OF SOUTH CAROLNA BREF FOR THE RESPONDENT-APPELLEE PAUL D. CLEMENT Solctor General REGNALD. LLOYD Unted States Attorney Dstrct of South Carolna GREGORY G. GARRE Deputy Solctor General DAVD B. SALMONS Assstant to the Solctor General * KEVN F. MCDONALD Assstant Unted States Attorney CLARE J. EVANS Attorney, U.S. Department of Justce Crmnal Dvson, Appellate Secton Washngton, D.C. 20530 V w_'3 "_ < :S y?-.-; C)
TABLE OF CONTENTS JURSDCTONAL STATEMENT... l STATEMENT OF THE SSUES... 2 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 5. Con_ess's Authorzaton for Use of Mltary Force (AUMF)... 5. The Factual Bass for Al-Marr's Mltary Detenton... 7. The Dstrct Court Proceedngs... 12 SUMMARY OF ARGUMENT... 16 ARGUMENT... 19. The Presdent Has Authorty to Detan A1-Marr As An Enemy Combatant Durng Ongong Hostltes... 19 A. A1-Marr's Detenton s Authorzed by the AUMF... 20 1. Hamd and Padlla compel the concluson that al-marr's detenton s authorzed by Congress and s consttutonal... 20 2. The AUMF does not requre a "clear statement" to authorze detenton of enemy combatants arrested n the Unted States... 30 3. The PATROT Act and federal crmnal statutes do not lmt the detenton authorty of the AUMF... 33 --
B The Presdent, n Hs Capacty As Commander n Chef, Has nherent Consttutonal Authorty To Order Al-Marr's Detenton... 35. The Hamd Classfcaton Framework Apples To Ths Case And More Than Satsfes Any Due Process Rghts A1-Marr Mght Have... 39 go The Hamd Burden-Shftng Framework Provdes Ample Due Process Protectons... 40 Bt The Hamd Framework Protects Due Process Rghts Regardless of the Locus of Capture... 43 C. A-Marr s Not Enttled to Dscovery Aganst the Government or an Evdentary Hearng at ths Stage of the Ham_ Proceedng... 48 D The Consttuton Does Not Requre the Excluson of Hearsay Evdence or the Cross-Examnaton of Wtnesses at ths Stage of the Hamd Proceedng... 51 CONCLUSON... 60 STATEMENT REGARDNG ORAL ARGUMENT... 61 CERTFCATE OF COMPLANCE... 62 CERTFCATE OF SERVCE... 63 --
TABLE OF AUTHORTES CASES Al-Marr v. Rumsfeld, 543 U.S. 809 (2004)... 4 Al-Marr v. Rumsfeld, 360 F.3d 707 (7th Cr. 2004)... 4 A1-Marr v. Bush, 274 F. Supp. 2d 1003 (C.D. ll. 2003)... 4 A1-Marr v. Hanf[., 443 F. Supp. 2d 774 (D.S.C. 2006)... 5 A1-Marr v. Hanf., 378 F. Supp. 2d 673 (D.S.C. 2005)... 4 Bra._ v. Gramley, 520 U.S. 899 (1997)... 48 Brown v. Unted States, 12 U.S. (8 Craneh) 110 (1814)... 32, 38 Department of Navy v. E_g._., 484 U.S. 518 (1988)... 50 Duncan v. Kahanamoku., 327 U.S. 304 (1946)... 22, 31 E a_glesv. Unted States ex rel. Samuels, 329 U.S. 304 (1946)... 42 Ex Parte Endo, 323 U.S. 283 (1944)... 32, 38 Ex Pane Mllgan, 71 U.S. (4 Wall.) 2 (1866)... 28 Ex pane Ourn, 317 U.S. 1 (1942)... passm Garlotte_ v. Fordce, 515 U.S. 39 (1995)... 42 H_mdan v. Rumsfeld, 126 S. Ct. 2749 (2006)... 23 Hamd v. Rumsfeld, 542 U.S. 507 (2004)... passm Hamd v. Rumsfeld, 316 F.3d 450 (4th Cr. 2003)... 36 --
Ham.d v. Rumsfeld, 296 F.3d 278 (4th Cr. 2002)... 36 Harsades v. Shaughnessy, 342 U.S. 580 (1952)... 36 Harrs v. Nelson, 394 U.S. 286 (1969)... 48 n re Guantanamo Detanee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005)... 29 Johnson v. Esentrager, 339 U.S. 764 (1950)... 21, 22, 37 Johnson v. Zerbst, 304 U.S. 458 (1938)... 42 Khald v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005)... 29 Lttle v. Barreme., 6 U.S. (2 Cranch) 170 (1804)... 32 Ludecke v. Watkns, 335 U.S. 160 (1948)... 22, 37 Mathews v. Daz, 426 U.S. 67 (1976)... 29, 36 Mathews v. Eldrdge, 424 U.S. 319 (1976)... 40, 42, 44 Padlla v. Hant_, 432 F.3d 582 (4th Cr. 2005)... 26 Padlla v. Han_, 423 F.3d 386 (4th Cr. 2005)... passm Rasul v. Bush, 542 U.S. 466 (2004)... 29 The Prze Cases, 67 U.S. (2 Black) 635 (1862)... 36 Unted States v. _ 353 F.3d 281 (4th Cr. 2003)... 53 Unted States v. Verdugo-Urqudcz, 494 U.S. 259 (1990)... 29 User_ v. Turner Elkhorn Mnng Co., 428 U.S. 1 (1976)... 45 Walker v. Johnson, 312 U.S. 275 (1941)... 42 -v-
Wllams v. Kaser, 323 U.S. 471 (1945)... 42 Youngstown Sheet & Tube Co. v. Sa_._a a_._, 343 U.S. 579 (1952)... 20, 38 Zadvydas v. Davs., 533 U.S. 678 (2001)... 31, 37 CONSTTUTONAL PROVSON U.S. Const. Art., 2, el. 1... 35 8 U.S.C. 1226a(a) 18 U.S.C. 1001 18 U.S.C. 1014 18 U.S.C. 1028(a)(7)... 3 18 U.S.C. 1029(a)(3)... 3 28 U.S.C. 1291... 2 28 U.S.C. 1331... 28 U.S.C. 2241... l 28 U.S.C. 2253(a)... 2 Alen Enemy Act of 1798, 50 U.S.C. 21... 22, 32, 38 Authorzaton for the Use of Mltary Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)... passm -V-
