Obama Administration Will Avoid the Enemy Combatant Question

by Julian Ku

I’ve been critical of the Obama Administration’s deceptive approach to war-on-terrorism legal issues (trash your predecessor, but endorse some of his key policies).  But I don’t have any real criticism of its latest decision to avoid the legal fight over the power to detain enemy combatants in the U.S. 

The Justice Department, in an abrupt change in policy from the Bush administration, is preparing to bring terrorism-related charges against a man identified as an operative of Al Qaeda who has been held in a military brig for more than five years, government officials said Thursday.

The charges would move the case of the only enemy combatant to be held on American soil, Ali Saleh Kahlah al-Marri, into a civilian criminal court. The Bush administration had argued that he could be held indefinitely without being charged.

This is a smart move, in my humble opinion, because it is far from clear that they could win this fight in the U.S. Supreme Court.  The Bush Administration barely prevailed in Hamdi.   Indeed, this strategy preserves this power to detain enemy combatants t some later date without actually having to defend this argument in court (and possibly lose it).  Is this a bit tricky and sly? Yes, but that is not necessarily a bad thing.


2 Responses

  1. Indeed Prof. Ku,
    Already in the Hamdi Oral argument, both Justices Souter and Kennedy are openly speculating about whether the AUMF has an expiration date, and that perhaps decisions over the length of war and duration of wartime detention are determinations that are not best left to the political branches.  And of course after Boumediene, can anyone expect that the Court wouldn’t have applied precisely that same framework to Al Marri?

  2. The al Marri position seems to be that he is an accused terrorist who should be tried as a criminal and cannot be an enemy combatant because this is not a real war against a real enemy army. If they win that argument, then the court will not rule that the executive has no power to detain real enemy combatants, but just that al Marri isn’t one of them.

    Starting on 9/11, the Bush administration position has been that the enemy were simultaneously terrorists and combatants. Critics, many now in the Obama administration, have argued that they were just criminals and that the criminal justice system could handle them. Now that they are in power, they obviously would prefer to take that position in further argument.

    When an enemy combatant pretends to be a civilian and crosses through our lines of defense, then he is subject to both military and criminal jurisdiction. He can be charged in civilian court with any crime he commits without contradicting the claim that he was also an enemy combatant. This will not be true for Guantanamo detainees.

    Reasonable people may handicap whether the Court would rule for or against al Marri in the original case. However, the precedent of ex parte Quirin clearly establishes the general principle that the government can militarily detain, try, and execute actual enemy combatants captured while pretending to be civilians in the US. I think it far fetched that the court will overturn any precedent in a case where neither side is actually arguing against it. Therefore, without predicting the possible outcome had the case gone forward, I do not expect it would affect the ability of the government to detain enemy combatants in future wars. At some point, however, the court will have to rule more clearly whether the current conflict is or is not a real war.

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