Enemy Combatants and a Challenge to the Separation of War Powers in Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007)

17 Pages Posted: 2 Nov 2007 Last revised: 29 Aug 2013

See all articles by Gregory H. Shill

Gregory H. Shill

University of Iowa College of Law; University of Iowa College of Engineering, National Advanced Driving Simulator

Abstract

This Comment critiques the June 11, 2007, decision by a panel of the United States Court of Appeals for the Fourth Circuit invalidating the President's authority to detain an alien al Qaeda member as an unlawful combatant. The Court held that (i) the laws governing war are defined by international law even when U.S. statutes are to the contrary, (ii) international law bars the detention of terrorists unless they are clearly acting on behalf of an enemy state, and (ii) Congress had already restricted the President's authority to subject al Qaeda terrorists captured inside the United States to military detention.

My Comment disputes those arguments by demonstrating that far from restricting the President's authority to detain al Qaeda members, Congress in fact (i) exercised its constitutional authority under the Define and Punish Clause to define al Qaeda as the enemy for purposes of U.S. law (and thus overrode any potential law-of-war bar to classifying a non-state actor as a combatant eligible for detention), and (ii) gave the President broad power to detain terrorists irrespective of whether they formally act on behalf of a state, a power that has been consistently validated by Supreme Court and binding Circuit precedent.

Whatever the wisdom of the policy of detaining al Qaeda members as unlawful combatants until the end of the conflict, the President retains that authority unless Congress revokes or restricts it. Furthermore, I argue, the panel's elevation of international norms over the constitutional power of Congress to define the enemy for purposes of American law could prove problematic as the political branches inevitably seek to refine the scope of the fight against terrorism.

Keywords: unlawful combatant, al Qaeda, al-marri, fourth circuit, Motz, terrorism, terror, dod, laws of war, detention, patriot act, aumf, authorization for the use of military force, MCA, military commissions act, domestic detention, executive detention, international humanitarian law, IHL, red cross, ICRC

Suggested Citation

Shill, Gregory H., Enemy Combatants and a Challenge to the Separation of War Powers in Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). Harvard Journal of Law and Public Policy, Vol. 31, No. 1, 2008, Available at SSRN: https://ssrn.com/abstract=1026727

Gregory H. Shill (Contact Author)

University of Iowa College of Law ( email )

Boyd Law Building
Iowa City, IA 52242
United States

University of Iowa College of Engineering, National Advanced Driving Simulator

2401 Oakdale Blvd.
Iowa City, IA 52242
United States

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