Ali Saleh Kahlah AL-MARRI, Petitioner-Appellant, and Mark A. Berman, as next friend, Petitioner, v. Commander S.L. WRIGHT, USN Commander, Consolidated Naval Brig., Respondent-Appellee. Specialists in the Law of War; Professors of Evidence and Procedure; United States Criminal Scholars and Historians; Former Senior Justice Department Officials; Center for National Security Studies; American-Arab Anti-Discrimination Committee; Asian-American Justice Center; National Immigrant Justice Center; Human Rights First; Human Rights Watch; Professors of Constitutional Law and Federal Jurisdiction; Hate Free Zone; Muslim Advocates; World Organization for Human Rights USA, Amici Supporting Appellant, 487 F.3d 160

Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY joined. Judge HUDSON wrote a dissenting opinion. DIANA GRIBBON MOTZ, Circuit Judge. 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 four years ago military authorities seized 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 indicted 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 military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah 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 “pre-parad] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute — enacted years after al-Mar-ri’s seizure — strips federal courts of jurisdiction even to consider this habeas petition. We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition.

Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian. This does not mean that al-Marri must be set free.

Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely. 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 hij,acked 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 “DETERMINE[D] for the United States of America that” al-Marri: (1) is an enemy combatant; (2) is closely associated with al Qaeda; (3) “engaged in conduct that constituted hostile and 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 or-' dered the Attorney General to surrender al-Marri to the Secretary of Defense, and 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 four 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, or 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-HFF-RSC (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 or near 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. 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 v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). 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. II.

On November 13, 2006, three months after al-Marri noted his appeal, the Government moved to dismiss this case for lack of jurisdiction, citing

section 7 of the recently enacted Military Commissions Act of 2006 (MCA), Pub.L. No. 109-366, 120 Stat. 2600. A.

Section 7 of the MCA amends 28 U.S.C. § 2241(e) — a provision Congress added to the federal habeas corpus statute in the Detainee Treatment Act of 2005 (DTA), Pub.L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2741-42. Congress enacted the DTA in response to the Supreme Court’s holding, in Rasul v. Bush, 542 U.S. 466, 475-84, 124 S.Ct. 2686, 159 L.Ed.2d 548, (2004), that the federal habeas corpus statute, 28 U.S.C. § 2241(a), (c), granted the federal courts jurisdiction over habeas petitions filed by aliens held at Guantanamo Bay.

In the DTA, Congress amended 28 U.S.C. § 2241 by adding a new subsection, 2241(e), which removed the statutory grant of federal jurisdiction over actions filed by alien enemy combatants held at Guantanamo Bay. DTA § 1005(e)(1). Through the DTA, Congress sought to replace the procedures that Rasul had upheld with a substitute remedy.

In place of the statutory right to petition for habeas directly to a federal district court in § 2241(a), Guantanamo Bay detainees would receive a Combatant Status Review Tribunal (CSRT) conducted “pursuant to applicable procedures specified by the Secretary of Defense,” followed by review by the United States Court of Appeals for the District of Columbia Circuit. See DTA § 1005(e)(2)(A), (B); id. § 1005(a). The Supreme Court considered the reach of the DTA in Hamdan v. Rumsfeld, — U.S.-, 126 S.Ct. 2749, 2762-69, 165 L.Ed.2d 723 (2006).

It held that the DTA did not divest the federal courts of jurisdiction over § 2241 habeas actions filed by Guantanamo Bay detainees that were pending when the DTA was enacted in December 2005. On October 17, 2006, in response to Hamdan, Congress enacted the MCA, in part to clarify that it wished to remove § 2241 jurisdiction over pending and future habeas cases from detainees whom it believed had only a “statutory right of habeas.” See, e.g., 152 Cong. Rec. S10267 (daily ed. Sept. 27, 2006) (statement of Sen. Graham) (emphasis added). Thus,

section 7 of the MCA replaces the habeas provision added by the DTA and substitutes the following: (e)

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of

section 1005(

e) of the [DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. MCA § 7(a) (codified at 28 U.S.C.A. § 2241(e) (West 2006)).