Mltary_ Commssons Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006)... 2, 35 PATROT Act (Untng and Strengthenng Amerca by Provdng Approprate Tools Requred to ntercept and Obstruct Terrorsm Act of 2001)... 33 Fed. R. Evd. 807... 53 MSCELLANEOUS Detenton of Enemy Combatants n the War on Terror, 150 Cong. Rec. $2701 (daly cd. March 1, 2004)... 7 Fnal Report of the Natonal Commsson on Terrorst Attacks U non the Unted States... 8, 9, 28 Mchael Dobbs, Saboteurs: The Naz Rad on Amerca (2006)... 26 Mltary_ Order, 66 Fed. Reg. 57,833 (Nov. 13, 2001)... 6 Pettoner's Bref, Hamd v. Rumsfeld (U.S. No. 03-6696), 2004 WL 378715... 30 Pettoner's Reply Bref, Hamd v. Rumsfeld (U.S. No. 03-6696), 2004 WL 865270... 30, 33 Pettoner-Appellee's Bref, Padlla v. Hanft (4th Cr. No. 05-6396), 2005 WL 1410172... 33 -v-
N THE UNTED STATES COURT OF APPEALS FOR THE FOURTH CRCUT No. 06-7427 ALl SALEH KAHLAH AL-MARR, and MARK A. BERMAN, as next frend, Pettoners-Appellants, COMMANDER S.L. WRGHT, U.S.N. Commander, Consoldated Naval Brg, Respondent-Appellee. ON APPEAL FROM THE UNTED STATES DSTRCT COURT FOR THE DSTRCT OF SOUTH CAROLNA BREF FOR THE RESPONDENT-APPELLEE JURSDCTONAL STATEMENT Pettoners-Appellants Al Saleh Kahlah al-marr and Mark A. Berman, as next frend, (herenafter, al-marr) nvoked the jursdcton of the dstrct court by flng a petton for a wrt of habeas corpus pursuant to 28 U.S.C. 2241. The dstrct court, whch had jursdcton under 28 U.S.C. 1331 and 2241, entered V.
judgment on August 9, 2006, dsmssng al-marr's petton. A1-Marr fled a tmely notce of appeal on August 18, 2006. Ths Court had subject matter jursdcton pursuant to 28 U.S.C. 1291 and 2253(a). As explaned n respondent's moton to dsmss for lack of jursdcton, however, the Mltary Commssons Act of 2006 0VCA), Pub. L. No. 109-366, 120 Star. 2600 (2006), removed subject matter jursdcton over ths acton. STATEMENT OF THE SSUES 1. Whether the Presdent has authorty under the Consttuton and Congress's Authorzaton for Use of Mltary Force (AUMF) enacted n the wake of the September 1 l, 2001, attacks to order the mltary to detan al-marr--an alenmas an enemy combatant durng the ongong hostltes. 2. Whether the ncremental factfndng proceedng that the dstrct court provded al-marr pursuant to Hamd v. Rumsfeld, 542 U.S. 507 (2004), satsfes any due process rghts he may have n ths habeas proceedng. STATEMENT OF TlE CASE A-Marr, a ctzen of Qatar, entered the Unted States on September 10, 2001, and was taken nto custody by federal authortes on December 12, 2001, as a materal wtness n the government's nvestgaton of the September 11 attacks. He was charged n February 2002 n the Southern Dstrct of New York n a one- 2
l count federal ndctment wth possesson of 15 or more unauthorzed or counterfet access devces wth ntent to defraud, n volaton of 18 U.S.C. 1029(a)(3), and was subsequently charged n a sx-count federal ndctment wth makng false statements to the Federal Bureau of nvestgaton (FB), n volaton of 18 U.S.C. 1001; makng false statements n a bank applcaton, n volaton of 18 U.S.C. 1014; and usng means of dentfcaton of another person for the purposes of nfluencng the acton of a federally nsured fnancal nsttuton, n volaton of 18 U.S.C. 1028(a)(7). n May 2003, al-marr was transferred to the Central Dstrct of llnos on hs own moton, and was charged there n a new federal ndctment wth the same offenses. J.A. 28-30. On June 23, 2003, the Presdent determned that al-marr s an enemy combatant n the ongong conflct aganst al Qaeda based on, nter ala, hs assocaton wth al Qaeda and conduct consttutng hostle and warlke acts, and ordered the Department of Defense to take custody of al-marr from the Department of Justce and detan hm as an enemy combatant. J.A. 54. That day, on the government's moton, all federal crmnal charges aganst al-marr were dsmssed wth prejudce. A1-Marr was transferred to mltary control and taken to the Naval Consoldated Brg, Charleston, South Carolna, where he has snce been detaned. J.A. 30-31.
