Chapter 26 - Military Detention Part II

2 Padilla v. Hanft, 423 F.3d 386 (2005) 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?

3 Al-Marri v. Pucciarelli, 534 F.3d 213 (2008) 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 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.

4 The Detention Order 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.”

5 The Confinement 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....

6 The District Court [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.”

7 The En Banc Ruling 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.

Torture

9 Initial Report of the United States of America to the UN Committee Against Torture 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.