Al-marri v. Pucciarelli: the Fourth Circuit Solidifies the President's Authority to Detain Al Qaeda Agents While Creating Additional Confusion Regarding the Habeas Corpus Privileges of Detainees

• Publication year: 2022

43 Creighton L. Rev. 1221. AL-MARRI V. PUCCIARELLI: THE FOURTH CIRCUIT SOLIDIFIES THE PRESIDENT'S AUTHORITY TO DETAIN AL QAEDA AGENTS WHILE CREATING ADDITIONAL CONFUSION REGARDING THE HABEAS CORPUS PRIVILEGES OF DETAINEES

AL-MARRI V. PUCCIARELLI: THE FOURTH CIRCUIT SOLIDIFIES THE PRESIDENT'S AUTHORITY TO DETAIN AL QAEDA AGENTS WHILE CREATING ADDITIONAL CONFUSION REGARDING THE HABEAS CORPUS PRIVILEGES OF DETAINEES

I. INTRODUCTION

The practice of detaining enemy combatants and subsequently trying them before military tribunals has been a part of United States history since the country's inception.(fn1) However, following the terrorist attacks of September 11, 2001, and the subsequent detainment of thousands of alleged terrorists, a number of questions have emerged surrounding the authority of the President of the United States to order the detainment and military tribunals of suspected terrorists.(fn2)Within the last decade, the Supreme Court of the United States has provided some guidance by upholding a congressional order entitled the Authorization for Use of Military Force(fn3) ("AUMF"), which authorized the President to detain members of al Qaeda and the Taliban.(fn4)Consequently, the Supreme Court has also attempted to clarify the rights of such detained persons by extending the privilege of habeas corpus to alien-detainees and establishing guidelines for the habeas proceedings of detainees.(fn5)

In the case of Al-Marri v. Pucciarelli,(fn6) Ali Saleh Kahlah al-Marri ("al-Marri"), a legal alien residing in Illinois, petitioned the United States District Court for the District of South Carolina for a writ of habeas corpus after United States military authorities detained him.(fn7) At trial, the United States Government offered evidence in support of al-Marri's detainment; al-Marri offered no rebuttal evidence in response.(fn8) The district court subsequently dismissed al-Marri's habeas petition due to al-Marri's refusal to file rebuttal evidence.(fn9)

On appeal, the United States Court of Appeals for the Fourth Circuit refused to classify al-Marri as an enemy combatant because the Government did not allege that al-Marri had ever taken up arms against the United States or that al-Marri had ever been near a battlefield in Afghanistan.(fn10) Consequently, the Fourth Circuit classified al-Marri as a civilian.(fn11) Upon finding no authority empowering the President to detain civilians, the Fourth Circuit then reversed the district court's ruling and ordered al-Marri's release from military custody.(fn12)

However, before al-Marri's release, the Fourth Circuit vacated its decision and considered the case en banc.(fn13) After rehearing the case en banc, a divided Fourth Circuit offered a per curiam opinion wherein the court made two holdings: (1) if the allegations against al-Marri were true, the President had authority to detain him, and (2) al-Marri had not received sufficient process.(fn14) The Fourth Circuit reached these two holdings in two separate 5-4 votes with seven of the court's nine Judges writing concurring and dissenting opinions.(fn15)

This Note will first review the facts and holding of the Al-Marri case, along with the reasoning the various Fourth Circuit Judges employed to reach the court's per curiam decision.(fn16) This Note will then provide a summary of relevant Supreme Court and Fourth Circuit precedent that have established guidelines for: (1) the classification of enemy combatants, (2) the President's authority to detain enemy combatants, and (3) the habeas corpus and due process privileges of enemy combatants.(fn17) Next, this Note will demonstrate that, although the Fourth Circuit correctly concluded that the AUMF authorized the President to detain al-Marri, the Fourth Circuit erred in concluding al-Marri had not received sufficient due process.(fn18) Specifically, this Note will establish that the legal definition of an enemy combatant includes al Qaeda agents operating within the United States.(fn19) Next, this Note will demonstrate that the AUMF specifically authorized the President to detain persons, like al-Marri, who associated with al Qaeda.(fn20) Finally, this Note will demonstrate that al-Marri received sufficient due process because al-Marri's habeas corpus proceedings adhered to guidelines established by the Supreme Court.(fn21) Thus, this Note will conclude that the Fourth Circuit correctly held that the AUMF authorized the President to detain al-Marri as an enemy combatant, and that the Fourth Circuit erroneously held that al-Marri had not received sufficient due process.(fn22)