On July 8, 2003, al-marr's counsel fled a petton for a wrt of habeas corpus on hs behalf n the Unted States Dstrct Court for the Central Dstrct of llnos. The dstrct court granted the government's moton to dsmss for mproper venue. 274 F. Supp. 2d 1003. The Unted States Court of Appeals for the Seventh Crcut affrmed, 360 F.3d 707, and the Supreme Court dened al- Marr's petton for a wrt of certorar, 543 U.S. 809. On July 8, 2004, al-marr fled the present petton for a wrt of habeas corpus, clamng, nter ala, that hs detenton wthout crmnal charge volates the Consttuton and laws of the Unted States. J.A. 13-27. On March 3, 2005, he moved for summary judgment on the consttutonal and statutory authorty clams. The dstrct court dened the moton on July 8, 2005, fndng that al-marr's "detenton s proper pursuant to the AUMF" assumng "that all the facts asserted by [the government] are true." J.A. 123, 125, reported at 378 F. Supp. 2d 673. The dstrct court referred the case to a magstrate judge to provde al-marr a "far opportunty to rebut the Government's factual assertons before a neutral decsonmaker," consstent wth Hamd v. Rumsfeld, 542 U.S. 507, 533 (2004). On December 19, 2005, the magstrate judge ssued an order establshng an ncremental procedure for adjudcatng al-marr's habeas petton consstent wth Hamd. J.A. 186-193. The Government frst provded notce of the facts 4
supportng ts classfcaton decson by affdavt. A1-Marr was then provded an opportunty to present hs verson of the facts, but he "declne[d]." J.A. 231. On May 8, 2006, the magstrate judge recommended that al-marr's petton be dened because al-marr had not presented anythng that ndcated that he had been erroneously classfed as an enemy combatant. J.A. 233-249. The dstrct court, followng de novo revew of al-marr's objectons, adopted the recommendaton of the magstrate judge and dsmssed al-marr's petton. J.A. 340-355, reported at 443 F. Supp. 2d 774. n partcular, the dstrct court adopted the magstrate judge's fndng that al-mard had "squandered hs opportunty to be heard by purposely not partcpatng n a meanngful way." J.A. 354. The dstrct court entered judgment on August 9, 2006, J.A. 356, and al- Marr fled a tmely notce of appeal on August 18, 2006, J.A. 358. On November 14, 2006, respondents moved to dsmss ths appeal for lack of jursdcton under the MCA. That moton s the subject of separate brefng. STATEMENT OF FACTS. Congress's Authorzaton for Use of Mltary Force (AUMF) On September 11,2001, the Naton suffered the most deadly attack on Unted States sol n the Naton's hstory. One week later, Congress enacted the AUMF, whch provdes legslatve support for the Presdent's use of"all necessary
and approprate force aganst those natons, organzatons, or persons he determnes planned, authorzed, commtted, or aded the terrorst attacks that occurred on September 11, 2001 * * * n order to prevent any future acts of nternatonal terrorsm aganst the Unted States by such natons, organzatons or persons." Pub. L. No. 107-40, 115 Star. 224 (2001). The AUMF recognzes the Presdent's "authorty under the Consttuton to deter and prevent acts of nternatonal terrorsm aganst the Unted States," and explans that, because the forces responsble for the September 11 attacks "contnue to pose an unusual and extraordnary threat to the natonal securty and foregn polcy of the Unted States," t s "both necessary and approprate that the Unted States exercse ts fghts to self-defense and to protect Unted States ctzens both at home and abroad." d., Preamble. Soon after the enactment of the AUMF, the Presdent made t express that the September 11 attacks "created a state of armed conflct" wth al Qaeda. Mltary Order, 66 Fed. Reg. 57,833, l(a) (Nov. 13, 2001). n the course of that armed conflct, the Unted States mltary has sezed and detaned numerous persons whom the Executve has determned are enemy combatants n the ongong conflct wth al Qaeda, ncludng al-marr. 6
. The Factual Bass for A-Marr's Mltary_ Detenton A-Marr s a ctzen of Qatar, who arrved n the Unted States on September 10, 2001. After an extensve Executve Branch evaluaton process, 1 the Presdent, as "Commander-n-Chef of the U.S. armed forces," made a formal determnaton on June 23, 2003, that al-marr "s, and at the tme he entered the Unted States n September 2001 was, an enemy combatant." J.A. 54. The Presdent found, n partcular, that al-marr s "closely assocated wth al Qaeda;" that he "engaged n conduct that consttuted hostle and war-lke acts, ncludng conduct n preparaton for acts of nternatonal terrorsm wth the am to cause njury to or adverse effects on the Unted States;" that he "possesses ncludng ntellgence about personnel and actvtes of al Qaeda that, f communcated ntellgence, to the U.S., would ad U.S. efforts to prevent attacks by al Qaeda on the Unted States or ts armed forces, other governmental personnel, or _ The Executve Branch evaluaton ofal-marr's case was essentally the same as that used for suspected ctzen enemy combatants. J.A. 214-215; see generally 150 Cong. Rec. $2701, $2703-$2704 (daly ed. March 11, 2004). That evaluaton ncludes recommendatons from the Drector of the Cental ntellgence Agency (CA), the Secretary of the Department of Defense (DoD), and the Attorney General based on ntellgence obtaned from the CLA, DoD, FB, and the Crmnal Dvson of the Department of Justce (DO J), and a legal opnon analyzng whether the ndvdual can approprately be desgnated an enemy combatant from the DOJ's Offce of Legal Counsel. All of the recommendatons and ntellgence are provded to the Presdent for hs determnaton of whether the ndvdual should be detaned as an enemy combatant. J.A. 215. 7
ctzens;" that he "represents a contnung, present, and grave danger to the natonal securty of the Unted States;" and that hs "detenton s necessary to prevent hm from adng al Qaeda n ts efforts to attack the Unted States." J.A. 54. The government has presented factual support for that determnaton n the declaraton of Jeffery Rapp, Drector of the Jont ntellgence Task Force for Combatng Terrorsm. J.A. 213-227. -_ The Rapp Declaraton recounts some of al-marr's acts on behalf of al Qaeda. t states that between 1996 and 1998, al-marr receved tranng at an al Qaeda terrorst tranng camp n Afghanstan, where he learned about the use of posons. n the summer of 2001, he was ntroduced to Osama Bn Laden by Khald Shaykh Muhammed (KSM), the "mastermnd of [the] 9/11 attacks, ''3-/and volunteered "for a martyr msson or to do anythng else that al Qaeda requested." J.A. 216-218. -_' The government attached classfed and unclassfed versons of the Rapp Declaraton to ts response to the petton for a wrt of habeas corpus, and the dstrct court entered a protectve order to ensure the proper handlng of the classfed portons of the declaraton. After a subsequent classfcaton revew, substantal portons of the declaraton were declassfed and a redacted unclassfed verson of the orgnal classfed Rapp Declaraton was provded to al-marr on Aprl 5, 2006. See J.A. 213-227. All references heren are to the Aprl 5, 2006 verson of the declaraton. tl See Fnal Report of the Natonal Commsson on Terrorst Attacks Upon the Unted States (9/11 Commsson Report), Appendx B, Table of Names.
