Al-Marri seeks to keep case going
on Dec 13, 2006 at 11:07 am
UPDATE: Added three amicus briefs on Tuesday, 12/14 at noon. The can be found at the bottom of the post.
A college student who is a citizen of Qatar and a legal resident of the U.S., but who has been held by the U.S. military for three and a half years without criminal charges, is pursuing the most serious potential challenge to the President’s authority to order detention of a foreign national seized inside the U.S. for suspected terrorist links. On Tuesday, lawyers for Ali Saleh Kahllah al-Marri moved to keep that case alive in the face of a government plea that it be dismissed. (Thanks to the Brennan Center for Justice for providing the new Al-Marri brief, which can be found here.)
The case of Al-Marri v. Wright (docket 06-7427) is unfolding in the Fourth Circuit Court, which plans to hold a hearing on it early in Febvruary. The Justice Department, however, contends that the Circuit Court — and all other courts, including the Supreme Court — lost authority to decide the case when Congress recently passed the new court-stripping law, the Military Commissions Act of 2006. That law was enacted in mid-October, and less than a month later, the Justice Department urged the Circuit Court to dismiss Al-Marri’s appeal.
That case represents the broadest application the Department has yet proposed for the court-tripping provisions of the Act. It would extend them to a foreign national captured inside the U.S. at his home, not on a foreign battlefield, and to an individual who has not been accused of war crimes and who has never even had a “status review” of him as a terrorist suspect by any military tribunal. Several non-terrorism criminal charges against him were dismissed when the government decided to shift him to the military’s control, after President Bush designated him an “enemy combatant.” It is that designation that Al-Marri’s appeal is challenging.
Of all of the hundreds of pending habeas challenges by foreign nationals being held in military custody now, Al-Marri’s potentially goes the furthest, because it could sharply reduce the Executive Branch’s authority to round up foreign nationals inside the U.S. far from any battle zone as part of any anti-terrorism sweep. Al-Marri, then a graduate student, was captured at his home in Peoria, Ill., on Dec. 12, 2001, as a potential witness in the government investigation of the Sept. 11, 2001, terrorist attacks. He was named an “enemy combatant” and put in a military brig in South Carolina in June 2003; he has remained there since.
Because Al-Marri’s case is different from those of the foreign nationals being held at the U.S. military prison at Guantanamo Bay, Cuba (all captured overseas), his challenge to the government’s dismissal motion is in some ways broader in scope than any made by other habeas challengers. His claim of a right to pursue habeas is grounded in his status as a legal resident of the U.S., thus giving him a firmer constitutional basis for that claim.
And, because he has never had any review proceeding before a military panel or court, he lacks any opportunity to challenge his designation as an “enemy combatant” in any place other than in the civilian courts. His lawyers stress that point in suggesting that Congress not only did not intend to apply its court-stripping law to his case, but would have acted unconstitutionally if it had.
The Pentagon has sought to shore up its claim that the military can handle Al-Marri’s case by saying that it will give him a status review — but only if the federal courts first dismiss his habeas challenge. Al-Marri’s lawyers countered on Tuesday that such an after-the-fact maneuver cannot make the court-stripping law apply to his case. Along with the Al-Marri brief, three amicus briefs were filed; they can be found here and here and here.