II. FACTS AND HOLDING

On September 10, 2001, Ali Saleh Kahlah al-Marri ("al-Marri"), a Qatari national, legally entered the United States to attend Bradley University in Peoria, Illinois.(fn23) One day following al-Marri's arrival, terrorist agents of al Qaeda used four hijacked airliners to kill and injure thousands of United States citizens.(fn24) One week after these attacks, the United States Congress passed the Authorization for Use of Military Force(fn25) ("AUMF"), which authorized the President of the United States to use all force necessary and appropriate against those organizations, nations, or persons who aided in the terrorist attacks of September 11, 2001 in order to prevent similar attacks from occurring in the future.(fn26)

Two months after al-Marri entered the country, Federal Bureau of Investigation ("FBI") agents arrested him as a material witness to the September 11, 2001 attacks.(fn27) The FBI found al-Marri in possession of fifteen or more counterfeit or unauthorized credit card num-bers.(fn28) The United States Government soon after charged al-Marri with intent to defraud, making false statements to the FBI, making false statements in bank applications, and using another person's identification to influence the actions of a federally insured financial institutions.(fn29) The Government eventually indicted al-Marri on all these charges in the United States District Court for the Central District of Illinois.(fn30) Three days before a hearing for pretrial motions, the Government moved to dismiss the case based on an order from the President, which classified al-Marri as an enemy combatant closely associated with al Qaeda.(fn31) The district court granted this motion and delivered al-Marri into military custody.(fn32) The United States Military subsequently detained al-Marri in the Naval Consolidated Brig in South Carolina.(fn33)

For four years al-Marri remained in military custody without charge or any indication of when his confinement would end.(fn34) Military authorities did not permit al-Marri to see his family or consult with legal counsel for the first sixteen months of his confinement.(fn35)Despite this lack of communication, al-Marri's counsel filed a petition for a writ of habeas corpus on July 8, 2004 in the United States District for the District of South Carolina.(fn36) In this petition al-Marri claimed that his confinement was unlawful and violated his right to due process.(fn37) In support of this claim, al-Marri argued that he was a civilian and as such, the Due Process Clause of the United States Constitution entitled him to an opportunity to challenge his alleged status as an enemy combatant.(fn38) Al-Marri then demanded that the Government either charge him with a crime, or release him from military custody.(fn39) Specifically, al-Marri demanded a hearing wherein the Government would be forced to present evidence supporting al-Marri's alleged enemy combatant status, and al-Marri would be granted an opportunity to refute such evidence with the assistance of legal counsel.(fn40)

Two months later, the Government answered al-Marri's petition with evidence supporting the President's detainment order.(fn41) Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism, prepared this evidence and it came to be known as the Rapp Declaration.(fn42) The declaration asserted that al-Marri: (1) associated closely with al Qaeda, (2) trained in Afghanistan at an al Qaeda Terrorist training camp sometime between 1996 and 1998, (3) met Osama bin Laden in the summer of 2001, (4) volunteered for an al Qaeda martyr mission at that time, (5) received an al Qaeda mission to enter the United States before September 11, 2001 to operate as a "sleeper agent" to facilitate terrorist acts and investigate disrupting the financial system of the United States, (6) met with and received money from terrorist financier Mustafa Ahmed Al-Hawsawi, (7) collected information on his laptop regarding poisonous chemicals, (8) made efforts to obtain false identification, banking information, and credit card numbers, including stolen credit card numbers, (9) communicated by phone and email with known terrorists, and (10) saved information about the September 11, 2001 attacks, bin Laden, and jihad on his laptop computer.(fn43)

After providing this evidence, the Government allowed al-Marri access to counsel on October 14, 2004.(fn44) Al-Marri subsequently denied the Government's allegation that he was an enemy combatant, and moved for summary judgment.(fn45) The district court denied this motion and sent the case to a magistrate judge to determine what process should be afforded al-Marri.(fn46) Pursuant to the United States Supreme Court's recent decision in Hamdi v. Rumsfeld,(fn47) the magistrate judge ruled that the Rapp Declaration provided al-Marri with...