The new statute expressly provides that this amendment to § 2241(e) “shall take effect on the date of the enactment of this Act [October 17, 2006], and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act....” MCA § 7(b). B. The Government asserts that the MCA divests federal courts of all subject matter jurisdiction over al-Marri’s petition. Al-Marri maintains that the MCA, by its plain terms, does not apply to him and that if we were to hold it does, the MCA would be unconstitutional. Al-Marri’s constitutional claim is a serious one.

As an alien captured and detained within the United States, he has a right to habeas corpus protected by the Constitution’s Suspension Clause. See Hamdi v. Rumsfeld, 542 U.S. 507, 525, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (“All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States.”). The Supreme Court has explained that “at the absolute minimum, the Suspension Clause protects the writ as it existed in 1789,” INS v. St.

Cyr, 533 U.S. 289, 301, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (internal quotation marks omitted), and “[a]t common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,” Rasul, 542 U.S. at 481, 124 S.Ct. 2686. Al-Marri argues persuasively that the MCA, which simply amended a federal statute — 28 U.S.C. § 2241 — is not, and could not be, a valid exercise of Congress’s powers under the Suspension Clause. See, e.g., Hamdan, 126 S.Ct. at 2764; St. Cyr., 533 U.S. at 298-99, 121 S.Ct. 2271.

Moreover, although Congress may remove federal jurisdiction over habeas petitions without suspending the writ if it provides an “adequate and effective” substitute, Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), Al-Marri maintains that Congress has provided him no substitute at all. Thus, he argues, if the MCA is read to strip our jurisdiction over his petition, it violates the Suspension Clause.

The Government seems to concede that al-Marri has a right to habeas corpus protected by the Suspension Clause, and acknowledges that “the touchstone of habeas corpus,” and thus any substitute remedy, is “[jjudicial review of constitutional claims and questions of law.” The Government asserts, however, that Congress has provided al-Marri a constitutionally adequate habeas substitute through the DTA and MCA scheme — an administrative determination by a CSRT followed by limited review of the CSRT’s decision in the D.C. Circuit.

Since al-Marri has never been afforded a CSRT and neither the DTA, the MCA, nor any other statute, regulation, or policy guarantees that he be granted one, it is not immediately apparent how this statutory arrangement could provide al-Marri a substitute remedy. Al-Marri has also raised substantial questions as to whether this statutory arrangement — were it available to him — would be constitutionally adequate. Cf. Boumediene v. Bush, 476 F.3d 981, 1004-07 (D.C.Cir.2007) (Rogers, J., dissenting) (stating that a CSRT followed by limited D.C.

Circuit review is not an adequate habeas substitute), cert. denied, — U.S.-, 127 S.Ct. 1478, 167 L.Ed.2d 578 (2007). We need not, however, resolve these difficult constitutional questions because we conclude that the MCA does not apply to al-Marri. The Supreme Court has instructed that when it is “fairly possible” to read a statute to avoid serious constitutional problems a court must do so. Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932) (“When the validity of

an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J. concurring) (“It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” (internal quotation marks omitted)); see also St.

Cyr, 533 U.S. at 299-300, 121 S.Ct. 2271 (applying this principle in the context of habeas jurisdiction). In this case, ordinary principles of statutory

interpretation demonstrate that the MCA does not apply to al-Marri. C. As always in interpreting

an act of Congress, we begin with the plain language of the statute. See, e.g., Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981). The MCA eliminates habeas jurisdiction under § 2241 only for an alien who “has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” MCA § 7(a).

Thus, the MCA does not apply to al-Marri and the Government’s jurisdictional argument fails unless al-Marri (1) “has been determined by the United States to have been properly detained as an enemy combatant,” or (2) “is awaiting such determination.” The Government asserts that al-Marri “has been determined by the United States to have been properly detained” through the President’s order of June 23, 2003, designating al-Marri an enemy combatant.

Alternatively, the Government argues that because the Department of Defense claims that if this court dismisses his habeas action al-Marri will be provided with a CSRT, al-Marri is “awaiting” such a determination for the purposes of the MCA. We find neither argument persuasive. 1. In his order of June 23, 2003, the President “DETERMINE[D] for the United States of America that” al-Marri was an enemy combatant and ordered al-Marri detained by the Department of Defense. This Presidential order may well constitute a “determination” by the President, for the United States, that al-Marri is an enemy combatant.

