Enemy Combatant Case Mooted at HLS

BY PHIL TEDESCO

On Tuesday, October 16th, Ames Courtroom was filled with 150 students who were there to watch Jonathan Hafetz, counsel at the Brennan Center for Justice, moot his upcoming argument before the 4th Circuit’s en banc rehearing of Al-Marri v. Wright.

The event, presented by Dean Kagan, the American Constitution Society, the Federalist Society, and the Appellate Practice Clinic, featured a panel of Professors Jonathan Hacker, Martha Minow, Gerald Neuman, and Mark Tushnet, along with Mr. Mark Fleming ’97, a litigation partner at Wilmer Hale.

The case presents some of the most pressing war-on-terrorism legal questions and implicates, among other things, the Authorization of the Use of Military Force, the US PATRIOT Act, the Military Commissions Act, the Due Process Clause, the Suspension Clause, and the President’s claims to inherent authority as commander-in-chief. The court must decide whether the President has the authority to seize someone in the United States and detain him there indefinitely as an enemy combatant without review.

Mr. Hafetz is representing Ali Saleh Khalah al-Marri, a Qatari national who was initially arrested in Peoria, Illinois by civilian authorities and charged with domestic crimes. Mr. al-Marri was legally in the United States and was a student at Bradley University. While the criminal proceedings were underway, President George W. Bush issued an Executive Order directing the military to seize him as an enemy combatant. Mr. al-Marri has been held in South Carolina without charge for the past four years.

By seeking habeas corpus, Mr. Hafetz is contending that the government must charge and try him or else release him. A panel of the Fourth Circuit ruled for Mr. al-Marri on June 11, where Judge Diana Gibbon Motz, writing for the majority, held, “Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri.” Judge Hudson, in dissent, argued, “In my view, the appellant was properly designated as an enemy combatant by the President of the United States pursuant to the war powers versted in him by Articles I and II of the United States Constitution and by Congress under the Authorization to Use Military Force.”

The court initially had to find jurisdiction, despite the Military Commissions Act, before reaching the merits. Finding for al-Marri will not mean that the government must release him; instead, the government would be forced to charge him with a crime and prosecute him or release him. The entire court granted the government’s petition to rehear the case en banc. Arguments are scheduled for October 31, 2007.

The moot offered students the opportunity to watch as an outstanding panel of faculty and practitioner experts pressed an advocate on his or her arguments in an exciting and important case, while the advocate sought to parry the onslaught. After the questioning, the panel offered feedback, and students posed questions.

Many groups across campus promoted the event, including the National Security and the Law Association, the Harvard Immigration Project, and HLS Advocates for Human Rights. Dean Kagan initially conceived the idea of sponsoring this series several years ago, and it has hosted three moots this year: NY State Board of Elections v. Lopez-Torres, Medellin v. Texas, and now Al-Marri v. Wright.

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