Full opinion text
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. 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-Marri’s military detention cease. See Ail-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 Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s 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 Government’s 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 al-Marri as an enemy combatant provided the Government’s 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. REVERSED AND REMANDED We deny the Government’s 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,-U.S.-, 128 S.Ct. 2229, --, 171 L.Ed.2d 41, slip op. at 64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Mar-ri's habeas petition.
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 nation’s military, has fought alongside any nation’s 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, al-Marri 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-Mar-ri’s 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. We would also grant al-Marri habeas relief. Even assuming the truth of the Government’s 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 nation’s 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. Even in times of national peril, we must follow the law, lest this country cease to be a nation of laws. For “[liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” Boumediene v. Bush, —U.S. -, 128 S.Ct. 2229, 2278, 171 L.Ed.2d 41 (2008). 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, 124 S.Ct. 2633, 159 L.Ed.2d 578 (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, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (Rutledge, J., concurring in the result). In this case, that means that we join in a judgment reversing and remanding for eviden-tiary 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-Marri’s 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-Marri’s case and that the hearsay declaration that constitutes the Government’s only evidence against al-Marri is “the most reliable available evidence” supporting the Government’s allegations. Post at 273-74. 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 Executive’s 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, “[sjecurity subsists ... in fidelity to freedom’s 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, 128 S.Ct. at 2277. 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 master’s degree at Bradley University in Peoria, Illinois, where he had obtained a bachelor’s 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 Government’s 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 person’s 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 re-indicted 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 pretrial 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. In the order, President George W. Bush stated that he “DETE RMINE [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 warlike 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-Marri’s 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 Government’s motion to dismiss the criminal indictment against al-Marri. In accordance with the President’s 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 al-Marri 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, Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir.2004); and the Supreme Court denied certiorari, al-Marri v. Rumsfeld, 543 U.S. 809, 125 S.Ct. 34, 160 L.Ed.2d 11 (2004). On July 8, 2004, al-Marri’s counsel filed the present habeas petition on al-Marri’s behalf in the District of South Carolina. On September 9, 2004, the Government answered al-Marri’s petition, citing the Declaration of Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism, as support for the President’s 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 country’s 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-Marri’s counsel, as of the time of the en bane filings, the Government still has not permitted al-Marri to speak to his wife or any of his five children.) Al-Marri then submitted a reply to the Government’s 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, 124 S.Ct. 2633, 159 L.Ed.2d 578. 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 magistrate’s ruling, al-Marri again denied the Government’s 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-Marri’s habeas petition because al-Marri had failed to rebut the allegations in the Rapp Declaration. In August 2006, the district court adopted the magistrate judge’s report and recommendation and dismissed al-Marri’s habeas petition. A few days later, al-Marri noted this appeal. 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 Government’s 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 al-Marri 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 Amendment’s 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 military detention. Al-Mar-ri 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-Marri’s indefinite military detention as an enemy combatant. Alternatively, the Government contends that even if the AUMF does not authorize the President to order al-Marri’s 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, 16 S.Ct. 977, 41 L.Ed. 140 (1896); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). To be sure, as al-Marri’s counsel conceded at oral argument before the en bane court, our Constitution has no “force in foreign territory unless in respect of our citizens.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 81 L.Ed. 255 (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, 110 S.Ct. 1056; see also Boumediene, 128 S.Ct. at 2246 (noting that “the Constitution’s ... substantive guarantees of the Fifth and Fourteenth Amendments ... protect! ] persons,” including “foreign nationals”); Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 2681-82, 165 L.Ed.2d 557 (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, 73 S.Ct. 472, 97 L.Ed. 576 (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, 16 S.Ct. 977 (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, 6 S.Ct. 1064, 30 L.Ed. 220 (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-Marri’s case by residing in Illinois for several months with his family and attending university there. “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, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); see also Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (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, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (Black, J., concurring). The “law of the land” at its core provides that “no man’s 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, 68 S.Ct. 499, 92 L.Ed. 682 (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, 107 S.Ct. 2095, 95 L.Ed.2d 697 (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, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (civil commitment of mentally ill sex offenders); Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (pretrial detention of dangerous adults); Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (pretrial detention of dangerous juveniles); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (civil commitment of mentally ill); Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986 (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, 124 S.Ct. 2633. 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, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Moreover, regardless of possible “threat[s] to community safety” or “barriers to criminal prosecution,” post at 305 (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. 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, 117 5.Ct. 2072. In Hamdi, the plurality explained that precisely the same principles apply when the Government seeks to detain a person as an enemy combatant. Under the habe-as procedure prescribed in Hamdi, if the Government asserts an exception to the usual criminal process by detaining as an enemy combatant an individual with eon-stitutional rights, it must proffer evidence to demonstrate that the individual “qual-if[ies]” for this exceptional treatment. 542 U.S. at 516, 534, 124 S.Ct. 2633. 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, 124 S.Ct. 2633. 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 necessary — unless the Government demonstrates that he “qualiffies]” for this extraordinary treatment because he fits within the “legal category of enemy combatant.” Id. at 516, 522 n. 1, 124 S.Ct. 2633. Moreover, when the Government contends, as it does here, that an individual with constitutional rights is an enemy combatant and that such an individual's exclusive opportunity to escape indefinite military detention rests on overcoming presumptively accurate hearsay, courts must take particular care that the Government’s 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, 124 S.Ct. 2633. 