Constitution Project Urges Sup. Ct. To Hear Al-Marri Post-9/11 Domestic Detention Case

In a friend of the court brief being filed today, the Constitution Project and the Rutherford Institute urge the U.S. Supreme Court to examine the Bush administration's indefinite military detention without trial of a legal U.S. resident. At issue in al-Marri v. Pucciarelli is whether the U.S. military has the authority to detain Ali Saleh Kahlah al-Marri. The Constitution Project, an independent bipartisan think tank, and the Rutherford Institute, an international civil liberties organization, both seek to promote and defend constitutional safeguards and civil liberties.

Al-Marri, a legal U.S. resident, was arrested at his home in Peoria, Illinois, and was transferred to military detention in South Carolina. He has been held for the past five years on the administration's pronouncement that he is an "enemy combatant" and that the executive branch has inherent and statutory authority to detain civilians within the United States on that basis.

Sharon Bradford Franklin, Senior Counsel at the Constitution Project, said: "The power that the Bush administration claims in indefinitely holding al-Marri in military custody would also allow it to hold any 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 U.S. Supreme Court should take this case to reign in the Bush administration's unconstitutional detentions."

In a five-to-four vote this 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.

The Constitution Project's brief also encourages the Supreme Court to take this case on the grounds that the executive branch has consistently maneuvered to evade Supreme Court review of its broad claims of detention authority. Only two business days before the administration's brief opposing Supreme Court review was due in the Padilla "enemy combatant" case, the Bush administration switched tactics and charged Jose Padilla in a civilian court. The Constitution Project's brief explains that the Court now has an opportunity to address the same expansive claim of domestic military detention authority raised in Padilla, and urges the Court to take the case and reject this unconstitutional claim.

The amicus brief will be available here by 9 a.m. Friday morning. To speak with an expert, please contact Daniel Schuman at dschuman@constitutionproject.org or call 202-580-6922.