High Court Must End Al-Marri’s Indefinite Detention

Constitution Project-High Court Must End Al-Marri’s Indefinite Detention

In an Amicus Brief, Conservative and Bipartisan Organizations Urge the Supreme Court to Overturn the Military Detention without Trial of Legal U.S. Resident

For Immediate Release: January 27, 2009
Contact: Daniel Schuman, 202-580-6922, dschuman@constitutionproject.org

In a friend of the court brief scheduled for filing later today, the Constitution Project, the Cato Institute, and the Rutherford Institute urge the U.S. Supreme Court to strike down the indefinite military detention without trial of legal U.S. resident Ali Saleh Kahlah al-Marri, which is before the High Court in al-Marri v. Spagone.

Sharon Bradford Franklin, Senior Counsel at the Constitution Project, said: “The power that the Bush administration claimed in indefinitely holding Mr. al-Marri in military custody would allow any administration to hold an American citizen in a military brig without filing criminal charges. This poses a grave threat to our constitutional system of checks and balances and to the rights of all Americans. The Obama administration should renounce this unconstitutional policy and either criminally prosecute or release Mr. al-Marri. If it declines to do so, the Supreme Court should strike down Mr. al-Marri’s indefinite detention as unconstitutional.”

The amicus brief argues that the Supreme Court should rule in favor of al-Marri on the grounds that the executive branch’s actions violate the Constitution’s separation of powers. It rejects claims that Congress authorized domestic military detention or that Article II of the Constitution grants the president “inherent power” to authorize such acts. It also asserts that upholding this detention power would undermine our criminal justice system by creating an incentive for the executive branch to rely on military detention without the need to prove criminal charges.

The Constitution Project, an independent bipartisan think tank, the Cato Institute, a nonpartisan think tank, and the Rutherford Institute, an international civil liberties organization, each promote constitutional safeguards and defend civil liberties.

The government arrested al-Marri, a legal U.S. resident, at his home in Peoria, Illinois, and later placed him in military detention in South Carolina. Al-Marri has been held for the past five years on the Bush administration’s declaration that he is an “enemy combatant.” President Obama ordered an interagency review of al-Marri’s detention, and Acting U.S. Solicitor General Edwin Kneedler successfully sought a 30-day extension to allow the new administration to conduct this review before filing the government’s brief. Argument is expected to take place during the court session scheduled to begin on April 20, 2009.

In a five-to-four vote last July, the U.S. Court of Appeals for the Fourth Circuit narrowly overturned a three-judge panel that had held that 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 al-Marri in military detention without charge. A different five-to-four alignment of the judges concluded that al-Marri has the right to additional proceedings to determine whether he is an enemy combatant. After this decision, the Constitution Project and the Rutherford Institute filed an amicus brief requesting that the Supreme Court grant certiorari.

Click here to view the merits stage brief of the Constitution Project, the Cato Institute and the Rutherford institute. To view all the other briefs filed in the case click here.

The Constitution Project is a politically independent think tank established in 1997 to promote and defend the fundamental tenets of our nation’s founding document. Click here to view more information about the Constitution Project.

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