Enemy combatants and a challenge to the separation of war powers in Al-Marri v. Wright.

• Author: Shill, Gregory H.

Few legal issues are more controversial today than the scope of the President's authority to detain individuals as enemy combatants. Although that enormous power is described nowhere in the Constitution, it was "the practice of our own military authorities before the adoption of the Constitution." (1) The Supreme Court has validated such detention as an "important incident to the conduct of war," (2) even a "fundamental incident of waging war." (3) Its purpose is "to prevent captured individuals from returning to the field of battle and taking up arms once again." (4)

Ali Saleh Kahlah al-Marri, a member of al Qaeda, is currently the only person known to be detained as an enemy combatant on the American mainland. (5) On June 11, 2007, a divided panel of the United States Court of Appeals for the Fourth Circuit held that the President lacked the power to hold al-Marri as an enemy combatant. (6) The Fourth Circuit agreed to a rehearing en banc, and oral arguments were heard on October 31, 2007. (7)

In two separate holdings, the original panel sought to clarify the scope of the President's authority under the Constitution and enacted law to designate al Qaeda terrorists as enemy combatants. The court held that (i) the laws governing war are defined by international law, even when domestic statutes are to the contrary, and international law bars the detention of terrorists unless they are clearly acting on behalf of an enemy state, (8) and (ii) Congress had already restricted the President's authority to subject al Qaeda terrorists captured inside the United States to military detention. (9)

In reaching these conclusions, the court departed from applicable Supreme Court precedent (10) and a recent decision by the same circuit, (11) dramatically constricting the authority of Congress to authorize and the President to order the detention of terrorists who threaten grievous harm to the nation. Further, the court ignored clear language from Congress granting the President that power (12) and controlling case law recognizing it. (13) These holdings, which largely invalidate the September 18, 2001, Authorization for Use of Military Force (AUMF), (14) are contrary to the Define and Punish Clause of the Constitution, (15) and depart from separation of powers principles as well as the courts" traditional deference to the political departments in construing war authorizations and related legislation. (16) The consequence of the decision is to appropriate to the judiciary significant responsibility for determining with whom the nation is at war and what measures it will marshal against the enemy, thereby divesting the political branches of that power and the democratic controls and responsiveness they provide. If it became the law of the land, the panel decision would make it impossible for the United States military to detain the very terrorists who represent the greatest threat to the nation--those, like the September 11th hijackers, who operate within the United States and are unaffiliated or only nominally affiliated with a particular foreign government. The decision also has the potential to trigger major instability in war powers jurisprudence and to empower foreign states and organizations to define American law, even in the areas of domestic constitutional law and separation of powers.

A citizen of Qatar, al-Marri entered the United States legally with his wife and children on September 10, 2001. (17) The morning after his arrival, al Qaeda terrorists used four hijacked commercial airliners to attack the Pentagon and the World Trade Center, killing thousands of Americans. Al-Marri was arrested by the FBI in connection with the attacks three months later, and was held in civilian custody for a year and a half before being designated an enemy combatant by the President on June 23, 2003. He was transferred to the Naval Consolidated Brig in Charleston, South Carolina shortly thereafter. (18)

Al-Marri then petitioned for a writ of habeas corpus in federal district court in South Carolina. (19) The Government answered with a declaration by Jeffrey Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism, (20) asserting that al-Marri trained at an al Qaeda terrorist camp, was ordered by Osama bin Laden and September 11th mastermind Khalid Shaykh Muhammed to serve as a terrorist "sleeper agent," and that he began gathering information on poisonous chemicals in anticipation of a terrorist strike. (21)

The district court explained that al-Marri could challenge his detention via the two-stage burden-shifting procedure announced in Hamdi v. Rumsfeld:

Hamdi provides that once the Government has offered evidence in support of its continued detention of an alleged enemy combatant, the detainee must be permitted "to present his own factual case to rebut the Government's return [argument]." In so doing, the detainee must present "more persuasive evidence" to overcome the facts offered by the Government. (22) Applying the Hamdi framework to al-Marri's case, the district court ruled that the so-called Rapp Declaration satisfied the Government's initial burden, placing the onus on al-Marri to rebut the allegations. (23) In response, al-Marri "offered nothing more than a general denial in support of his burden." (24) The district court then dismissed his habeas claim. (25) A Fourth Circuit panel, per Judge Diana Gribbon Motz, reversed, holding that the President lacked the authority to detain al-Marri militarily. (26) Judge Roger L. Gregory joined the opinion.

After determining that it could properly exercise jurisdiction over the case, (27) the court considered whether al-Marri had been properly classified as an enemy combatant. (28) The court first summarized the Government's assertions of statutory and constitutional authority to detain al-Marri. (29) As statutory authority, the Government claimed that the AUMF, (30) as construed by the Supreme Court in Hamdi, allowed the President to detain al-Marri as an enemy combatant. (31) In addition, the Government contended that Article II supplied the President with "inherent constitutional authority" to detain al-Marri. (32)

In distinguishing the cases cited by the Government, the majority noted that American courts have looked to "careful distinctions made in the [international] law of war in identifying which individuals fit within the legal category of enemy combatants under our Constitution." (33) Thus, "[Yaser] 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." (34) Similarly, the majority reasoned, the Padilla court "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." (35) Quirin, cited by the Hamdi Court as the "most apposite precedent," (36) was also readily distinguishable from al-Marri's case: the Supreme Court properly upheld the military detention of the Nazi spies and saboteurs in Quirin, including an American citizen, because "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents [combatants] within the meaning of ... the law of war." (37)

Having found that Hamdi and Padilla only validated detention of Taliban (rather than al Qaeda) affiliates, the panel suggested that al-Marri was more like Lambden Milligan, an Indiana resident detained as an enemy combatant during the Civil War. (38) In 1866, the Supreme Court voided Milligan's detention and military commission conviction and announced that the "laws and usages [of war] ... can never be applied to citizens in states which have upheld the authority of the government [that is, Union states], and where the courts are open and their process unobstructed." (39)

Addressing the Government's counterarguments, the majority granted that the major precedents on executive detention over the past century and a half had departed from Milligan. (40) "Hamdi, Quirin, and Padilla distinguish Milligan," wrote the court, but those cases nevertheless "recognize[d] that its core holding remain[ed] the law of the land"--which was, the panel urged, that "civilians within this country ... may not be subjected to military control and deprived of constitutional rights." (41) Thus, the court held, the key cases on executive detention had only upheld, and international law only permitted, the detention of an enemy combatant when the individual was at the time of capture or shortly beforehand (a) engaged in combat or armed and prepared to do combat with the United States (b) in a combat zone, and (c) in the service of a foreign government, not a terrorist organization. (42)

Having rejected the Government's argument that the AUMF granted "the President[] authority to detain 'enemy combatants' during the current conflict with al Qaeda" because it believed "[n]o precedent recognize[d] any such authority," (43) the panel considered the Government's claim that the Constitution granted the President that power. (44) Applying Justice Jackson's canonical three-part framework for assessing claims of presidential power, (45) the court first asked whether Congress had spoken to the matter of detaining enemy combatants, and found that it had. (46) "[I]n the Patriot Act," the panel wrote, employing the expressio unius (47) mode of statutory construction, "Congress carefully stated how it wished the Government to handle aliens believed to be terrorists who were seized and held within the United States." (48) By contrast, the AUMF was "silent on [the issue of detaining] asserted alien terrorists...