A1-Marr was drected to enter the Unted States before September 1, 2001, to serve as a "sleeper agent," "facltat[e] terrorst actvtes subsequent to September 11,"and "explore computer hackng methods to dsrupt bank records and the U.S. fnancal system." He was consdered an "deal sleeper agent for the Unted States, because [he] had completed hs undergraduate degree n the Unted States, had no known crmnal record, and had a famly wth whom he could travel." f he could not enter the Unted States before September 1 lth, al-marr was nstructed to "cancel all plans and go to Pakstan." J.A. 216-218. n July 2001, al-marr contacted the unversty n llnos where he had receved hs undergraduate degree and seemed, accordng to school offcals, "n a rush to commence [graduate] studes n the Unted States" durng the Fall semester. n August 2001, he traveled to the Unted Arab Emrates, where he met Mustafa Ahrned Al-Hawsaw, the "fnancal and travel facltator for [the] 9/ 1 plot, '_' who gave hm about $3,000 to buy a laptop computer and about $10,000- $13,000 n fundng authorzed by KSM. J.A. 216-219. On September 10, 2001, al-marr entered the Unted States wth hs famly. n the aftermath of the September 11 attacks, he was ntervewed by the FB on 4_/See 9/11 Commsson Report, Appendx B, Table of Names. 9
October 2, 2001, and December l 1, 2001. By December, he "had rarely attended classes" at the unversty and "was n falng status." J.A. 217, 219. After the December ntervew, FB agents recovered a laptop computer and ts recent recept from al-marr's resdence. The laptop had "hghly techncal nformaton" about cyandes and other posonous chemcal concentratons denoted "mmedately dangerous to lfe and health" stored on t n amounts that "far exceed[ed]" the amount of nformaton that would quell "the nterests of a merely curous ndvdual." t also had webstes bookmarked as "favortes" that had "step-by-step nstructons to make hydrogen cyande," "techncal and medcal descrptons of the effects of varous cyandes," "data on the[r] doses and lethal effects," and "orderng nformaton on varous cyandes." The use of hydrogen cyande, "an exceedngly toxc substance," was taught at terrorst tranng camps n Afghanstan. J.A. 219-220. The computer also ncluded nformaton whch ndcated that al-marr had undertaken efforts to obtan false dentfcaton, credt-card, and bankng nformaton. There were "numerous computer programs typcally utlzed by computer hackers; proxy computer software whch can be utlzed to hde a user's orgn or dentty when connected to the nteract; and bookmarked lsts of favorte webstes apparently devoted to computer hackng." There were also "over 1,000 10
apparent credt card numbers * * * stored n varous computer fles," webstes bookmarked about "fake dentfcaton cards; buyng and sellng credt card numbers; and processng credt card transactons," and a handwrtten lst n the computer carryng case wth about thrty-sx credt card numbers, owners, and expraton dates. There was also evdence that al-marr had set up bank accounts for a fraudulent busness and used the stolen credt card numbers to make fraudulent payments to that busness. See J.A. 223,224-226. Forensc examnaton of the computer revealed coded communcatons saved as draft e-mal messages whch were addressed to an nternet emal account lnked to KSM. Telephone records also revealed that al-marr called the Unted Arab Emrates repeatedly n the days followng September 11, each tme to a telephone number lnked to A1-Hawsaw. He had also saved on hs computer several "Arabc lectures by Bn Laden and hs assocates on the mportance of jhad and martyrdom, and the merts of the Talban regme," drectons to terrorst tranng camps n Afghanstan, and webstes ttled "Jhad arena," "martyrs," and "Talban." Also on the computer were photographs of the September 11 attacks, an "anmated cartoon of an arplane flyng at the World Trade Center," and mages of"arab prsoners of war held by authortes n Kabul." J.A. 220-224. 11
n sum, there was sgnfcant evdence that "al-marr s an al Qaeda 'sleeper' agent sent to the Unted States for the purpose of engagng n and facltatng terrorst actvtes subsequent to September 1," that he had taken actons aganst the Unted States whle n the country, and that he "must be detaned to prevent hm from adng al Qaeda n ts efforts to attack the Unted States, ts armed forces, other governmental personnel, or ctzens." J.A. 216, 227. H. The Dstrct Court Proceedngs On July 8, 2004, al-marr fled a petton for a wrt of habeas corpus, seekng an order "drectng Respondent to charge [al-marr] wth a crmnal offense or to release hm." J.A. 25. The government responded that al-marr was lawfully detaned as an enemy combatant under the AUMF and the Consttuton and attached the Rapp Declaraton as evdence supportng the Presdent's determnaton n that regard. J.A. 28-66. Al-Marr fled a traverse on February 14, 2005, argung agan that the government lacked authorty to detan hm as an enemy combatant and seekng, n the alternatve, "the rght to see all the government's nculpatory evdence * * *, to obtan from the government and present exculpatory evdence, to confront and cross-examne the government's wtnesses aganst hm, and to compel the government to prove ts case by clear and convncng evdence." J.A. 70, 87, 98. 12
Al-Marr moved for summary judgment on hs clams that the government lacked statutory and consttutonal authorty to detan hm as an enemy combatant, argung that he could not be a "combatant" because he was arrested n the Unted States, havng never fought n Afghanstan. J.A. 115. The dstrct court dened the moton on July 8, 2005, fndng that the scope of the AUMF reached al-marr, assumng the government's factual allegatons were true. J.A. 112-126. The dstrct court referred the case to a magstrate judge to conduct a "prudent and ncremental" factfndng process consstent wth the framework outlned by the pluralty n Hamd, so that al-marr would have an opportunty to contest the government's factual allegatons. J.A. 125-126. After brefng, the magstrate judge ordered that the partes follow an ncremental procedure whch essentally tracked the language of Hamd. J.A. 186-193; see Hamd, 542 U.S. at 533-534. Frst, the government would provde notce of the factual bass for al-marr's classfcaton as an enemy combatant. J.A. 190. Then, al-marr would need to come forward wth more persuasve evdence that he had been mproperly classfed as an enemy combatant. J.A. 191. fal-marr was "unable to produce more persuasve evdence than that produced by the government, the nqury w[ould] end" and the petton would be dsmssed. J.A. 191. f, on the other hand, al-marr was able to adequately "rebut the 13
