11 Jun Does Affiliation with Al Qaeda Make One an “Enemy Combatant”? No, Says U.S. Court of Appeals
The U.S. Court of Appeals for the Fourth Circuit ruled today that an alien resident of the U.S. alleged to be affiliated with Al Qaeda cannot be detained as an “enemy combatant.” (al-Marri v. Wright).
Al-Marri is a citizen of Qatar who is alleged to have trained at Al Qaeda training camps prior to September 11 and who was detained while studying computer science at Bradley University in Illinois. The U.S. military has held al-Marri in a brig in South Carolina for the past four years as an enemy combatant.
I’m sure others have already digested this opinion elsewhere.* Let me add my first two cents here.
At first glance, it seems to me the crucial analytical move by the Court here is to reject the government’s claim that allegations of membership in Al Qaeda is enough to sustain an “enemy combatant” designation. The Court seems to read prior Supreme Court precedent to require detention on the battlefield, or evidence of affiliation with the military of a government with which the U.S. is a war, in order to sustain an enemy combatant designation.
This seems like a pretty defensible approach, although I think it is hard to read Congress’ September 11 Resolution to be so limited. As a practical matter, this opinion really does require a “law enforcement” approach to combatting terrorism. It means that the “war on terrorism” is becoming more and more a metaphor, at least within the U.S., because under this approach, the U.S. military has essentially no role to play in detaining alleged terrorists who are within the United States (outside is another matter, but that may be eventually shot down as well).
I am beginning to think that the law enforcement approach is more practical and attractive. I don’t think, however, that Congress or the President agree with this approach and I doubt that the law enforcement approach is constitutionally required.
*UPDATE: For a more detailed and thoughtful analysis along the same lines as this post, see Orin Kerr’s analysis here.