Federal Judiciary

A move to apply Boumediene

By Akin Gump Supreme Court Practice Group

Lawyers for the only war-on-terrorism detainee being held inside the U.S. moved on Monday to keep his challenge going in the courts, saying the Supreme Court’s ruling last Thurday on Guantanamo Bay captives’ rights applies on the homefront, too.  In a letter to the Fourth Circuit Court in Richmond, Va., attorneys for Ali Saleh Kahlah Al-Marri urged that Court to deny the federal government’s plea that his case be dismissed. The letter can be read here.

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.  Thus, the appeal has the chance of producing at least a partial answer to a question the Supreme Court left open in the Guantanamo case: whether the President has authority to order the long-term detention, without charges, of individuals captured and held by the U.S. military.  Al-Marri’s counsel contends that the President clearly does not have that authority when the capture was made in the U.S., far from any battlefield.  Anything the Circuit Court says on that point will be parsed closely to see if it has any impact on foreign captures.

In Al-Marri’s case, a three-judge panel of the Fourth Circuit, in a split decision, ruled that Congress’ move in 2006 to strip the federal courts of any authority to hear habeas challenges by detainees did not apply in Al-Marri’s situation; he was captured in Peoria, Ill.

That is a ruling being challenged by the Bush Administration before the en banc Court.  In the new Al-Marri filing, his attorneys said that, even if the court-stripping provision of the Military Commission Act did apply to his case, the Supreme Court’s ruling in Boumediene v. Bush (06-1195) has struck down that provision.

While the Boumediene decision gave Guantanamo Bay prisoners a constitutional right to pursue habeas relief, including release from confinement, Al-Marri has already had habeas review in which he challenged presidential authority.  Thus, it would be unlikely that the Fourth Circuit would now send his case back to District Court for another habeas proceeding.

Full post as published by SCOTUSBLOG on June 16, 2008 (boomark / email).