Federal Judiciary

Government resists new Al-Marri maneuver

By Akin Gump Supreme Court Practice Group

The Justice Department on Friday suggested to an appeals court that a new dispute over destruction of tape recordings of harsh tactics used in interrogating a detainee are beyond that court’s reach in a pending case. In a letter to the Fourth Circuit Court in Richmond, VA, found here, Deputy U.S. Solicitor General Gregory G. Garre contested a new challenge by lawyers for Ali Saleh Kahlah Al-Marri, the only terrorism suspect still held by the military inside the U.S.

Al-Marri’s counsel had made a new argument to the Fourth Circuit on May 14 that his detention at a U.S. Navy brig in Charleston, S.C., is illegal because he was sent there for “the illegitimate purpose” of interrogating him.  (A post on this blog about this argument and the filings in involved can be read here.) The proof of that claim, his lawyers said, was a government’s admission in another Al-Marri case that it had made recordings of Al-Marri in confinement at the brig, but had destroyed some of those.

Responding Friday morning, Garee dismissed this claim, saying that the government had previously offered its reasons for confining Al-Marri as an “enemy combatant,” and that Al-Marri’s counsel declined to counter those reasons — even though, Garre added, they “knew that he was interrogated.”

The explanation was provided to a federal District Court in South Carolina in an earlier phase of Al-Marri’s detention case, Garre recalled, and he contended that Al-Marri has provided no reason to redo that inquiry in the Fourth Circuit.  The Fourth Circuit, in Al-Marri v. Pucciarrelli (06-7427) now has under advisement, en banc, Al-Marri’s contention that President Bush had no authority to designate him as an enemy and to order his detention.  Al-Marri’s May 14 challenge was made in that proceeding; a decision by the en banc Court is still awaited.

Garre also sought to dissuade the en banc Fourth Circuit from examining in the present case the claims by Al-Marri’s lawyers — also made on May 14 — that the interrogation of the detainee in the4 brig was “brutal.”  The conditions of the confinement in the brig, Garre assserted, “are not relevant to the issues” now before the Circuit Court.  Al-Marri’s defense team is challenging those conditions before a District Court in South Carolina, Garre added, and “that action, not this appeal, provides the appropriate vehicle for considering such allegations.”

The case over conditions in the brig (Al-Marri v. Gates, District Court docket 05-2259) currently involves a plea by his lawyer for relaxation of the restrictions on his activity.  At present, the case also involves a dispute over the destruction of tapes of Al-Marri’s interrogation.  His lawyers are seeking new court order that would seek to ensure that no more tape recordings or documents relating to his questioning be destroyed.  The latest Al-Marri filing, made on May 19, suggesting that government lawyers had misled the courts about tape destruction, can be downloaded here.

Full post as published by SCOTUSBLOG on May 23, 2008 (boomark / email).