The United States has quite wide concern to the citizen detainees relating to the current “war on terrorism”. In the Rumsfeld v. Padilla (U.S. citizen arrested in Chicago) and al-Marri v. Pucciarelli (legal resident arrested in Peoria, Illinois) cases, respectively, the Bush administration has arrested the citizen and permanent legal resident seized in the United States according to the laws of war. Padilla was contested in the Supreme Court before the Fourth Circuit confirmed the powers of the executive power to hold citizens captured in the United States canceling the decision of the lower court. Before the case could reach the Supreme Court again, it was quite controversial question by the Bush administration whether to transfer Padilla to the criminal justice system. In al-Marri case, the Fourth Circuit confirmed the President’s right to detain legal residents seized in United States. Nevertheless, the Fourth Circuit point of view was not released by the Supreme Court, so judicially declared the President’s power to detain citizens seized in the United States remains on paper. Once again, according to the indictment to the Supreme Court, case was rendered controversial while the government (headed by the President Obama) transferred al-Marri to criminal justice. In contrast to Padilla, however, the Supreme Court quashed the decision of the Fourth Circuit in Al-Marri case.
Without instructions of the Supreme Court on Padilla and al-Marri cases, some questions on the value of the President’s authority in detaining combatants in the War on Terror still remains. While the Fourth Circuit decision in Padilla still worth, either the Supreme Court would finally ratify the decision remains to be discussed. In addition, with the Fourth Circuit decision in al-Marri vacated, it is the question whether the President has the statutory power to detain legal permanent residents seized in the United States within the framework of the continuing conflict against Al Qaeda, the Taliban, and related forces. Also, whether the President has that power, if that authority emanates from the AUMF, the President inherent power under Article II of the Constitution, or them both, is also unclear.
If the government should ever use that power to detain citizens or legal permanent residents seized in the United States as a matter of policy is a question for President Obama and future presidents. Summing up the Supreme Court has not regulated the key constitutional issue of if U.S. citizens (Padilla) or legal residents (al-Marri) can be arrested for an indefinite period as enemy combatants without criminal matters. As we see, we do not have certain answer.
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