High Court Must End Al-Marri's Indefinite Detention

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 non-profit public policy research foundation, and the Rutherford
Institute, a non-profit conservative legal 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.

The amicus brief will be available online by close of business on Tuesday. To speak with our attorney
on this case, Sharon Bradford Franklin,
please contact Daniel Schuman at dschuman@constitutionproject.org
or call 202-580-6922.