Tarterprinter - Al-Marri Case Comment

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• Publié par: Awlui
• Nombre de lectures: 96
• Langue: English

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SAYING WHAT THE LAW SHOULD BE:
JUDICIAL USURPATION IN
Al-Marri v. Wrig,h 4t87 F.3d 160 (4th Cir. 2007)
1Al-Marri v. Wrigh tis the most recent case in the struggle to
define who qualifies as an enemy combatant in thloeb aGl War
on Terror. InA l-Marri, the Fourth Circuit, in contrast with its
2previous ruling inP adilla v. Han,f tfound that the President’s
authority to designate a person detained on U.Sil. asno enemy
combatant was greatly limited. In so doing, thet cionuarppro-
priately usurped legislative and executive powers.
Ali Saleh Kahlah al-Marri, a graduate student, walsa wfully re-
3siding in Illinois when the FBI arrested him ine mDebcer of 2001.
After criminal proceedings against al-Marri stalled, President
Bush declared al-Marri an enemy combatant and ordeedr him
4transferred to the custody of the Secretary of nDesfee. Since June
23, 2003, the military has held al-Marri as an ye nceombatant at
5the Naval Consolidated Brig in South Carolina .
Al-Marri’s attorney petitioned for a writ of habe acsorpus in
6federal district court in South Carolin a.The government re-
sponded to the petition with a declaration from Jtohient Intel-
ligence Task Force for Combating Terrorism that aerstsed,
among other things, that al-Marri had trained withl Qaaeda
7and was a “sleeper agent” for al Qaeda in Amer icTah.e dis-
trict court dismissed al-Marri’s habeas petition o nthe grounds
that al-Marri had failed to rebut the accusationns tihe declara-
8 9tion. Al-Marri appealed.
In an opinion written by Judge Diana Gribbon Motzh, e t
Fourth Circuit reversed the denial of the writ bhye tdistrict

1. 487 F.3d 160 (4th Cir. 2007).
2. 423 F.3d 386 (4th Cir. 2 005).
3.A l-Marri, 487 F.3d at 164.
4.I d. at 165.
5.I d. at 164–65.
6.I d. at 165.
7. Id .at 165–66.
8.I d. at 166.
9. I.d
Harvard Journal of Law & Public Policy[Vol. 31 412
10court. The court first addressed the question whetherh aidt
jurisdiction over the petition. The government aerdg uthat the
11Military Commissions Act of 2006 (MCA) removed from the
court’s jurisdiction habeas petitions from declar eednemy com-
12batants. Section 7 of the MCA provides:
No court . . . shall have jurisdiction to heaorn soidr erc an
application for a writ of habeas corpus filed b yo no rbehalf
of an alien of the United States who has been mdeinterd by
the United States to have been properly detained aans en-
13emy combatant . . . .
The court held that the MCA did not strip it of isjudriction
over al-Marri’s habeas petition because there hado tn been a
review of his status as an enemy combatant afteer Pthresi-
dent’s initial decision to detain him. The courdt eursntood the
statute to require two steps: a determination tah apt erson is an
enemy combatant, followed by a review of the appiraotepnress
14of that classification. The panel found that al-Marri had not
received the second step of the review necessar yr etmo ove his
15habeas petition from the court’s jurisdiction .
Addressing the merits of the habeas appeal, the ct ofuorund
the government’s two primary arguments unpersuasi.v eFirst,
the government argued that the Authorization for eU osf Mili-
16tary Force (AUMF) authorized the President to hold al-Marri
17as an enemy combatant. Second, the government argued that
the President had inherent constitutional author ituynder his

