Tarterprinter - Al-Marri Case Comment

SAYING WHAT THE LAW SHOULD BE: JUDICIAL USURPATION IN Al-Marri v. Wrig,h 4t87 F.3d 160 (4th Cir. 2007) 1Al-Marri v. Wrigh tis the most recent case in the struggle to define who qualifies as an enemy combatant in thloeb aGl War on Terror. InA l-Marri, the Fourth Circuit, in contrast with its 2previous ruling inP adilla v. Han,f tfound that the President’s authority to designate a person detained on U.Sil. asno enemy combatant was greatly limited. In so doing, thet cionuarppro-priately usurped legislative and executive powers. Ali Saleh Kahlah al-Marri, a graduate student, walsa wfully re-3siding in Illinois when the FBI arrested him ine mDebcer of 2001. After criminal proceedings against al-Marri stalled, President Bush declared al-Marri an enemy combatant and ordeedr him 4transferred to the custody of the Secretary of nDesfee. Since June 23, 2003, the military has held al-Marri as an ye nceombatant at 5the Naval Consolidated Brig in South Carolina . Al-Marri’s attorney petitioned for a writ of habe acsorpus in 6federal district court in South Carolin a.The government re-sponded to the petition with a declaration from Jtohient Intel-ligence Task Force for Combating Terrorism that aerstsed, among other things, that al-Marri had trained withl Qaaeda 7and was a “sleeper agent” for al Qaeda in Amer icTah.e dis-trict court dismissed al-Marri’s habeas petition o nthe grounds that al-Marri had failed to rebut the accusationns tihe declara-8 ...