government's ntal showng, * * * [he would] be released unless the government [agreed to] proceed[.] to a full-blown adversary hearng before a neutral decsonmaker." J.A. 191. The magstrate judge deferred determnaton of the precse rules whch would apply to that hearng, notng that t would "be accompaned by greater procedural and evdentary safeguards" than the frst stage, though not necessarly "the full panoply of procedures applcable to a tral." J.A. 191. The magstrate judge found that, under Hamd, the Rapp Declaraton satsfed the government's ntal burden to provde notce to al-marr of the bases for hs detenton as an enemy combatant and ordered al-marr to submt hs rebuttal. J.A. 192. n response, al-marr generally dened that he s an enemy combatant, but "declne[d] at ths tme the Court's nvtaton to assume the burden of provng hs own nnocence" by presentng evdence n support of hs clam, assertng that requrng hm to rebut the government's showng would be "unconsttutonal, unlawful and un-amercan." J.A. 199. The magstrate judge recommended the dsmssal of al-marr's habeas petton n a report and recommendaton fled May 8, 2006. J.A. 233-249. Because al-marr had "refused to partcpate n any meanngful way" n the Hamd process, the magstrate judge found that "the Executve Branch Declaratons [that 14
al-marr s an enemy combatant] overwhelmngly preval," because there s "nothng specfc" to contradct "even the smplest of [the Rapp Declaraton's] assertons whch al-marr could easly dspute, were they not accurate." J.A. 243-244, 246. For example, the magstrate judge noted, al-marr had faled to specfcally rebut, or explan allegatons such as those nvolvng the source of hs fnancal support, hs sparse attendance and falng status at graduate school, the presence of poson research, Bn Laden materals, and false credt card numbers on hs laptop, and hs use of telephone numbers and emal accounts connected to known al Qaeda operatves and leaders. J.A. 245-246. "At the very least," the magstrate judge concluded, "these un-rebutted facts demonstrate the lack of any effort on the part of [al-mard] to establsh the falsty of the Executve Branch Declaraton, to demonstrate the possblty of an erroneous deprvaton, or otherwse to meet hs burden of persuason" under Hamd. J.A. 246. A-Marr fled objectons wth the dstrct court, argung that the procedure appled by the magstrate judge was defcent because t dd not account for hs status as a lawful Unted States resdent, as opposed to an ndvdual "captured durng combat on a foregn battlefeld." J.A. 274 (quotng Hamd, 542 U.S. at 516). Followng de novo revew, the dstrct court overruled al-marr's objectons, adopted the magstrate judge's report, and dsmssed the petton. J.A. 340-355. 15
The dstrct court found that the Hamd framework appled to al-marr's case because t apples to all challenges mounted by "alleged enemy combatants" regardless of the locaton of ther capture. J.A. 344. The dstrct court further found that the procedure followed by the magstrate judge necessarly protected al- Marr's due process rghts as an alen because t followed the Hamd framework, whch the Court found suffcent for a challenge by a ctzen combatant. Therefore, hearsay could be used to satsfy the Government's ntal "burden of provdng an alleged enemy combatant wth notce of the factual allegatons aganst hm," and al-marr had no rght to cross-examnaton or dscovery n makng hs ntal response. J.A. 349. The court also adopted the fndng of the magstrate judge that al-marr had "squandered hs opportunty to be heard by purposely not partcpatng n a meanngful way." J.A. 354. Ths appeal followed. SUMMARY OF ARGUMENT The dstrct court properly dsmssed al-marr's habeas petton on the merts.. The Presdent's authorty to detan "enemy combatants" durng the current conflct wth al Qaeda has been recognzed by the Supreme Court n Hamd v. Rumsfeld, 542 U.S. 507 (2004), and ths Court n Padlla v. Hanft, 423 F.3d 386 (4th Cr. 2005). As those decsons make clear, Congress, n passng the 16
AUMF n the wake of the September 11 attacks provded legslatve support for the Presdent's use of all "necessary and approprate force," ncludng detenton of enemy combatants, to "protect Unted States ctzens both at home and abroad" from "future acts of nternatonal terrorsm aganst the Unted States." 115 Star. 224. The Supreme Court's and ths Court's pror constructon of the AUMF govern ths case and compel the concluson that the Presdent s authorzed to detan al-marr as an enemy combatant. ndeed, because both Hamd and Padlla nvolved ctzen combatants, the authorty recognzed n those decsons apples, a forton, to alen combatants such as al-marr. The Presdent properly determned that al-marr s an enemy combatant because he engaged n, and contnues to pose a very real threat of carryng out, such acts of nternatonal terrorsm aganst Unted States ctzens "at home." He s a Qatar ctzen who alled hmself wth al Qaeda, receved fundng and tranng from al Qaeda, and traveled to the Unted States on orders from al Qaeda to serve as a sleeper agent and facltate further terrorst attacks aganst the Unted States from wthn. Well-settled law recognzes that alens who "assocated wth the mltary arm of the enemy, and wth ts ad, gudance, and drecton entered ths country bent on commttng hostle acts on Amercan sol" are enemy combatants. 17
See Ex parte Ourn, 317 U.S. 1, 38-38 (1942). As Q urn makes clear, enemy combatants do not earn mmunty by crossng our borders to do us harm.. A1-Marr was provded an ample opportunty to challenge hs enemy combatant classfcaton n ths habeas acton that more than satsfes any due process fghts he may have. The process provded by the dstrct court s consstent wth that approved n Hamd for use n enemy combatant challenges by ctzen detanees. Al-Marr, as an alen detanee, certanly does not qualfy for greater protectons merely because he was captured on Unted States sol. See Padlla, 423 F.3d at 390-391. Padlla was also captured on Unted States sol, but ths Court recognzed n Padlla that the Hamd decson stll governed. The same s true here. A-Mard faults the ncremental procedure outlned by the pluralty n Hamd because, at ts frst stage, t authorzes the use of hearsay evdence and does not provde an opportunty for cross-examnaton or dscovery. Ths Court, though, s bound by the holdng of the Hamd pluralty that the "prudent and ncremental" procedure t outlned provdes suffcent due process protectons even for ctzen enemy combatants. The dstrct court approprately dsmssed al-marr's habeas corpus petton when, after the government had satsfed ts burden under the Hamd f'amework, al-marr, despte beng gven numerous opportuntes, faled to 18
