Chapter 26 - Military Detention
Part II
Padilla v. Hanft, 423 F.3d 386 (2005)
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Subsequent cases to the publication of the book
have made most of the reminder of this chapter
less relevant.
Jose Padilla is a US citizen, detained in the US,
under the president's order?
What gives the president the authority to do this?
What eventually happened to Padilla?
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Al-Marri v. Pucciarelli, 534 F.3d 213 (2008)
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Al-Marri, a citizen of Qatar, lawfully entered the United
States with his wife and children on September 10, 2001,
to pursue a master’s degree at Bradley University in
Peoria, Illinois, where he had obtained a bachelor’s
degree in 1991.
Three months later, on December 12, 2001, FBI agents
arrested al-Marri at his home in Peoria as a material
witness in the Government’s investigation of the
September 11th attacks.
Al-Marri was imprisoned in civilian jails in Peoria and
then New York City.
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The Detention Order
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After dropping criminal fraud charges:
In the order, President George W. Bush stated that he
“DETERMINE[ D] for the United States of America that”
al-Marri: (1) is an enemy combatant; (2) is closely
associated with al Qaeda; (3) “engaged in conduct that
constituted hostile and war-like acts, including conduct
in preparation for acts of international terrorism”; (4)
“possesses intelligence . . . that . . . would aid U.S. efforts
to prevent attacks by al Qaeda”; and (5) “represents a
continuing, present, and grave danger to the national
security of the United States.”
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The Confinement
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Since that time (that is, for five years) the military
has held al-Marri as an enemy combatant, without
charge and without any indication when this
confinement will end. For the first sixteen months
of his military confinement, the Government did
not permit al-Marri any communication with the
outside world, including his attorneys, his wife,
and his children. . . .
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The District Court
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[Judge Motz found that as a lawfully admitted alien with a
substantial connection to the United States, al-Marri was
entitled to due process before he could be deprived of his
liberty. But she also acknowledged that in Hamdi v.
Rumsfeld, 542 U.S. 507 (2004), the Supreme Court found
that Congress had constitutionally authorized the
President to order the military detention, without the
criminal process ordinarily required by the Due Process
Clause, of persons who qualify as “enemy combatants.”
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The En Banc Ruling
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The court found that the AUMF authorized the
detention of enemy combatants
The court further found that Al-Marri had not been
given sufficient due process rights to show he
was not an enemy combatant.
Cert. has been granted.
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Torture
Initial Report of the United States of America to
the UN Committee Against Torture
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Torture does not occur in the United States except in
aberrational situations and never as a matter of policy.
When it does, it constitutes a serious criminal offence,
subjecting the perpetrators to prosecution and entitling
the victims to various remedies, including rehabilitation
and compensation. Although there is no federal law
criminalizing torture per se, any act falling within the
Convention’s definition of torture is clearly illegal and
prosecutable everywhere in the country, for example as
an assault or battery, murder or manslaughter,
kidnapping or abduction, false arrest or imprisonment,
sexual abuse, or violation of civil rights.
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