But the plain language of the MCA requires more than this initial determination to divest federal courts of jurisdiction under § 2241. The statute does not eliminate § 2241 jurisdiction in cases filed by an alien whom “the United States has determined is an enemy combatant” or who “has been detained as an enemy combatant.” Rather the MCA only eliminates § 2241 jurisdiction over a habeas petition filed by an alien who “has been determined, by the United States to have been properly detained as an enemy combatant” (emphasis added).

The statute’ use of the phrase “has been determined ... to have been properly detained” requires a two-step process to remove § 2241 jurisdiction: (1) an initial decision to detain, followed by (2) a determination by the United States that the initial detention was proper. The President’s June 23 order only constitutes an initial decision to detain. To read the statute as the Government proposes would eliminate the second step and render the statutory language “has been determined ... to have been properly detained” superfluous — something courts are loathe to do. See, e.g., Mackey v.

Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (“[W]e are hesitant to adopt an

interpretation of a congressional enactment which renders superfluous another portion of that same law.”). Other provisions of the DTA and MCA similarly demonstrate that Congress intended to remove jurisdiction only in cases in which the Government followed this two-step process. For those detainees to whom the DTA-MCA scheme applies, a CSRT (or similar tribunal) determines whether a person’s initial detention as an enemy combatant is proper.

In fact, Congress recognized that the very purpose of a CSRT is to “determine” whether an individual has been “properly detained.” Thus, Congress delineated some basic procedural requirements for the CSRTs, see DTA § 1005, and required the Secretary of Defense to submit to it within 180 days “the procedures of the Combatant Status Review Tribunals ... that are in operation at Guantanamo Bay, Cuba, for detenmin-ing the status of the detainees.” DTA § 1005(a)(1)(A) (emphasis added).

The Department of Defense’s CSRT procedures, in turn, explain that the CSRT process was established “to determine, in a fact-based proceeding, whether the individuals detained by the Department of Defense at the U.S. Naval Base Guantanamo Bay, Cuba, are properly classified as enemy combatants.” Memorandum from Deputy Secretary of Defense Gordon England to Secretaries of the Military Departments et al. 1 (July 14, 2006) [hereinafter CSRT Procedures Memorandum] (emphasis added). Moreover, the DTA and MCA provisions establishing D.C.

Circuit review of CSRT final decisions are entitled “Review of decisions of combatant status review tribunals of propriety of detention.” See DTA § 1005(e)(2); MCA § 10 (emphasis added). These provisions allow for D.C. Circuit review only of a final decision of a “Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” DTA § 1005(e)(2)(A) (emphasis added). These procedures reinforce the plain language of

section 7 of the MCA. Congress intended to remove federal courts’ § 2241 jurisdiction only when an individual has been detained and a CSRT (or similar Executive Branch tribunal) has made a subsequent determination that the detention is proper. Thus, the plain language of the MCA does not permit the Government’s

interpretation — i.e., that the President’s initial order to detain al-Marri as an enemy combatant constitutes both a decision to detain al-Marri and a determination under the MCA that al-Marri has been properly detained as an enemy combatant. The MCA requires both to eliminate our jurisdiction. 2.

The Government’s remaining jurisdictional contention is that even if al-Marri has not yet “been determined by the United States to have been properly detained,” the Government plans to provide him with a CSRT in the future, and so under the MCA he is “awaiting such determination.” Al-Marri maintains that Congress intended the term “awaiting such determination” to apply only to new detainees brought to Guantanamo Bay, or to those captured and held elsewhere outside the United States, and that the Government reads the term far more broadly than Congress intended.

Neither the DTA-MCA nor any other law or policy requires that al-Marri receive a CSRT, or even indicates that Congress believed he would be eligible for a CSRT and so could be “awaiting” one. At the same time, Congress did not expressly prohibit al-Marri from receiving a CSRT. To the extent that the plain language of the MCA does not clearly state who is “awaiting” a determination, its context and legislative history make clear that this phrase does not apply to persons, like al-Marri, captured and held within the United States. See, e.g., King v. St.

Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (“[A] cardinal rule [is] that a statute is to be read as a whole ... since the meaning of statutory language, plain or not, depends on context.” (citation omitted)); Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (“In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.”).

