Constitution Project Hails Supreme Court Order to Vacate Lower Court Enemy Combatant Ruling

For Immediate Release: March 6, 2009
Contact: Daniel Schuman ; 202-580-6922;

Washington, D.C. – Today, the U.S. Supreme Court ordered the U.S. Court of Appeals for the Fourth Circuit to vacate (i.e., “void”) its ruling permitting the President to indefinitely detain individuals living legally in the U.S. that the government asserts are terrorists. In recent days, the Obama administration charged Ali Saleh Kahlah al-Marri with conspiracy and material support for terrorism and indicated its plan to prosecute him in a civilian criminal court.

The Constitution Project, joined by the Cato Institute and the Rutherford Institute, filed an amicus brief in the Supreme Court on the merits of Mr. Marri’s case in January, urging the Court to strike down as unconstitutional the indefinite military detention without trial of a legal resident. In addition, the Constitution Project, joined by the Rutherford Institute, previously had urged the High Court to accept Mr. Marri’s case for review.

The following statement can be attributed to Sharon Bradford Franklin, Senior Counsel at the Constitution Project:

“We are pleased with today’s Supreme Court order vacating the Fourth Circuit’s decision that had wrongly granted the President the power to indefinitely detain individuals without charge whom the government asserts are terrorists. We had hoped that the Supreme Court would have taken this opportunity to resoundingly reject the executive branch’s overbroad claims of detention power. However, we are relieved that neither this administration nor any future one will be able to rely upon as precedent the Fourth Circuit’s unfortunate decision that recognized an overbroad presidential detention power. We are pleased that Mr. Marri will finally get his day in court.”

Mr. Marri, a legal resident who was arrested at his home in Peoria, Illinois, had challenged the then-Bush administration’s claim that it had the power to hold him indefinitely in military detention without trial. The U.S. Supreme Court had scheduled argument in Mr. Marri’s lawsuit against the government for April 27, in which he alleged that neither federal law nor the Constitution authorize his imprisonment. Mr. Marri will now be transferred out of the military brig, and will have the opportunity to defend himself in court and to invoke the criminal justice protections the Constitution provides.

Please contact Daniel Schuman, Director of Communications and Counsel, if you would like to speak with an expert or obtain additional information, at 202-580-6922 or

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