10. Id. at 164.
11. Pub. L. No. 109-366, 120 Stat. 2600 (cotd i1f0ie dU .aS.C. § 948a–950w).
12. Al-Marri, 487 F.3d 1a6t7.
13. 28 U.S.C. § 2241(e).
14. See Al-Mar, r4i87 F.3d 1a6t9.
15. Se eid. at 170–71.
16. Pub. L. No. 107-40, 115 Stat. 224 (2001)ta.t uTthe ea usthorizes the President
to use all necessary and appropriate force againtshto se nations,
organizations, or persons he determines planned,t haourized, committed,
or aided the terrorist attacks that occurred on teSmepber 11, 2001, or
harbored such organizations or persons, in order ptroevent any future
acts of international terrorism against the UnitSetda tes by such nations,
organizations or persons.
Id.
17. See Al-Mar, r4i87 F.3d 1a7t4.
No. 1] Al-Marri v. Wrig ht 413
Article II commander-in-chief authority to detali-nM aarri as an
18enemy combatant.
The court first rejected a literal reading of thUeM F’As “all
necessary and appropriate force” language, becauseu chs a
reading would lead to “absurd results,” includingl oawling the
President to detain anyone who was in any way erde latto the
19attacks on September 11, 2001. The court then argued that the
AUMF must be read in light of precedents such aHs amdi v.
20 21Rumsfeld and Padilla v. Han,ft and by references to attempts
to define the scope of the Government’s authoriot yd tetain and
22try enemy combatants inE x parte Quirin and Ex parte
23Milligan. InH amdi, the Supreme Court upheld the classifica-
tion as an enemy combatant of an individual whog hfot uwith
24the Taliban, thed e fact ogovernment of Afghanistan. InP adilla,
the Fourth Circuit allowed the detention as an enye mcombat-
ant of an individual who was armed and present fignh aAni-
stan in opposition to American military action, e vtehnough the
government captured that individual at Chicago’s HOa’re Air-
25port. The Al-Marri court reasoned that these cases could be
distinguished because the detainees iHn amdi and Padilla had
been working at the direction of, or in concert , wTitahliban
forces rather than al Qaeda, the group with whi-chMa raril was
26allegedly associated.
The court also analyzed the Supreme Court’s hisctoarl i inter-
pretations of the permissible scope of enemy comabnat tstatus. In
Quirin, the Supreme Court upheld the designation as en emy
combatants of several German nationals and one Amicearn na-
tional who, acting on behalf of Nazi Germany, tsleyc rentered
27the United States to sabotage American war induesstr.i In

18. See id .at 190.
19. Id. at 177–78.
20. 542 U.S. 507 (2004).
21. 423 F.3d 386 (4th Cir. 2005).
22. 317 U.S. 1 (1942).
23. 71 U.S. (4 Wall.) 2 (1866).
24. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (iptylu oraplinion).
25. SeeP adilla v. Hanft, 423 F.3d 386, 389–90 (4th 0C5i)r. 20
26. See Al-Marr,i 487 F.3d 1a8t1 (“Hamdi and Padilla ground their holdings
on . . . an individual’s affiliation during wa rwtimithe the ‘military arm of the
enemy government.’ . . . H[Ia]mnd i and Padilla, it was the Taliban government of
Afghanistan.”).
27. See Ex par tQeuirin, 317 U.S. 1, 20–21, 30–31 (1942).
Harvard Journal of Law & Public Policy[Vol. 31 414
Milligan, the Court declined to find a southern Civil Wyamr psa-
thizer in Indiana to be an enemy combatant, renasgo nthi at he
was not aligned with the military arm of a foregiogvne rn-
28ment. From these cases, thAe l-Marri court concluded that one
can be an enemy combatant only if he takes up awrimths the
29military arm of a foreign governmen t.The court argued that
because the government had alleged only that al-rMia rwas
part of an international terrorist organization, ntohte military
arm of a foreign government, he did not fall inet oc atthegory
30of enemy combatant as defined Qinu irin and Milligan.
Having rejected the government’s statutory argumen, t the
court was no more sympathetic to the governmento’ns tecntion
that the President had the inherent constitutionaault hority to
detain al-Marri as an enemy combatant. The courtl dh ethat
31Congress, in section 412 of the Patriot Act ,had clearly identi-
fied the authority granted to the Attorney Genertoal deal with
suspected terrorists within the United States, anhda t tthe Pa-
32triot Act specifically forbade indefinite detentio.n The court
briefly considered two cases dealing with the Pdresnit’s in-
herent authority over enemy combatantsJ, ohnson v. Eisen-
33 34trager and Ludecke v. Watki,ns but found that they allow the
President special military authority only when dienagl with
35subjects of foreign states at war with the Unitetadt esS. The
court concluded that the President had no inherecnont stitu-
tional authority to detain as an enemy combatanet ownho was
lawfully present on U.S. soil and who “is not jaec ts uobf a
36country with which the United States is at wa rF.i”nding that
the President had no authority to detain al-Marrih, e tcourt
granted the habeas petition and ordered the goverenmt to end
37its military detention of al-Marri.

28. See Ex par tMeilligan, 71 U.S. (4 Wall.) 2, 121–22 (1866).
29. See Al-Marr,i 487 F.3d at 181–82.
30.S ee id .at 183.
31. Uniting and Strengthening America by ProvidinApgp ropriate Tools Re-
quired to Intercept and Obstruct Terrorism (USA PARTIOT ACT) Act of 2001,
Pub. L. No. 107-56, 115 Stat. 27