In enacting the MCA, Congress distinguished between those individuals it believed to have a constitutional right to habeas corpus, and those individuals it understood had been extended the right of habeas corpus only by statute, i.e., 28 U.S.C. § 2241. The supporters of the MCA consciously tracked the distinction the Supreme Court had drawn in Johnson v. Eisentrager, 339 U.S. 763, 777-78, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), and United States v.

Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), between aliens within the United States who become “ ‘invested with the rights guaranteed by the Constitution to all people within our borders,’ ” Verdugo-Urquidez, 494 U.S. at 271, 110 S.Ct. 1056 (quoting Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5, 73 S.Ct. 472, 97 L.Ed. 576 (1953)), and aliens who have no lawful contacts with this country and are captured and held outside its sovereign territory. See, e.g., 152 Cong. Rec. S10268 (daily ed. Sept. 27, 2006) (statement of Sen. Kyi); 152 Cong. Rec. S10406-07 (daily ed.

Sept. 28, 2006) (statement of Sen. Sessions). Congress sought to eliminate the statutory grant of habeas jurisdiction for those aliens captured and held outside the United States who could not lay claim to constitutional protections, but to preserve the rights of aliens like al-Marri, lawfully residing within the country with substantial, voluntary connections to the United States, for whom Congress recognized that the Constitution protected the writ of ha-beas corpus.

As the Chairman of the House Judiciary Committee and floor manager for the MCA in the House explained, “There are two types of habeas corpus: one is the constitutional great writ. We are not talking about that here.... The other is statutory habeas corpus, which has been redefined time and time again by the Congress. That is what we are talking about here.... ” 152 Cong. Rec. H7548 (daily ed. Sept. 27, 2006) (statement of Rep. Sensenbrenner); see also H.R.Rep.

No. 109-664, pt. 2, at 5-6 (2006) (noting that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country” and that the MCA “clarifies the intent of Congress that statutory habeas corpus relief is not available to alien unlawful enemy combatants held outside of the United States” (internal quotation marks omitted)). In fact, notwithstanding its posture in this case, the Government has otherwise demonstrated that it shares this understanding of the scope of the MCA.

On January 18, 2007, while al-Marri’s appeal was pending, the Attorney General himself testified before Congress that the MCA did not affect any habeas rights historically protected by the Constitution. Citing Eisentrager in written testimony to the Senate Judiciary Committee, he explained: “The MCA’s restrictions on habeas corpus petitions did not represent any break from the past. Indeed, it has been well-established since World War II that enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts.” Oversight of the U.S. Dep’t of Justice: Hearing Before the S.

Comm, on the Judiciary, 110th Cong. (Jan. 18, 2007) (statement of Alberto Gonzales, Att’y Gen. of the United States) (emphasis added). Furthermore, the Government’s treatment of al-Marri suggests that, despite its litigation posture, it does not actually believe that the CSRT process in the DTA and MCA applies to al-Marri. In the four years since the President ordered al-Marri detained as an enemy combatant, the Government has completed CSRTs for each of the more than five hundred detainees held at Guantanamo Bay.

Yet it was not until November 13, 2006, the very day the Government filed its motion to dismiss the case at hand, that the Government even suggested that al-Marri might be given a CSRT. At that time the Government proffered a memorandum from Deputy Secretary of Defense Gordon England directing that al-Marri be provided a CSRT “upon dismissal” of this case. This memorandum is too little too late.

The CSRT procedures, which the England memorandum suggests would govern al-Marri’s hypothetical tribunal, by their own terms only apply to aliens detained “at the Guantanamo Bay Naval Base, Cuba.” CSRT Procedures Memorandum, Enclosure (1), at 1. Moreover, the DTA and MCA provide for limited D.C. Circuit review only to detainees for whom a CSRT “has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.” DTA § 1005(e)(2)(B)(ii) (emphasis added); see MCA § 10.

Because the procedures that would govern al-Mar-ri’s hypothetical CSRT are “applicable” only to persons detained at Guantanamo Bay, even were al-Marri to receive a CSRT pursuant to them, he might not be eligible for judicial review. Given these provisions, the Government’s argument that the phrase “awaiting such determination” covers persons confined within the United States yields a strange result. It would mean that Congress assured that Guantanamo Bay detainees were provided with an administrative factfinding process (the CSRT) followed by judicial review in the D.C.

