Saying what the law should be: judicial usurpation in Al-Marri v. Wright.

• Author: Tarter, J.B.

Al-Marri v. Wright (1) is the most recent case in the struggle to define who qualifies as an enemy combatant in the Global War on Terror. In Al-Marri, the Fourth Circuit, in contrast with its previous ruling in Padilla v. Hanft, (2) found that the President's authority to designate a person detained on U.S. soil an enemy combatant was greatly limited. In so doing, the court inappropriately usurped legislative and executive powers.

Ali Saleh Kahlah al-Marri, a graduate student, was lawfully residing in Illinois when the FBI arrested him in December of 2001. (3) After criminal proceedings against al-Marri stalled, President Bush declared al-Marri an enemy combatant and ordered him transferred to the custody of the Secretary of Defense. (4) Since June 23, 2003, the military has held al-Marri as an enemy combatant at the Naval Consolidated Brig in South Carolina. (5)

Al-Marri's attorney petitioned for a writ of habeas corpus in federal district court in South Carolina. (6) The government responded to the petition with a declaration from the Joint Intelligence Task Force for Combating Terrorism that asserted, among other things, that al-Marri had trained with al Qaeda and was a "sleeper agent" for al Qaeda in America. (7) The district court dismissed al-Marri's habeas petition on the grounds that al-Marri had failed to rebut the accusations in the declaration. (8) Al-Marri appealed. (9)

In an opinion written by Judge Diana Gribbon Motz, the Fourth Circuit reversed the denial of the writ by the district court. (10) The court first addressed the question whether it had jurisdiction over the petition. The government argued that the Military Commissions Act of 2006 (MCA) (11) removed from the court's jurisdiction habeas petitions from declared enemy combatants. (12) Section 7 of the MCA provides:

No court ... shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien of the United States who has been determined by the United States to have been properly detained as an enemy combatant.... (13) The court held that the MCA did not strip it of jurisdiction over al-Marri's habeas petition because there had not been a review of his status as an enemy combatant after the President's initial decision to detain him. The court understood the statute to require two steps: a determination that a person is an enemy combatant, followed by a review of the appropriateness of that classification. (14) The panel found that al-Marri had not received the second step of the review necessary to remove his habeas petition from the court's jurisdiction. (15)

Addressing the merits of the habeas appeal, the court found the government's two primary arguments unpersuasive. First, the government argued that the Authorization for Use of Military Force (AUMF) (16) authorized the President to hold al-Marri as an enemy combatant. (17) Second, the government argued that the President had inherent constitutional authority under his Article II commander-in-chief authority to detain al-Marri as an enemy combatant. (18)

The court first rejected a literal reading of the AUMF's "all necessary and appropriate force" language, because such a reading would lead to "absurd results," including allowing the President to detain anyone who was in any way related to the attacks on September 11, 2001. (19) The court then argued that the AUMF must be read in light of precedents such as Hamdi v. Rumsfeld (20) and Padilla v. Hanft, (21) and by references to attempts to define the scope of the Government's authority to detain and try enemy combatants in Ex parte Quirin (22) and Ex parte Milligan. (23) In Hamdi, the Supreme Court upheld the classification as an enemy combatant of an individual who fought with the Taliban, the de facto government of Afghanistan. (24) In Padilla, the Fourth Circuit allowed the detention as an enemy combatant of an individual who was armed and present in Afghanistan in opposition to American military action, even though the government captured that individual at Chicago's O'Hare Airport. (25) The Al-Marri court reasoned that these cases could be distinguished because the detainees in Hamdi and Padilla had been working at the direction of, or in concert with, Taliban forces rather than al Qaeda, the group with which al-Marri was allegedly associated. (26)

The court also analyzed the Supreme Court's historical interpretations of the permissible scope of enemy combatant status. In Quirin, the Supreme Court upheld the designation as enemy combatants of several German nationals and one American national who, acting on behalf of Nazi Germany, secretly entered the United States to sabotage American war industries. (27) In Milligan, the Court declined to find a southern Civil War sympathizer in Indiana to be an enemy combatant, reasoning that he was not aligned with the military arm of a foreign government. (28) From these cases, the Al-Marri court concluded that one can be an enemy combatant only if he takes up arms with the military arm of a foreign government. (29) The court argued that because the government had alleged only that al-Marri was part of an international terrorist organization, not the military arm of a foreign government, he did not fall into the category of enemy combatant as defined in Quirin and Milligan. (30)

Having rejected the government's statutory argument, the court was no more sympathetic to the government's contention that the President had the inherent constitutional authority to detain al-Marri as an enemy combatant. The court held that Congress, in section 412 of the Patriot Act, (31) had clearly identified the authority granted to the Attorney General to deal with suspected terrorists within the United States, and that the Patriot Act specifically forbade indefinite detention. (32) The court briefly considered two cases dealing with the President's inherent authority over enemy combatants, Johnson v. Eisentrager (33) and Ludecke...