Federal Judiciary

“Yoo memo” goes to court

By Akin Gump Supreme Court Practice Group

Lawyers for the only detainee still being held by the military inside the U.S. have asked the Fourth Circuit Court to consider the controversial March 2003 Justice Department advisory memo on terrorism law as part of that court’s coming ruling on the legality of this detention. In this filing on Monday in the Circuit Court, attorneys for Ali Saleh Kahlah Al-Marri enclosed the memo signed by former Justice Department legal counselor John Yoo, a document that the Justice Department declassified and released just last month.

The lengthy text of the Yoo memo is available in two parts; the first can be found here, and the second here.  (Thanks to Marty Lederman of Georgetown Law School and this blog for the links to the memo. Thanks to the Brennan Center for Justice for a copy of Monday’s filing.)

Al-Marri is a Qatari national who was arrested in December 2001 at his home in Peoria, Ill., where he was attending Bradley University. He has since been declared an “enemy combatant,” and continues to be imprisoned in a Navy brig in Charleston, S.C.  The Circuit Court, sitting en banc, held a hearing Oct. 31 on his challenge to his designation as an enemy. A decision is still being awaited. An earlier post discussing the case can be found here.

In Monday’s filing, Al-Marri’s counsel argued that the Yoo memo “further demonstrates that al-Marri’s detention lacks legal basis.”  It notes that the memo has been “repudiated by the Justice Department.”  The filing also points out that the government has indicated that President Bush relied in part on the memo in deciding to name Al-Marri as an “enemy combatant.”

“In sum,” the filing argues, “the President designated al-Marri an ‘enemy combatant’ based upon an erroneous legal analysis, and to uphold his detention is to endorse the result of an analysis that even the Justice Department has repudiated.”

Full post as published by SCOTUSBLOG on April 08, 2008 (boomark / email).