Circuit when eliminating habeas jurisdiction over their cases — but that Congress provided neither any substitute administrative procedure nor any form of judicial review when eliminating the habeas rights of those captured and detained within the United States. The Government offers nothing to indicate that Congress embarked on this strange course, and the legislative history of the MCA renders that theory untenable. Perhaps because the Government knows that Congress did not intend the CSRT process to apply to persons like al-Marri, the England memorandum neither convenes nor even schedules a CSRT for al-Marri.

Indeed, in its motion to dismiss, the Government acknowledges that the England memorandum only indicates “how the government plans to handle al-Marri in the event the courts agree that the MCA divested the courts of jurisdiction.” Thus, the England memorandum makes al-Mar-ri’s CSRT at best conditional- — triggered only “in the event” that we dismiss this litigation. In other words, the memorandum says only that al-Marri might receive a CSRT if this court dismisses his petition because he is awaiting a CSRT, but al-Marri will be awaiting a CSRT only if we dismiss his petition.

If al-Marri is “awaiting” a CSRT it is only because he might, through the good graces of the Executive, some day receive one. But he might not. After all, the Government’s primary jurisdictional argument in this case is that the President’s initial order to detain al-Marri constitutes the sole “determination” that he is due. And so under the Government’s view, al-Marri might well be “awaiting” a determination of the propriety of his detention for the rest of his life — a result Congress could not have countenanced for an individual it understood to have a constitutional right to habeas corpus.

In sum, the Government’s

interpretation of the MCA is not only contrary to legislative intent, but also requires reading the phrase “awaiting such determination” so broadly as to make it meaningless. We are not at liberty to interpret statutes so as to render them meaningless. See Scott v. United States, 328 F.3d 132, 139 (4th Cir.2003) (“[W]e must ... avoid any

interpretation that may render statutory terms meaningless ....”) (citing Freytag v. Comm’r Internal Revenue, 501 U.S. 868, 877, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)). The phrase “awaiting such determination” gains meaning only if it refers to alien detainees captured and held outside the United States — whom Congress both believed had no constitutional right to ha-beas and expected would receive a CSRT based on the larger DTA-MCA scheme. Al-Marri is not such a detainee; therefore he is not “awaiting such determination” within the terms of the MCA. 3.

For these reasons, we must conclude that the MCA does not apply to al-Marri. He was not captured outside the United States, he is not being held at Guantanamo Bay or elsewhere outside the United States, he has not been afforded a CSRT, he has not been “determined by the United States to have been properly detained as an enemy combatant,” and he is not “awaiting such determination.” The MCA was not intended to, and does not, apply to aliens like al-Marri, who have legally entered, and are seized while legally residing in, the United States.

Accordingly, the Government’s jurisdictional argument fails and we turn to the merits of al-Marri’s petition. III. 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 a combatant.

The Government argues that the Authorization for Use of Military Force (AUMF), Pub.L. No. 107-40, 115 Stat. 224 (2001), 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 Verdugo-Urquidez, 494 U.S. at 271, 110 S.Ct. 1056. To be sure, 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 establish 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 Kwong Hai Chew, 344 U.S. at 596 n. 5, 73 S.Ct. 472 (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 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, 358, 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 (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, 427-28, 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 military detention, without criminal process, of persons who “qualify as ‘enemy combatants,’ ” that is, fit within that particular “legal category.” Hamdi v. Rumsfeld, 542 U.S. 507, 516, 522 n. 1, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality).

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). And, of course, the Government can never invoke an exception, and so detain a person without criminal process, if the individual does not fit within the narrow legal category of persons to whom the exception applies.

For example, the Supreme Court has explained 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. The civil commitment process may only be substituted for criminal process for such a criminal if the Government’s evidence establishes “proof of dangerousness” and “proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’ ” Hendricks, 521 U.S. at 358, 117 S.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 habeas procedure prescribed in Ham-di, if the Government asserts an exception to the usual criminal process by detaining as an enemy combatant an individual with constitutional rights, it must proffer evidence to demonstrate that the individual “qualifies]” 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 5.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 “qualif[ies]” for this extraordinary treatment because he fits within the “legal category” of enemy combatants. 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, whose 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 combatants. 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 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: ... the 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. 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 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. 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.

