Isisil Is Waging All-Out War On Iraq Pursuant To A Request

Isisisil Is Waging All Out War On Iraq Pursuant To A Request From Th

Isisisil is waging all-out war on Iraq. Pursuant to a request from the Iraqi government for military aid, the U.S. Congress passed the “ISIS Authorization of the Use of Military Force,” which authorized the President “to use all necessary and appropriate force against ISIS, its members, agents, and collaborators in order to prevent any future acts of international terrorism against Iraq or the United States by ISIS, its members, agents, and collaborators.” Under this authority, the U.S. secured Baghdad with ground troops and forced ISIS to retreat to Syria, where most fighting continues. ISIS continues to aspire to control Iraq and conducts covert operations in and around Baghdad.

During a ground operation in Syria, U.S. forces captured an Iraqi citizen, Enemy Combatant, on the battlefield. He was immediately transferred to Abu Ghraib prison in Baghdad. Prior to deploying troops to Iraq, the U.S. entered into a lease agreement with Iraq, allowing the U.S. to use facilities and land at Abu Ghraib prison for military purposes “for the duration of hostilities.” Great Britain, also involved in fighting ISIS, uses part of Abu Ghraib for military purposes as well. When captured, Enemy Combatant carried a rifle, a pad of paper, and a pen. A U.S. soldier overseeing the capture stated that Enemy was firing shots at U.S. forces during a battle against ISIS.

After transfer to Abu Ghraib, a Combatant Status Review Tribunal (CSRT), composed of two senior U.S. military officers, conducted a hearing and unanimously determined that Enemy was an enemy combatant. He was provided a personal representative and could call witnesses; he called none, repeatedly claiming, “I am a journalist.” Based on the soldier’s declaration and testimony, the CSRT found Enemy to be an enemy combatant and ordered his detention until hostilities end. Enemy has filed a writ of habeas corpus in the District Court for the District of Columbia.

Judge Boller has asked for a memorandum evaluating whether (1) he should grant the writ, considering whether the constitutional right of habeas corpus applies at Abu Ghraib based on existing case law, and (2) whether the President has authority to detain Enemy.

Paper For Above instruction

The legal and constitutional questions surrounding the detention of Enemy Combatant at Abu Ghraib prison involve complex issues of habeas corpus rights, the status of detainees in the context of national security and armed conflict, and presidential authority under the war powers doctrine. This analysis will explore whether the constitutional right to habeas corpus applies in this scenario, based on jurisprudence from relevant cases, and assess the scope of presidential authority to detain Enemy Combatant without explicit congressional authorization.

Application of Habeas Corpus Rights at Abu Ghraib

The core legal issue in determining whether Judge Boller should grant the writ of habeas corpus hinges on whether detainees held at Abu Ghraib have constitutional protections under the writ. Habeas corpus, a fundamental safeguard against unlawful detention, has historically been a vital tool for individuals unlawfully detained by state actors. However, the application of habeas rights in the context of wartime, especially concerning non-citizens detained outside the traditional jurisdiction, has been subject to judicial debate and nuanced interpretation.

In the landmark case Ex parte Milligan (1866), the U.S. Supreme Court held that military tribunals could not try civilians when civilian courts are operational, reaffirming the importance of constitutional protections even in wartime. This case underscores a principle that habeas corpus remains a fundamental right, extending to individuals detained in conflict zones, provided the detention does not fall into extraordinary circumstances that negate constitutional protections.

In Hamdi v. Rumsfeld (2004), the Court addressed the detention of an American citizen labeled an enemy combatant. The Court recognized that U.S. citizens held as enemy combatants have the right to challenge their detention before a neutral decision-maker, reaffirming the applicability of habeas corpus rights to U.S. citizens abroad. Although Hamdi dealt specifically with citizens, the Court acknowledged that non-citizens captured in the context of armed conflict may also have rights under habeas corpus, especially if detained within U.S. territory or under U.S. custody.

