Unit 5 Memo

ISIS/ISIL 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, it 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.” Pursuant to this AUMF, the U.S., under direction of the President, secured Baghdad with ground troops and forced ISIS to retreat to Syria, where the majority of the fighting now takes place. ISIS still desires to take over Iraq and occasionally conducts covert operations in and around Baghdad.

During a ground invasion in Syria, U.S. armed forces captured Enemy Combatant, an Iraqi citizen, on the battlefield. U.S. forces immediately transferred Enemy to Abu Ghraib prison, in Baghdad. Prior to sending troops to Iraq, the US entered into a lease agreement with Iraq, which, “for the duration of hostilities,” “consigned all facilities and land located at Abu Ghraib prison owned by Iraq, for use by the United States for military purposes.” Great Britain, which also sent troops to Iraq to fight ISIS, also uses part of Abu Ghraib prison for military purposes.
When captured, Enemy carried a rifle, a pad of paper, and a pen. The U.S. soldier that captured Enemy issued a sworn declaration stating that Enemy was firing shots at U.S. armed forces and was captured during, and from the middle of, a battle against ISIS. After being transferred to Abu Ghraib, the Combatant Status Review Tribunal, composed of two senior U.S. military officers, conducted a hearing and unanimously determined that Enemy was an enemy combatant. At the hearing, Mr. Combatant was provided a “personal representative” and allowed the opportunity to call witnesses; he called none. Instead, he continuously repeated, “I am a journalist.” Based on the declaration of the solider that captured Enemy and the testimony of another solider, the CSRT determined Enemy to be an enemy combatant and ordered that he be detained until hostilities were over.
Enemy filed a writ of habeas corpus in the District Court for the District of Columbia. The writ came to Judge Boller. You are a clerk for district Judge Boller. Judge Boller asks you to write a memorandum discussing whether (1) he should grant the writ (in other words, does the constitutional right of habeas corpus apply at Abu Ghraib prison based on the cases in this Unit?) and (2) whether the President has authority to detain Enemy. (Note: the second question can and should be answered in a paragraph or two.) See the syllabus for the due date of this assignment. Organize your memo by providing an introduction and then having a separate section for each question.

Answer:

Memorandum

Subject: Habeas Corpus and Presidential Authority in Relation to the Detention of Enemy Combatant

Introduction: The case of Enemy Combatant, who was captured by U.S. armed forces in Syria and transferred to Abu Ghraib prison in Baghdad, raises important legal questions about the constitutional right of habeas corpus and the authority of the President to detain individuals considered enemy combatants.

I. Does the constitutional right of habeas corpus apply at Abu Ghraib prison? The U.S. Constitution guarantees the right of habeas corpus, which allows individuals to challenge their detention and seek judicial review. However, the scope of this right has been subject to ongoing debate and judicial interpretation, particularly in the context of the ongoing conflict against ISIS.

It has been established that the right of habeas corpus extends to U.S. citizens and individuals detained within U.S. territory. However, it remains unclear whether this right applies to individuals detained at Abu Ghraib prison in Baghdad, which was consigned to the U.S. for military purposes for the duration of hostilities.

While the U.S. Supreme Court has held that habeas corpus can be limited in times of emergency, the extent to which this right can be limited in the context of foreign detention is still unsettled. Therefore, the applicability of habeas corpus to the detention of Enemy Combatant at Abu Ghraib will likely require further judicial interpretation and analysis.

II. Does the President have the authority to detain Enemy Combatant? The President has been authorized by Congress under the “ISIS Authorization of the Use of Military Force” to use necessary and appropriate force against ISIS and its members, agents, and collaborators. This authorization has been interpreted as granting the President broad authority to detain individuals considered enemy combatants, including those captured on foreign battlefields.

The Combatant Status Review Tribunal, composed of two senior U.S. military officers, determined that Enemy was an enemy combatant based on the declaration of the soldier who captured him and the testimony of another soldier. While Enemy claimed to be a journalist, this claim was not supported by sufficient evidence, and he was given the opportunity to call witnesses but chose not to.

Based on the current legal framework and the determination of the CSRT, it can be argued that the President has the authority to detain Enemy Combatant as an enemy combatant until hostilities are over.

Conclusion: In conclusion, the applicability of habeas corpus to the detention of Enemy Combatant at Abu Ghraib prison remains unsettled and will likely require further judicial interpretation. However, based on the authority granted to the President under the “ISIS Authorization of the Use of Military Force” and the determination of the Combatant Status Review Tribunal, it can be argued that the President has the authority to detain Enemy as an enemy combatant until hostilities are over.

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