To read the AUMF to provide the President with such unlimited power 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. We need not here deal with the absurd results, nor reach the constitutional concerns, raised by an

interpretation of the AUMF that authorizes the President to detain indefinitely — without criminal charge or process — anyone he believes to have aided any “nation[ ], organization ], or person[ ]” related to the September 11th terrorists. 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 it 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 combatants” under our Constitution.

See, e.g., Hamdi, 542 U.S. at 518, 124 S.Ct. 2633; Quirin, 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 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 Hamdi, 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 “surrender [ed] his Kalishnikov assault rifle.” Hamdi, 542 U.S. 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. Hamdi, 542 U.S. 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).

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.” Hamdi, 542 U.S. at 516-17, 124 S.Ct. 2633 (plurality) (internal quotation marks omitted) (emphasis added); accord id. at 587, 124 S.Ct. 2633 (Thomas, J., dissenting).

Indeed, the plurality expressly 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 (plurality) (emphasis added). In Padilla, we 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.” 423 F.3d 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 who qualify as ‘enemy combatants’ within the meaning of the laws of war.” Id. at 392. We also noted that Padilla’s detention, like Ham-di’s, was permissible “ ‘to prevent a combatant’s return to the battlefield ... a fundamental incident of waging war.’ ” Id. at 391 (quoting Hamdi, 542 U.S. at 519, 124 S.Ct. 2633) (emphasis added). 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 “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this county bent on hostile acts, are enemy belligerents [combatants] within the meaning of ... the law of war.” Quirin, 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 Qui-rin, 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; see also 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 overthrowing the Government and duly constituted authorities of the United States.” Id. at 6.

The Court recognized that Milligan had committed “an enormous crime” during “a period of war” and at a place “within ... the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy.” Id. at 7, 130. But it found no support in the “laws and usages of war” for subjecting Milligan to military jurisdiction as a combatant, for although he was a “dangerous enem[y]” of the nation, he was a civilian, and had to be treated as such. Id. at 121-22,130.

Quirin, Hamdi, and Padilla all emphasize that 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. 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 “Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States”).

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, Hamdi, 542 U.S. 507, 124 S.Ct. 2633 (No. 03-6696), or the “classic battlefield” detention it maintained justified Padilla’s, see Opening Br. for the Appellant at 16, 20, 29, 51, Padilla, 432 F.3d 386 (No. 05-6396), here the Government argues that al-Marri’s seizure and indefinite military detention 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 (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, id. at 509, 516, 517, 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.” No precedent recognizes any such authority. Ham-di 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.

Therefore the Government’s primary argument — that Hamdi and Padilla “compel the conclusion” that the AUMF authorizes the President “to detain al-Marri as an enemy combatant” — fails. 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.

The Hamdi plurality, however, noted that because it had not “elaborated” on “[t]he legal category of enemy combatant,” “[t]he permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.” Hamdi, 542 U.S. at 522 n. 1, 124 S.Ct. 2633. As a “lower court” in this “subsequent case[ ],” we have searched extensively for authority that would support the Government’s contention that al-Marri fits within the “permissible bounds” of “the legal category of enemy combatant.” As explained below, we have found none.

Certainly, the Supreme Court’s most recent terrorism ease, Hamdan, 126 S.Ct. 2749, and the law-of-war principles it identifies provide no support for that contention. Moreover, contrary to the Government’s apparent belief, no precedent and nothing in the “legal background against which the AUMF was enacted” permits a person to be classified as an enemy combatant because of his criminal conduct on behalf of an enemy organization. And, the AUMF itself neither classifies certain civilians as enemy combatants, nor otherwise authorizes the President to subject civilians to indefinite military detention. i.

Rather than supporting the Government’s position, the Supreme Court’s most recent terrorism case provides an additional reason for rejecting the contention that al-Marri is an enemy combatant. In Ham-dan, 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, such as that with Afghanistan’s Taliban government) 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/ siteeng0.nsf/htmlall/terrorism-ihl-210705 (emphasis added).

