Conference Call: Does Place of Arrest Matter in Terror Cases?

The following column, featuring a selected petition up for consideration at the Justices’ private conference on November 25, appears in today’s edition of Legal Times (available to subscribers here). To access the certiorari-stage filings, or see other cases on the list of petitions to watch at Friday’s conference, click here.

Since the attacks of Sept. 11, the government has classified hundreds of men as “enemy combatants.” But only one suspect currently sits in military detention inside the United States: Ali Saleh Kahlah al-Marri, a Qatari native arrested nearly seven years ago while taking graduate courses in Peoria, Ill.

Upon the order of President George W. Bush himself, al-Marri has been held in isolation since mid-2003 in a naval brig in Charleston, S.C. For more than four years, federal courts have wavered on whether the president can subject suspected terrorists captured inside the country — as opposed to on a foreign battlefield — to indefinite military detention.

On Nov. 25, during the justices’ annual pre-Thanksgiving conference, the Supreme Court will consider whether to answer the question. If it decides to grant certiorari, an announcement could come the same day. (The case is No. 08-368, al-Marri v. Puciarelli.)

Accompanied by his wife and five children, al-Marri entered the United States on a student visa on Sept. 10, 2001, to begin graduate studies at Bradley University, where he had received his bachelor’s degree in the early 1990s. He came under suspicion soon after the attacks, though, and was ultimately charged with credit card fraud, identity theft, and making false statements on bank applications and to the FBI.

In June 2003, less than a month before al-Marri was to stand trial, authorities dismissed the indictment after President Bush declared him an “enemy combatant” and ordered the Justice Department to transfer him to the Pentagon for military detention. The government first disclosed its specific allegations more than a year later, in response to a habeas petition filed by al-Marri’s counsel.

According to a then-classified declaration signed by a Pentagon intelligence officer, al-Marri trained at al-Qaida camps in Afghanistan in the late ’90s and was later personally introduced to Osama bin Laden by Khalid Sheikh Muhammad, the admitted mastermind of the 9/11 attacks. After reportedly volunteering to do anything al-Qaida requested, al-Marri was sent to wait as a “sleeper agent” inside the country and investigate ways to disrupt the U.S. banking system.

Once in the United States, the declaration says, al-Marri maintained communications with both Muhammad and al-Qaida financier Mustafa Ahmed Al-Hawsawi. During a forensic search of al-Marri’s laptop, authorities found Arabic lectures by bin Laden, bookmarked Web sites on computer hacking, files containing more than 1,000 credit card numbers, and extensive technical information on cyanide poisoning that, as the declaration puts it, “far exceeds the interests of a merely curious individual.”

Following the recommendation of a magistrate judge, who found the declaration provided sufficient basis for detention, Judge Henry Floyd of the U.S. District Court for the District of South Carolina denied al-Marri’s habeas petition in August 2006. A divided panel of the U.S. Court of Appeals for the 4th Circuit originally reversed the decision, holding that the government either had to deport or release al-Marri if it didn’t charge him with a crime.

This past July, a fractured en banc court reversed — holding, by overlapping 5-4 votes, that the government’s allegations justified al-Marri’s indefinite military detention, but that authorities had not given him a sufficient chance to rebut the accusations. On remand, wrote Judge William Traxler, the lone member in both majorities, the government either would have to produce further evidence to support its allegations — unless doing so would threaten national security or otherwise be too burdensome.

That same afternoon, al-Marri’s attorneys — led by Jonathan Hafetz, formerly of the Brennan Center for Justice in New York and now with the American Civil Liberties Union in Washington — said they intended to appeal the part of the decision upholding the president’s detention power. (For its part, the government said it would respond to the 4th Circuit decision on remand.)

Citing authority stretching back to the Declaration of Independence, the petition for certiorari maintains that persons arrested inside the country have always possessed a presumption of innocence and, under the Bill of Rights, the right to a speedy and open criminal trial. In the rare instances where Congress has approved indefinite detention, the petition says, it laid out specific limits on the president’s power.

By contrast, Hafetz says, the Authorization for Use of Military Force passed in September 2001 says nothing about civilian detention. Moreover, he argues, Congress deliberately withheld indefinite detention powers when it passed the USA Patriot Act several weeks later — instead requiring the Justice Department to initiate criminal or deportation proceedings of aliens suspected of terrorism.

Even if Congress justified indefinite detention in some circumstances, the petition contends, transferring al-Marri to military custody was neither a “necessary” nor “appropriate” measure — as the AUMF requires — for a defendant already incarcerated and on the verge of trial.

Remanding the case, Hafetz says, would only subject al-Marri to continued isolation while leaving unanswered basic questions over presidential power to order indefinite domestic detention.

In one of five amicus briefs urging the Court to grant certiorari, a group of retired federal judges and former Justice Department officials — including former Attorney General Janet Reno — maintains the criminal justice system has proven itself capable of prosecuting terrorism cases.

Opposing certiorari, the government stresses that the Court, at this stage in the case, must accept the government’s allegations as true. Likening al-Marri to the 9/11 attackers themselves, the brief in opposition says Congress certainly wanted the president to be able to detain those determined to carry out future strikes against the country.

From a procedural standpoint, Solicitor General Gregory Garre further argues the Court need not grant certiorari when al-Marri could ultimately prevail on remand. Sending the case back to district court would allow lower courts to flesh out the details of the government’s evidentiary burden, Garre says.

And since al-Marri is currently the only enemy combatant detained inside the country, the government says, no other cases will be implicated by the issues in his appeal.

—Ben Winograd

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