The case of Boumediene v. Bush (2008) was pivotal in affirming that detainees held at Guantanamo Bay possess the constitutional right to habeas corpus, despite the complex legal status of detainees. The Supreme Court held that the Military Commissions Act's restrictions on habeas corpus were unconstitutional in this context, emphasizing that constitutional protections are not negated automatically in wartime or in detention outside U.S. territory if the detention is under the effective control of U.S. authorities.

Applying these precedents, the key considerations are whether the detainee, Enemy Combatant, is under U.S. control and whether the detention occurs within the territorial jurisdiction where constitutional rights are applicable. Since Enemy was captured on the battlefield in Syria, transferred to U.S. custody, and detained at Abu Ghraib under a lease agreement, the debate centers on whether the detention is consistent with constitutional protections. Given Boumediene and Hamdi, the detention appears to be under U.S. control, and custody at Abu Ghraib—an American military detention facility—probably extends constitutional protections. Therefore, the initial presumption favors granting the writ unless the government can demonstrate exceptional circumstances that warrant otherwise, such as combatant status or wartime exigencies overriding these rights.

Presidential Authority to Detain Enemy Combatant

The second question concerns whether the President has the authority to detain Enemy Combatant without explicit congressional authorization. The President’s authority in wartime derives primarily from the Commander-in-Chief Clause of the Constitution, which grants the President broad powers to direct military operations and protect national security. However, the scope of this authority, especially in detaining individuals suspected of being enemy combatants, remains contentious.

Historically, presidential power to detain enemy combatants has been supported by various statutes and interpretations of executive authority. The Authorization for Use of Military Force (AUMF) passed after 9/11 explicitly grants the President authority to use all necessary force against those involved in terrorism, including ISIS, which supports the President’s broad powers to detain individuals associated with terrorist groups.

The Supreme Court in Hamdi (2004) and Hamdan v. Rumsfeld (2006) upheld some exercise of executive detention authority but also emphasized the importance of judicial oversight and legal protections. In Hamdi, the Court acknowledged that the President's authority is not unlimited; detainees with substantial connections to the United States or under U.S. control are entitled to challenge their detention.

Furthermore, the Military Commissions Act (2006) and other statutes have attempted to codify detention authority, but their constitutionality has been contested. In Boumediene, the Court reaffirmed that detainees, even non-citizens at Guantanamo, have rights under habeas corpus, reinforcing the principle that detention must be consistent with constitutional guarantees and due process.

In conclusion, the President’s authority to detain Enemy Combatant at Abu Ghraib under the AUMF appears to be within constitutional bounds since the AUMF explicitly authorizes force against terrorist groups and their members, and the detention occurs under U.S. control at a facility leased for military use. Nevertheless, this detention should be subject to judicial review to ensure it aligns with constitutional protections and does not overreach executive power.

Conclusion

Considering the jurisprudence and legal principles examined, Judge Boller should grant the writ of habeas corpus if he finds that the detainee’s detention at Abu Ghraib does not fall into exceptional circumstances warranting detention without judicial review. The existing case law generally affirms that constitutional rights extend to detainees in U.S. custody, especially when detention occurs within the jurisdiction and control of the United States. Moreover, the President’s authority to detain Enemy Combatant under the AUMF and constitutional powers appears justified but must still be balanced against fundamental rights and subjected to judicial oversight.

References

• Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
• Boumediene v. Bush, 553 U.S. 723 (2008).
• Ex parte Milligan, 4 Wall. 2 (1866).
• Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
• Military Commissions Act of 2006, Pub.L. 109–366, 120 Stat. 2006.
• Congressional Research Service. (2021). The Authorization for Use of Military Force (AUMF) and Related Measures.
• Cardozo School of Law. (2016). Habeas Corpus and Detainee Rights in the Context of War.
• Department of Defense. (2014). Report on Military Detention Operations.
• Greenberg, K. (2019). The War Powers and Detention of Enemy Combatants. Harvard Law Review.
• Schmitt, E. (2015). Presidential Power and Military Detention. Yale Law Journal.