provde any evdence to rebut the government's showng. A1-Marr not only was afforded more than enough process under the Hamd framework to satsfy any due process rghts he may assert, but the fact that he repeatedly refused to aval hmself of that process makes hm sngularly ll-suted ARGUMENT to be argung for more process here.. THE PRESDENT HAS AUTHORTY TO DETAN AL-MARR AS AN ENE_fk' COMBATANT DURNG ONGONG HOSTLTES As the dstrct court found, the Presdent s authorzed to detan alens as enemy combatants when they, lke al-marr, traned wth al Qaeda and then "entered ths country to contnue the battle that the September 11th hjackers began on Amercan sol." J.A. 123. That concluson follows drectly from the Supreme Court's decsons n Qurn and Hamd, as well as ths Court's decson n Padlla. The latter decsons recognze that the Presdent was provded specfc legslatve authorzaton to capture and detan enemy combatants n the AUMF. Moreover, that statutory authorty correlates wth the Presdent's nherent consttutonal durng an armed conflct. authorty as Commander n Chef to detan enemy combatants n drectng the detenton of a-marr, the Presdent was therefore actng wth both statutory and consttutonal authorty,.e., at the zenth 19
of hs powers. See Youngstown Sheet & Tube Co. v. Sa a_a_a, 343 U.S. 579, 643-644 (1952) (Jackson, J., concurrng). A. A-Marr's Detenton s Authorzed by the AUMF 1. Hamd and _Padlla compel the concluson that a-marr's detenton s authorzed by Congress and s consttutonal The Supreme Court, n Hamd., and ths Court, n Padlla., confrmed that Congress expressly authorzed the Presdent as Commander n Chef to seze and detan enemy combatants for the duraton of the conflct wth al Qaeda. Hamd, 542 U.S. at 516 (pluralty opnon); d. at 587-588 (Thomas, J., dssentng) (agreeng that Congress authorzed detenton); Padlla, 423 F.3d at 390-391. The Hamd Court valdated, as consttutonal and wthn the authorty of the AUMF, the detenton of a presumed Unted States ctzen who "was 'part of or supportng forces hostle to the Unted States or coalton partners' n Afghanstan and who 'engaged n an armed conflct aganst the Unted States' there." Hamd, 542 U.S. at 516 (pluralty opnon) (ctaton omtted). Ths Court valdated, as also consttutonal and wthn the authorty of the AUMF, the detenton of a Unted States ctzen arrested on Unted States sol who was "closely assocated wth al Qaeda," fought for al Qaeda n Afghanstan, and "thereafter traveled to the Unted States for the avowed purpose of further prosecutng that war on Amercan sol, 20
aganst Amercan ctzens and targets." PadUa, 423 F.3d at 389, 391. Because t s well-establshed that alens lke al-marr are enttled to lesser consttutonal protectons than ctzens lke Hamd and Padlla, and because al-marr entered the Unted States wth tranng, fundng, and orders from al Qaeda "to contnue the battle that the September 11 th hjackers began on Amercan sol," J.A. 123, t follows a fortor from Hamd and Padlla that al-marr's detenton s also consttutonal and authorzed by the AUMF. The detenton of alen enemy combatants s a common ncdent of warfarenmuch more common than the detenton of a Naton's own ctzens--and especally n the context of a war launched by an attack on our own sol by alen combatants dentcally stuated to al-marr, there s nothng exceptonal about capture and/or detenton takng place n the Unted States. As the pluralty n Hamd explaned, the "capture and detenton of lawful combatants and the capture, detenton, and tral of unlawful combatants, by 'unversal agreement and practce,' are 'mportant ncdent[s] of war.'" 542 U.S. at 518 (quotng _, 317 U.S. at 28); accord d. at 587-588 (Thomas, J., dssentng); see Johnson v. Esentrager, 339 U.S. 764, 786 (1950) ("Ths Court has characterzed as 'well-establshed' the 'power of the mltary to exercse jursdcton over * * * enemy bellgerents [and] prsoners of war'") (quotng 21
Duncan v. Kahanamoku, 327 U.S. 304, 313 (1946)). The authorty s especally clear where the combatant s an alen. See d. at 774 ("[e]xecutve power over enemy alens, undelayed and unhampered by ltgaton, has been deemed, throughout our hstory, essental to war-tme securty"); Ludecke v. Watkns, 335 U.S. 160, 173 (1948) (statng that the Presdent s "entrusted * * * wth the dsposton of alen enemes durng a state of war")f _ Mltary detenton s not "punshment" but s nstead a means to ''prevent captured ndvduals from returnng to the feld of battle and takng up arms once agan." Hamd, 542 U.S. at 518 (.pluralty). Preventve detenton s such "a fundamental ncdent of wagng war" under "longstandng law-of-war prncples" that the Hamd pluralty found t authorzed by the AUMF even though "the AUMF does not use specfc language of detenton." d,. at 519, 521 (pluralty) ("Congress' grant of authorty for the use of 'necessary and approprate force' [n 51 The Ludecke and Esentrager cases nvolved the Alen Enemy Act, 50 U.S.C. 21, whch does not have drect applcaton to ths case. Nevertheless, the cases make clear that durng wartme, alens, whether or not resdent n the Unted States, are "consttutonally" subject to dfferent treatment than ctzens. See Esentrager, 339 U.S. at 775. The Esentrager Court addtonally noted that "[a]t common law alen enemes have no rghts, no prvleges, unless by the kng's specal favour, durng the tme of war." d. at 774 n.6 (ctaton and nternal quotaton marks omtted); see also Hamd_ 542 U.S. at 558-559, 575 n.5 (Scala, J., dssentng) (ctng, nter alao the Alen Enemy Act and Esentrager to demonstrate dfferent treatment provded alen and ctzen detanees n wartme). 22
the AUMF] nclude[s] the authorty to detan for the duraton of the relevant conflct."); d. at 587 (Thomas, J., dssentng). Hamd, followed by ths Court n Padla, makes clear that the AUMF consttutonally provded the Presdent authorty to detan enemy combatants for the duraton of the current conflct. Al-Marr argues that he s not an "enemy combatant" because he was arrested "nsde the Unted States, far from any actve battlefeld," unlke Hamd and Padlla who had, at some pont, engaged n combat on an "actve battlefeld" as "members of the armed forces." Br. 20-24. But that argument gnores the nature of the September 11 attacks, whch trggered the passage of the AUMF, the explct language of Hamd and Padlla, and the legal background aganst whch the AUMF was enacted. Each affrms the commonsense prncple that an enemy combatant may be captured and detaned n the Unted States when he has come to the Unted States to attack the country from wthn. The enemy s not enttled to mmunty smply because he has entered our terrtory to attack us at home; the September 11 attacks underscore the very real threat posed by alen enemy combatants wthn our borders. _ 6_, As the dstrct court recognzed, nothng n Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), erodes the force of Hamd's concluson that the AUMF authorzes the capture and detenton of enemy combatants. n Hamdan, the Court held that the AUMF dd not authorze the mltary commsson at ssue, but the Court took t as a gven that Hamdan was subject to detenton as an enemy combatant durng ongong 23
