Saying What the Law Should Be: Judicial Usurpation in Al-Marri V. Wright

By Tarter, J. B. | Harvard Journal of Law & Public Policy, Winter 2008 | Go to article overview

Saying What the Law Should Be: Judicial Usurpation in Al-Marri V. Wright


Tarter, J. B., Harvard Journal of Law & Public Policy


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Saying What the Law Should Be: Judicial Usurpation in Al-Marri V. Wright
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.