Federal Judiciary

Act now on U.S. detention, al-Marri argues

By Akin Gump Supreme Court Practice Group

UPDATE: The case has now been scheduled for Conference on Nov. 25, according to the Court’s electronic docket.

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Arguing that the scope of the President’s authority to detain an individual seized inside the U.S. remains “shockingly ill-defined,” lawyers for the only “war on terror” detainee being held in this country urged the Supreme Court on Monday to take on that issue promptly, and not wait for further lower court review.  In a reply brief filed for Ali Saleh Khalah al-Marri, his attorneys said the “need for prompt review” is great “because the authority the government is claiming is both unprecedented and unlimited.”

The filing of the reply appears to clear the way for the Court to consider the case of Al-Marri v. Pucciarelli (08-368) at its private Conference set for Tuesday, Nov. 25.

The Justice Department, in opposing review, urged the Court to let the case return to a U.S. District Court in South Carolina, where the Fourth Circuit Court had ruled the case should go so that al-Marri could have a more extensive opportunity to challenge his detention.  He was arrested at his home in Peoria, Ill., and has been held at the U.S. Navy brig in Charleston, S.C.  At the time of his original seizure, he was legally in the U.S. and attending graduate school.  The Fourth Circuit, while upholding the President’s domestic detention power in a case like al-Marri’s, concluded that he had not has a sufficient court review of his habeas challenge.  The Justice Department opposition brief also made a full-scale defense of the detention authority at stake.

In reply, al-Marri’s counsel argued that “the dispositive legal question in this case is whether a terrorism suspect lawfully residing in the United States can be detained by the military, potentially for life, without criminal trial. A ruling by this Court that such detention is unlawful would put an immediate end to this action, avoid what may be years more of extensive district court and appellate proceedings, and still allow the government the option of pursuing a criminal prosecution.”

Delay. however, would “severely prejudice” al-Marri, “leave open the threat that other persons residing in the United States (including American citizens) could likewise be subject to military detention by presidential proclamation, and distort ongoing criminal matters by giving the government unjust leverage over defendants in terrorism cases.”

On the constitutionality of domestic detention, the reply contended that the Fourth Circuit read into the post-9/11 Resolution passed by Congress “an unexpressed and unprecedented congressional authorization for the military to seize any person in the United States that the president declares an ‘enemy combatant,’ and then to hold that person in military custody based on a government official’s hearsay declaration.”

Full post as published by SCOTUSBLOG on November 10, 2008 (boomark / email).