There can be no serous doubt that Congress, n passng the AUMF, sought to authorze the use of "all necessary and approprate force" aganst alens who have come to the Unted States to take an actve part n al Qaeda terror operatons. The AUMF emphaszes that t s "necessary and approprate * * * to protect Unted States ctzens both at home and abroad" because the ndvduals and groups responsble for the "acts of treacherous volence" that were commtted on September 11 "contnue to pose an unusual and extraordnary threat to the natonal securty * * * of the Unted States." 115 Star. 224 (emphass added). The ndvduals drectly responsble for carryng out those attacks were alens who entered the Unted States to carry out al Qaeda orders and who were n ther "home[s] nsde the Unted States" n the days before the September 11 attacks. Clearly, then, Congress ntended that the AUMF reach other alens who have also entered the Unted States to carry out volent, harmful, war-lke acts on Unted States sol aganst Unted States ctzens on behalf oral Qaeda. ndeed, al-marr's readng of the AUMF reles on the absurd noton that when Congress authorzed the use ofrnltary force to respond to the September 11 attacks t dd not ntend to reach ndvduals dentcally stuated to the September 11 hjackers, none of whom had engaged n combat operatons aganst our forces on a foregn battlefeld. t hostltes. 24
would also preclude the use of mltary force at the precse moment when the threat of a repeat of September 11 s at ts greatest: when traned al Qaeda agents have successfully crossed our borders and are preparng to carry out an act of war aganst our ctzens on al Qaeda's behalf. Congress's response to the brutal attacks of September 11 and effort to prevent ther repeat was not so feckless. A1-Marr unsuccessfully tres to lmt Hamd's authorty to detan enemy combatants to "armed Talban solder[s] captured on a battlefeld n Afghanstan who [were] 'part of or supportng forces hostle to the Unted States or coalton partners n Afghanstan and who engaged n armed conflct aganst the Unted States there.'" Br. 20 (quotng Hamd, 542 U.S. at 516). The Hamd pluralty made clear, however, that t was not lmtng the category of"enemy combatants" to such ndvduals, but was nstead descrbng the ndvdual before the Court. The pluralty explctly left "[t]he permssble bounds of the category [of enemy combatant to] be defned by the lower courts as subsequent cases are presented to them." Hamd, 542 U.S. at 522 n. 1. Moreover, n Padlla, ths Court, after confrontng a vrtually dentcal effort to lmt Hamd to ts facts, found that an ndvdual who was "closely assocated wth al Qaeda" and was "sezed on Amercan sol" "unquestonably qualfe[d] as an 'enemy combatant'" because he had "t[aken] up arms on behalf of [al Qaeda]" and had thereafter "crossed our 25
borders wth the avowed purpose of attackng ths country and ts ctzens from wthn [lke the] persons who commtted the atroctes of September 11." Padlla, v. Hanfl, 432 F.3d 582, 586 (4th Cr. 2005); Padlla., 423 F.3d at 389, 391. As recognzed by ths Court n Padlla, the legal background aganst whch Congress passed the AUMF further confrms that ts enemy combatant detenton authorty reaches alens who "assocated wth the mltary arm of the enemy, and wth ts ad, gudance, and drecton entered ths country bent on commttng hostle acts on Amercan sol." 423 F.3d at 392 (ctng _, 317 U.S. at 37-38). n _ the Supreme Court recognzed that the "unversal agreement and practce" among natons s that enemy combatants are "subject to capture and detenton [durng wartme]," 317 U.S. at 30-31, and rejected any suggeston that the detanees were "any less bellgerents f, as they argue, they have not actually * * * entered the theatre or zone of actve mltary operatons," d. at 38. The "enemy bellgerents" n _ had been traned "at a sabotage school near Berln, Germany * * * n the use of explosves" and had then traveled to the Unted States wth fundng from the German Hgh Command n order "to destroy war ndustres and war facltes n the Unted States." d. at 21.71 The saboteurs buffed ther 7/Whle the _ opnon does not address the ssue, t appears that only two of the saboteurs "were formally enrolled n the German army." Mchael Dobbs,.Saboteurs: The Naz Rad on Amerca 204 (2004). 26
unforms upon arrval n the Unted States and "proceed[ed] n cvlan dress" to New York and Chcago, where they were arrested. bd. Far f'om provdng a bass for mmunty, the Court cted ther attempt to look lke cvlans as a reason n favor of accordng them "the status of unlawful combatants"--t was by posng as cvlans that they ntended to mantan ther cover n the Unted States untl they were able to "comm[t] hostle acts nvolvng destructon of lfe or property." d,. at 35. Therefore, the Court concluded, t was "wthout sgnfcance that [they] were not alleged to have borne conventonal weapons or that ther proposed hostle acts dd not necessarly contemplate collson wth the Armed Forces of the Unted States." d. at 37. The saboteurs had "passed our mltary and naval lnes and defenses or went behnd those lnes, n cvlan dress and wth hostle purpose" and had "remaned upon our terrtory n tme of war" seekng to commt "hostle acts" aganst the country. d. at 37-38. They were, therefore, "enemy bellgerents." bd. sl Smlarly, ths Court, applyng _, whch was reaffrmed n Hamd, has found that the "locus of capture" n the Unted States s "rrelevant" to enemy t Hstory shows that, notwthstandng the fact that hundreds of thousands of captured alen enemy combatants were detaned n the Unted States durng World War, _ s the only reported decson n whch an alen enemy combatant mantaned a habeas acton seekng release durng wartme. And, n _, the alen enemy combatant's clams were dened. 27
combatant status. Padla, 423 F.3d at 393. As ths Court recognzed, an enemy combatant "poses the same threat of returnng to the battlefeld" when captured n the Unted States as he would f captured abroad. bd. ndeed, the rsk of returnng to the "battlefeld" n the current conflct s especally pronounced gven al Qaeda's persstent efforts to move the "battlefeld" to Unted States sol, and ts success n dong so on September 11, 2001. See, c._g_.,9/11 Commsson Report, Chapter 5, "A1 Qaeda Ams at the Amercan Homeland." Al-Marr relcs on dcta n Ex Parte Mllgan, 71 U.S. (4 Wall.) 2, 120-121 (1866), that the "Consttuton * * * covers wth the sheld of ts protecton all classes of men, at all tmes, and under all crcumstances," to argue that hs locus of capture n the Unted States requres that he be gven "the same fght to be charged and tred as all ctzens arrested n the Unted States." Br. 29. Hs relance s msplaced as ths Court and the Supreme Court have both held that Mllgan does not apply to enemy combatant challenges. Padlla, 423 F.3d at 396-397; see Hamd, 542 U.S. at 523 (Qurn "both postdates and clarfes Mllgan," provdng "the most apposte precedent" for enemy combatant challenges). And al-marr's presence at an al Qaeda tranng camp and entrance nto the Unted States just a day before the September 11 attacks makes Mllgan factually dstngushable as well as legally unhelpful. Moreover, not only s t well establshed that alens are 28
