Constitution Project Applauds Supreme Court Cert. Grant in al-Marri case

The Constitution Project is pleased that the U.S. Supreme Court granted review today of al-Marri v. Pucciarelli to examine the Bush administration’s indefinite military detention without trial of a legal resident.

The Constitution Project, together with the Rutherford Institute, filed a friend of the court brief urging the Court to take the case to provide clarity on the scope of the executive branch’s detention power. The Constitution Project, an independent bipartisan think tank, and the Rutherford Institute, an international civil liberties organization, both seek to promote and defend constitutional safeguards and civil liberties.

“The Supreme Court’s decision to grant review will compel the incoming Obama administration to quickly focus on detention policy,” said Sharon Bradford Franklin , Senior Counsel at the Constitution Project. “We hope that President-Elect Obama will resoundingly reject the current administration’s breathtaking claim that the United States may hold a civilian in military detention indefinitely. The new administration should either charge or release Mr. al-Marri.”

At issue in al-Marri v. Pucciarelli is whether the military has the authority to detain Ali Saleh Kahlah al-Marri. Mr. Al-Marri, a legal resident, was arrested at his home in Peoria, Illinois, and was transferred to military detention in South Carolina . He has been held for the past five years on the administration’s claim that he is an “enemy combatant” and that the executive branch has inherent and statutory authority to detain civilians within the on that basis.

In a five-to-four vote this July, the U.S. Court of Appeals for the Fourth Circuit narrowly overturned a three-judge panel that had held that Mr. al-Marri should either be freed or charged as a civilian. Instead, in a fractured opinion, the en banc panel upheld the president’s authority to hold him in military detention without charge. A different five-to-four alignment of the judges concluded that he has the right to additional proceedings to determine whether he is an enemy combatant.

The friend of the court brief also encouraged the Supreme Court to take this case on the grounds that the executive branch has consistently maneuvered to evade Supreme Court review of its broad claims of detention authority. Only two business days before the administration’s brief opposing Supreme Court review was due in the Padilla “enemy combatant” case, the Bush administration switched tactics and charged Jose Padilla in a civilian court. The Constitution Project’s brief explains that the Court now has an opportunity to address the same expansive claim of domestic military detention authority raised in Padilla, and urges the Court to take the case and reject this unconstitutional claim.

To speak with an expert, please contact Daniel Schuman at or call 202-580-6922.

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