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, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality). These principles thus form the legal framework for consideration of the issues before us. Both parties recognize that it does not violate 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, 124 S.Ct. 2633. 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-Marri’s 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 Government’s 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. In considering the Government’s AUMF argument, we first note the limits the Government places on its interpretation of this statute and then consider the Government’s 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 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 Murray v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276-77, 15 L.Ed. 372 (1855). 2. The Government’s 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 “nationf ], organization ], or person[]” related to the September 11th terrorists. See § 2(a), 115 Stat. 224. For the Government wisely limits its argument. It relies only on the 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 Court’s and this Court’s 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 Court’s opinion in Hamdi, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578, and our opinion in Padilla v. Hanft, 423 F.3d 386 (4th Cir.2005). The “legal background” for the AUMF, which the Government cites, consists of two cases from earlier conflicts, Ex Parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942) (World War II), and Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (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 individual’s status during an international armed conflict, distinguishing between “combatants” (members of a nation’s military, militia, or other armed forces, and those who fight alongside them) and “civilians” (all other persons). 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, 124 S.Ct. 2633; Quinn, 317 U.S. at 30-31 & n. 7, 63 S.Ct. 2; 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. 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, 124 S.Ct. 2633. 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, “surrendered] his Kalishnikov assault rifle.” Id. at 510, 513, 516, 124 S.Ct. 2633 (internal quotation marks omitted). Hamdi’s 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, 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, 124 S.Ct. 2633. The Hamdi Court expressly recognized that the AUMF did not explicitly provide for detention. Id. at 519, 124 S.Ct. 2633; see also id. at 547, 124 S.Ct. 2633 (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 Hamdi’s battlefield capture, that this was “of no moment” in the case before it. Id. at 519,124 S.Ct. 2633 (plurality). As the plurality explained, “[b]ecause detention to prevent a combatant’s 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 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, 124 S.Ct. 2633 (internal quotation marks omitted and emphasis added); accord id. at 587, 124 S.Ct. 2633 (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, 124 S.Ct. 2633 (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, 124 S.Ct. 2633. 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. We too invoked the law of war, upholding Padilla’s detention because we understood “the plurality’s reasoning in Hamdi to be that the AUMF authorizes the President to detain all those who qualify as ‘enemy combatants’ within the meaning of the law of war.” Id. at 392. We also noted that Padilla’s detention, like Hamdi’s, was permissible “ ‘to prevent a combatant’s return to the battlefield ... a fundamental incident of waging war.’ ” Id. at 391 (emphasis added) (quoting Hamdi, 542 U.S. at 519, 124 S.Ct. 2633). 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, 124 S.Ct. 2633, 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 Qui-rin Court concluded that even a petitioner claiming American citizenship had been properly classified as an enemy combatant because “[e]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, 63 S.Ct. 2. 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, 63 S.Ct. 2, 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, 63 S.Ct. 2, 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, 63 S.Ct. 2. Hamdi and Padilla ground their holdings on this central teaching from Quirin, i.e., enemy combatant status rests on an individual’s affiliation during wartime with the “military arm of the enemy government.” Quirin, 317 U.S. at 37-38, 63 S.Ct. 2; Hamdi, 542 U.S. at 519, 124 S.Ct. 2633; 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 Government’s impassioned contention that a presidential order and 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 Milli-gan 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 Milligan’s, 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, 63 S.Ct. 2. 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 Mil-ligan 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, 124 S.Ct. 2633. 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 subjected to military control and deprived of constitutional rights. Milli-gan, 71 U.S. at 6,130. 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. 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, al-Marri 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 Hamdi’s detention as an enemy combatant, see Br. of Respondents at 20-21, 27, Ham-di, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578, or the “classic battlefield” detention it maintained justified Padilla’s, see Opening Br. for the Appellant at 16, 20, 29, 51, Padilla, 423 F.3d 386, here the Government argues that al-Marri’s 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, 124 S.Ct. 2633, 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 Government’s 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 President’s authority pursuant to the AUMF to detain as 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, 124 S.Ct. 2633, 159 L.Ed.2d 578 (No. 03-6996); see Opening Br. for the Appellant at 17-18, Padilla, 423 F.3d 386 (No. 05-6396). But neither the Supreme Court in Ham-di, nor this court in Padilla, accepted the Government’s 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, 124 S.Ct. 2633, and the “limited category” of individuals controlled by that holding, id. at 518, 124 S.Ct. 2633. 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). Thus, the Government is mistaken in its representation that Hamdi and Padilla “recognized” “[t]he President’s 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, 124 S.Ct. 2633. Therefore the Government’s 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 259 (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 law-of-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 Court’s most recent terrorism cases — Hamdan and Boume-diene — 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. 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.” Int’l 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/ siteengO.nsflhtmlall/terrorismihl-210705 (emphasis added). Perhaps for this reason, our dissenting colleagues and the Government ignore Hamdan’s 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 Government’s sole acknowledgment of Ham-dan 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 conflict, but also it improperly suggests that the Supreme Court approved Hamdan’s 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, 128 S.Ct. at 2240 (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 Government’s 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 ha-beas corpus” guaranteed by our Constitution, even though they were foreign nationals who had been seized in foreign lands. Id. at 2277. The Court explained that “[t]he laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Id. at 2277. 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 al-Marri as an enemy combatant. Because the legal status of enemy 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-Marri’s 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 al-Marri’s 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, 16 S.Ct. 977; see also Verdugo-Urquidez, 494 U.S. at 271,110 S.Ct. 1056. 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, 76 S.Ct. 1, 100 L.Ed. 8 (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”). 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, 63 S.Ct. 2. 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 comfing] 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. In fact, Milligan rejected the Government’s attempt to do just this. There, the Court acknowledged that Milli-gan’s conduct — “joining and aiding” a “secret political organization, armed to oppose the laws, and seeking] 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 co-conspirators “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 Government’s argument that Milligan’s 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 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 Court’s] great landmarks,” Reid, 354 U.S. at 30, 77 S.Ct. 1222, firmly and clearly rejected the argument the Government asserts