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SAYING WHAT THE LAW SHOULD BE: JUDICIAL USURPATION IN Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007)

Tarter, J B

Harvard journal of law and public policy, 2008-12, Vol.31 (1), p.411 [Periódico revisado por pares]

Cambridge: Harvard Society for Law and Public Policy

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  • Título:
    SAYING WHAT THE LAW SHOULD BE: JUDICIAL USURPATION IN Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007)
  • Autor: Tarter, J B
  • Assuntos: Armed forces ; Attorneys general ; Combatants ; Court hearings & proceedings ; Federal court decisions ; Habeas corpus ; Judges & magistrates ; Jurisdiction ; Law ; Litigation ; Petitions ; Presidents ; Pretrial detention ; September 11 terrorist attacks-2001 ; State court decisions ; Supreme Court decisions ; Terrorism ; USA PATRIOT Act 2001-US
  • É parte de: Harvard journal of law and public policy, 2008-12, Vol.31 (1), p.411
  • Descrição: [...] 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. Rumsfeld20 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 Quirin22 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.25 The Al-Marri court reasoned that these cases could be distinguished because the detainees in Hamdi and Padilla had been working at the direction of, or in concert with, Taliban forces rather than al Qaeda, the group with which al-Marri was allegedly associated.26 The court also analyzed the Supreme Court's historical interpretations of the permissible scope of enemy combatant status.
  • Editor: Cambridge: Harvard Society for Law and Public Policy
  • Idioma: Inglês
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