The Necessary Evil of Preventive Detention in the War on Terror: ...

As is detailed in chapter 3, the administration transferred Padilla to the criminal justice system in 2005 presumably to avoid a showdown at the Supreme Court over the enemy-combatant policy.¹⁸ Padilla was subsequently convicted of terrorism-related charges and sentenced to seventeen years in prison in 2007.

As of this writing, it appears that Ali Saleh Kahlah al-Marri is the only U.S. person currently being detained as an enemy combatant. On July 15, 2008, the full United States Court of Appeals for the Fourth Circuit ruled in a split decision 5–4 that the administration does have the authority to designate U.S. persons captured in peaceful civilian areas as enemy combatants but that the government needs to submit more than a declaration based on hearsay to support such a designation, or needs to explain why a declaration is the “most reliable available evidence” to support indefinite detention of al-Marri as an enemy combatant.¹⁹ Consequently, the Fourth Circuit remanded the case for further evidentiary proceedings to allow al-Marri to better challenge the underlying evidence. On September 19, 2008, al-Marri requested an interlocutory appeal to the Supreme Court arguing that the Joint Resolution did not authorize his indefinite military detention without criminal charge or trial based on the government’s assertions that he conspired with al Qaeda. In sum, as of this writing, the Supreme Court has not ruled on the constitutional question of whether U.S. citizens, such as Padilla, or legal residents, such as al-Marri—who are not captured on a traditional battlefield—can be detained indefinitely as enemy combatants with no criminal charges.

Policy Concerns

Independent of whether the enemy-combatant policy as applied to U.S. persons is ultimately found to be lawful, there is the significant question of whether it is an effective policy. Because there has not been another terrorist attack in the United States since 9/11, and because, as is addressed in chapter 3, information from captured enemy combatants has resulted in the thwarting of specific terrorist plots and the capture of more al Qaeda operatives, it can be argued that the enemy-combatant policy has made the nation considerably safer.