Perhaps for this reason, the Government ignores Hamdan’s holding that the conflict with al Qaeda in Afghanistan is a non-international conflict, and ignores the fact that in such conflicts the “legal category” of enemy combatant does not exist. Indeed, the Government’s sole acknowledgment of Hamdan in its appellate brief is a short footnote, 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 suggests that the Supreme Court approved Hamdan’s detention when the legality of that detention was not before the Court, and in fact, the legality of the detention of those like Hamdan, captured and detained in the conflict with al Qaeda outside the United States, is still being litigated. See, e.g., Boumediene, 476 F.3d 981.

Moreover, even were the Supreme Court ultimately to approve the detention of Hamdan and those like him, that would not bolster the Government’s position at all in the case at hand. This is so because, since 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-Marrf s case, the applicable law is our Constitution.

Thus, even if the Supreme Court should hold that the Government may detain indefinitely Hamdan and others like him, who were captured outside the United States and lacked substantial and voluntary connections to this country, that 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. ii.

The core assumption underlying the Government’s position, notwithstanding Hamdi, Padilla, Quirin, Milligan, and Hamdan, seems to be that persons lawfully within this country, entitled to the protections of our Constitution, lose their civilian status and become “enemy combatants” if they have allegedly engaged in criminal conduct on behalf of 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, any more than allegations of murder in association with others while in military service 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 well illustrates this point. 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 laws of war by “without uniform com[ing] secretly through the lines for the purpose of waging war.” Id. By doing so, in addition to being subject to military detention for the duration of the conflict as enemy combatants, they also became “subject to trial and punishment by military tribunals for acts which render their belligerency illegal.” Id.

Had the Quirin petitioners never “secretly and without uniform” passed our “military lines,” id., they still would have been enemy combatants, subject to military detention, but would not have been unlawful enemy combatants subject to military trial and punishment. Neither Quirin nor any other precedent even suggests, as the Government seems 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 an enemy organization.

In fact, Milligan rejected the Government’s attempt to do just this. There, the Court acknowledged that Milligan’s conduct — not “mere association” with, cf. post at n.3, but also “joining and aiding” a “secret political organization, armed to oppose the laws, and seek[ing] by stealthy means to introduce the enemies of the country into peaceful communities, there to ... overthrow the power óf 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 prohibited the Government from subjecting Milli-gan to military jurisdiction for his “enormous crime.” Id. Although Milligan was an “enem[y]” of the country and associated with an organization seeking to “overthrown the Government” of this country, he was still a civilian. Id. Milligan’s conduct mirrors the Government’s allegations against al-Marri.

If the Government’s allegations are true, like Milligan, al-Marri is deplorable, criminal, and potentially dangerous, but like Milligan he is a civilian nonetheless. iii. Finally, we note that the AUMF itself contains nothing that transforms a civilian into a combatant subject to indefinite military detention. Indeed, the AUMF contains only a broad grant of war powers and lacks any specific language authorizing detention.

For this reason, the Hamdi plurality explained that its opinion “only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant.” Hamdi, 542 U.S. at 523, 124 S.Ct. 2633 (emphasis added). Although the military detention of enemy combatants like Hamdi is certainly “a fundamental incident of waging war,” id. at 519,124 S.Ct. 2633, the military detention of civilians like al-Marri just as certainly is not.

Notably, even the Government does not contend that the AUMF transforms civilians into combatants or authorizes the President to classify civilians as enemy combatants and so detain them in military custody. Moreover, assuming the Constitution permitted Congress to grant the President such an awesome and unprecedented power, if Congress intended to grant this authority it could and would have said so explicitly.

The AUMF lacks the particularly clear statement from Congress that would, at a minimum, be necessary to authorize the classification and indefinite military detention of civilians as “enemy combatants.” See, e.g., Greene v. McElroy, 360 U.S. 474, 508, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) (rejecting Government argument that Executive Orders and statutes permitted deprivation of liberty rights absent “explicit authorization” in them); Duncan v.

Kahanamoku, 327 U.S. 304, 324, 66 S.Ct. 606, 90 L.Ed. 688 (1946) (rejecting Government argument that statute authorized trial of civilians by military tribunals because Congress could not have intended “to exceed the boundaries between military and civilian power, in which our people have always believed”); Ex parte Endo, 323 U.S. 283, 300, 65 S.Ct. 208, 89 L.Ed. 243 (1944) (rejecting Government argument that a “wartime” executive order and statute permitted detention of citizen of Japanese heritage when neither “use[d] the language of detention”); Brown v.

