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. …