A group of former federal judges and ex-officials of the Justice Department have urged the Supreme Court to take action that would channel prosecution of terrorists into the regular civilian courts, arguing that they are fully up to the task. The arguments came in an amicus brief, one of several amici filings submitted Thursday asking the Supreme Court to hear the new case of Al-Marri v. Pucciarelli (08-368).  That is the case that tests the power of the President to order the military to capture inside the U.S., and then hold indefinitely without criminal charges, an individual the government suspects of terrorist acts or support.

The Justice Department had been scheduled to file its brief opposing review on Thursday, but it obtained an extension of time to file; its brief is now due on Nov. 24.  If it files then, it would still be possible for the Court, if it is going to agree to hear the case, to consider and decide it during the current Term.

Former Attorney General Janet Reno, 12 former federal judges, and a group of former U.S. Attorneys or staff attorneys in the Justice Department filed their amicus brief to challenge the Fourth Circuit Court’s ruling upholding presidential authority to detain an individual who was legally in the U.S., but was suspected of terrorist links.  “It is essential,” they contended, “that the Court review the Fourth Circuit’s decision, which permits the government to forego the criminal process and insead implement a regime of indefinite Executive detention.”

Four other amicus briefs were filed Thursday — by retired military officers, found here; two by professors who teach constitutional law or legislation, found here and here, and one filed jointly by the Constitution Project and the Rutherford Institute, found here.

The former judges and federal legal officers contended that the Fourth Circuit ruling was “especially troubling because the animating force underlying it — the notion that indefinite executive detention is the only means of preventing alleged terrorist activity — is demonstrably false.  Congress has enacted a wide variety of statutes that may be used to effectively prosecute suspected terrorists….The criminal justice system has repeaedly demonstrated its ability to prosecute terrorism cases.”

If the Fourth Circuit decision is not overturned, the brief said, “we are gravely concerned that indefinite imprisonment of individuals within the United States will become increasingly common — that the government will choose to avoid crimiinal  prosecutions and the protections associated with them…”

The retired military officers, in their brief, said they were “very concerned that the military not be drawn inito civilian policing functions in the United States for which it is not well trained, which will inevitably lead to problems and detract from, and undermine its support in performing, its primary function of fighting and winning the nation’s wars.”  Limits on the use of the military in domestic law enforcement, they argued, are “an essential component of the fundamental American tradition of resisting military intrusion in civilian affairs.”

Six law professors told the Court that. while they differed in how the Court should decide the issues in the Al-Marri case, they believed the Court should rule on those issues as soon as it could.   The case, they said, raises basic issues on the proper scope of the Executive Branch’s authority to detain individuals seized inside the country, and on the individual rights of such persons.  Because much of the Court;s prior precedents on Executive power in wartime involved traditional conflicts, it is necessary to address basic issues arising out of a “non-traditional war.”

Three professors who teach about legislation and the interpretation of laws used their brief to contend that neither the 9/11 Resolution — that is, the Authorization for Use of Military Forces Joint Resolution adopted in 2001, and the USA Patriot Act, also enacted that year, authorized indefinite detention of those captured within the U.S.   They cited “two fundamental questions” that the Court address: whether the AUMF authorizes detention, even though it does not clearly say so, and how to reconcile the AUMF with th Patriot Act, which defines narrowly the President;’s power to detain aliens within the U.S.

The Constitution Project and the Rutherford Institute, in their joint brief, two private advocacy groups that promote individual rights, argued that the Fourth Circuit had issued a “fractured” 5-4 ruling, with no specific view of presidential authority claiming a clear majority.  The issue over detention power over an individual “who has never taken up arms against the Nation,” should be resolved by the higher court, they said.  The claim of presidential authority in this case, they added, “reach far beyond the scope previously recognized by this Court.”

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