United States, 12 U.S. (8 Cranch) 110, 128-29, 3 L.Ed. 504 (1814) (rejecting Government argument that declaration of war authorized confiscation of enemy property because it did not clearly “declare[]” the legislature’s “will”). We are exceedingly reluctant to infer a grant of authority that is so far afield from anything recognized by precedent or law-of-war principles, especially given the serious constitutional concerns it would raise.

Furthermore, shortly after Congress enacted the AUMF, it enacted another statute that did explicitly authorize the President to arrest and detain “terrorist aliens” living within the United States believed to have come here to perpetrate acts of terrorism. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (hereinafter “Patriot Act”), Pub.L. No. 107-56, 115 Stat. 272.

However, that statute only authorizes detention for a limited time pending deportation or trial, pursuant to civilian law enforcement processes, and accompanied by careful congressional oversight. See infra

Section III.C.l. The explicit authorization for limited detention and criminal process in civilian courts in the Patriot Act provides still another reason why we cannot assume that Congress silently empowered the President in the AUMF to order the indefinite military detention without any criminal process of civilian “terrorist aliens” as “enemy combatants.” We note that this does not mean that we accept al-Marri’s contention that the Patriot Act affirmatively prohibits the detention of all suspected terrorist aliens within this country as enemy combatants.

Plainly, the Patriot Act does not eliminate the statutory authority provided the President in the AUMF to detain individuals who fit within the “legal category” of enemy combatant; thus, if an alien “qualifies]” as an enemy combatant, then the AUMF. authorizes his detention. Hamdi, 542 U.S. at 516, 124 S.Ct. 2633.

But if there- were any conflict between the Patriot Act and the AUMF as to the legality of the detention of terrorist alien civilians within the United States, we would have to give precedence to the Patriot Act — for while the Patriot Act’s explicit and specific focus is on detention of terrorist aliens within the United States, the AUMF lacks any language permitting such detention. See Hamdi, 542 U.S. at 519, 124 S.Ct. 2633. And the Supreme Court has instructed that “a more specific statute will be given precedence over a more general one, regardless of their temporal sequence.” Busic v.

United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); see also Edmond v. United States, 520 U.S. 651, 657, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). In sum, the Government has not offered, and although we have exhaustively searched, we have not found, any authority that permits us to hold that the AUMF empowers the president’to detain al-Marri as an enemy combatant.

If the Government’s allegations are true, and we assume they are for present purposes, al-Marri, like Milligan, is a dangerous enemy of this nation who has committed serious crimes and associated with a secret enemy organization that has engaged in hostilities against us. But, like Milligan, al-Marri is still a civilian: he does not fit within the “permissible bounds of’ “[t]he legal category of enemy combatant.” Hamdi, 542 U.S. at 522 n. 1, 124 S.Ct. 2633. Therefore, the AUMF provides the President no statutory authority to order the military to seize and indefinitely detain al-Marri. C.

Accordingly, we turn to the Government’s final contention. The Government summarily argues that even if the AUMF does not authorize al-Marri’s seizure and indefinite detention as an enemy combatant, the President has “inherent constitutional authority” to order the military to seize and detain al-Marri. The Government maintains that the President’s “war-making powers” granted him by

Article II “include the authority to capture and detain individuals involved in hostilities against the United States.” In other words, according to the Government, the President has “inherent” authority to subject persons legally residing in this country and protected by our Constitution to military arrest and detention, without the benefit of any criminal process, if the President believes these individuals have “engaged in conduct in preparation for acts of international terrorism.” See Rapp Declaration.

This is a breathtaking claim, for the Government nowhere represents that this “inherent” power to order indefinite military detention extends only to aliens or only to those who “qualify” within the “legal category” of enemy combatants. To assess claims of presidential power, the Supreme Court has long recognized, as Justice Kennedy stated most recently, that courts look to the “framework” set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). See Hamdan, 126 S.Ct. at 2800 (Kennedy, J., concurring).

Justice Jackson explained that “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Youngstown, 343 U.S. at 635, 72 S.Ct. 863 (Jackson, J., concurring). “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum,” id., but “[wjhen the President tak

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