enttled to lesser consttutonal protectons than those afforded ctzens, see,._g_., Hamd, 542 U.S. at 559 (Scala, J., dssentng), 2/but t s also clear that the ctzens arrested n the Unted States n Padlla and _ dd not possess a consttutonal rght to be charged crmnally because of ther status as enemy combatants. The AUMF provdes no ndcaton that Congress ntended to dverge from the "unversal * * * practce" of detanng alen enemy combatants who have entered the country "bent on commttng hostle acts on Amercan sol." Padlla., 423 F.3d at 392; see _, 317 U.S. at 37-38. The nature of the September 11 attacks makes any suggeston of such a devaton absurd. Therefore, even though al-marr was arrested "nsde the Unted States," Br. 21, hs detenton as an enemy combatant s stll consttutonal and authorzed by the AUMF, because he entered 2_ The proposton that ctzens and non-ctzens may be extended dfferent consttutonal protectons s well establshed. See, e._g,.,unted States v. Verdugo- Urqudez, 494 U.S. 259, 273 (1990). Cf. Mathews v. Daz, 426 U.S. 67, 79-80 (1976) ("n the exercse of ts broad power over naturalzaton and mmgraton, Congress regularly makes rules that would be unacceptable f appled to ctzens."). The Court's decson n Rasul v. Bush, 542 U.S. 466 (2004), does not affect ths understandng. Rasul decded only the queston whether Unted States courts have statutory jursdcton over pettons for wrts of habeas corpus fled by alens located outsde Unted States terrtory. See 542 U.S. at 478-479; see also Khald v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005). But see n re Guantanamo Detanee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005). 29
the country wth tranng, fundng, and orders from al Qaeda to facltate and conduct terrorst actvtes. See pp. 7-12, su_.p.l _ 2. The AUMF does not requre a "clear statement" to authorze detenton of enemy combatants arrested n the Unted States Al-Marr seeks to mpose a rule that would requre a "clear congressonal statement" before the government could "arrest and detan as 'enemy combatants' alens lawfully resdng n the Unted States." Br. 16-20. The Supreme Court n Hamd, however, declned to adopt such a clear-statement rule, _ and ths Court n Padlla not only found that there s no "clear statement rule" but also that, even f there were, "the AUMF consttutes such a clear statement," Padlla, 423 F.3d at _' A1-Marr ctes law-of-warprncpleswhch, he asserts, prevent "cvlans" from beng detaned as "combatants." Br. 21-24. That argument s premsed on an assumpton that anyone present n the Unted States s a "cvlan" and not an enemy combatant. That assumpton, clearly, s flawed because resdent alens carded out the September 11 attacks. The argument s also clearly flawed because the Supreme Court has found that enemy combatants are no less enemy combatants when they enter the Unted States to do harm wthn our borders. See _, 317 U.S. at 37-38 (cted n _, 542 U.S. at 519); and that prncple s not lmted to formal enrollees, see note 8, su_.bp_. The Hamd pluralty provded for a faetfndng process to protect aganst erroneous detentons of noncombatants. 542 U.S. at 534. The dstrct court closely followed that process and determned that al-marrmfar from beng a cvlan--s properly detaned as an enemy combatant. A_ See Pettoner's Bref, _Hamd v. Rumsfeld (U.S. No. 03-6696), 2004 WL 378715, at *47; Pettoner's Reply Bref, Hamd v. Rumsfeld (U.S. No. 03-6696), 2004 WL 865270, at * 19. 30
395-396, even n the case of a ctzen combatant detaned n the Unted States. A fortor, the same clear statement would extend to the detenton of alen enemy combatants. Al-Mard agan seeks to dstngush hs case from Hamd and Padlla by pontng to hs arrest n the Unted States. Br. 16. That factual dfference s nconsequental. n _, where the enemy combatants were arrested n the Unted States, the Supreme Court not only upheld the Presdent's authorty to detan and, ndeed, mpose punshment on enemy combatants (both ctzen and alen) who enter the country, t explaned that the Presdent's drectve to detan enemy combatants durng a war s "not to be set asde by the courts wthout the clear convcton that [t s] n conflct wth the * * * laws of Congress." 317 U.S. at 25, 28. n other words, f there s a clear-statement rule when enemy combatants are nvolved, the rule runs n the opposte drecton of that advocated by al-marr and n favor of maxmzng presdental authorty. The cases that al-marr ctes n support of a clear-statement rule, Br. 16, 17, do not requre a dfferent result because they do not nvolve, lmt, or negate "the well-establshed power of the mltary to exercse jursdcton over * * * enemy bellgerents." Duncan, 327 U.S. at 313; see Zadvydas v. Davs, 533 U.S. 678 (200 l) (nvolvng removal of alens who are nadmssble or lkely to be a crme 31
rsk); Brown v. Unted States, 12 U.S. (8 Craneh) 110 (1814) (nvolvng sezure of personal property unconnected to hostltes); Lttle v. Barreme., 6 U.S. (2 Cranch) 170 (1804) (nvolvng statute for prosecuton of owners of Amercan vessels that dd not obey trade restrctons wth enemy). All of these cases pre-date Hamd and most were used to argue unsuccessfully for a clear statement rule there. Certanly, there s no bass for requrng a clearer statement for the detenton of alens than ctzens. Ln Accordngly, even f there were a "clear statement rule," the AUMF provdes the requste clarty. See Hamd, 542 U.S. at 516-517 (pluralty); d. at 587-589 (Thomas, J., dssentng); Padlla., 423 F.3d at 396. _/ _/ Smlarly, al-marr's relance on the specfc detenton authorzaton ncluded n the Alen Enemy Act of 1798, 50 U.S.C. 21, et seq., see Br. 17, s msplaced. That Act provdes authorty to detan cvlan alens, rather than combatant alens, and so t does not speak to, or lmt n any way, the authorty to detan alen enemy combatants durng wartme. See Ex Parte Endo, 323 U.S. 283, 300-302 (1944) (dstngushng between authorty to detan enemy combatants and cvlan alens). j/ Contrary to al-marr's clam that, had "Congress ntended to subject the mllons of alens from alled natons who lve wthn our borders to Executve detenton wthout charge, t would [have sad] so clearly," Br. 17 n.3, the government has never argued that the AUMF authorzes such wde-spread categorcal detenton. Ths case does not nvolve the potental detenton of"mllons of alens;" t nvolves the potental detenton of ndvduals lke al-marr who enter the Unted States wth ad and orders from al Qaeda to exact harm on the Unted States and ts ctzens. n the more than fve years snce the September 11 attacks, there have been only two such ndvduals detaned n the Unted States: Padlla, a ctzen, whose detenton as an enemy combatant ths Court upheld, and al-marr. The AUMF, not to menton the Presdent's own consttutonal authorty, readly authorzes the detenton of such enemy combatants. 32