Reno, others challenge wartime detention policy
on Nov 21, 2006 at 7:38 pm
A wide array of friends-of-court, led by former U.S. Attorney General Janet Reno, have urged the Fourth Circuit Court to bar the federal government from detaining without charges any terrorism suspect not captured on a foreign battlfield. In six separate briefs filed on Monday and made available Tuiesday, the amici argue that Ali Saleh Kahlah Al-Marri — arrested at his home in Peoria, Ill., nearly five years ago and held captive since — must either be prosecuted in regular criminal court, or released. Al-Marri is a Qatar national who was a college student when taken prisoner.
The brief filed by Reno, along with a former deputy U.S. solicitor general, Philip A. Lacovara, and six former U.S. attorneys contended that “the existing criminal justice system is more than up to the task of prosecuting and bringing to just those who plan or attempt acts within the United States — without sacrificing any of the rights and protections that have been the hallmarks of the American legal system for more than 200 years.” The brief provides a list of successful terrorism-related prosecutions in recent years.
A goup of professors listed as specialists in the law of war told the Circuit Court in one of the new briefs: “In this case, the government seeks to expand military jurisdiction over individuals in the United States far beyond the boundaries set by the law of war….If the government’s position is accepted, individuals who would ordinarily be considered civilians under the law of war would be subject to indefinite military detention without charge or trial based on the president’s determination that they are supporters of groups like Al Qaeda.”
The Fourth Circuit is considering an appeal by Al-Marri (docket 06-7427) challenging his long-term detention and confinement at a Navy brig in South Carolina. He is the only person captured in the U.S. during the war on terrorism now being held without charges, either in civilian or millitary tribunals. The government has sought to head off his appeal, arguing that the new Military Commissions Act of 2006 bars Al-Marri from pursuing any habeas challenge to his capture and imprisonment. Al-Marri’s formal response to the government’s motion to dismiss is due at the Circuit Court on Dec. 12. Briefs on the merits of his appeal are due in January.
The brief by Reno and other former Justice Department officials can be found here. The law of war specialists’ brief is here.
An amicus brief discussing Al-Marri’s status as a non-citizen living in the U.S. as a factor in determining whether he is subject to prosecution in civilian court for treason can be found here. A brief from several advocacy groups on the general question of wartime power over suspects captured in this country is here.
Law professors who teach evidence and legal procedure filed a brief discussing the role of hearsay in designating Al-Marri an “enemy combatant.” That brief can be found here. Human rights advocates have filed their views on the impact of international rights law on Al-Marri’s situation. That brief can be found here.
