Al-Marri defends ruling against detention
on Aug 15, 2007 at 7:24 pm
Lawyers for Ali Saleh Kahlah Al-Marri argued on Wednesday that the government should now have to take its chances in the Supreme Court if it wants to overcome a ruling that the military cannot capture and detain civilians living legally inside the U.S. and with ties to this country. In a filing (download here) in the Fourth Circuit Court, attorneys for the Qatari national being held in a Navy brig in South Carolina said a three-judge panel simply follow long-established law in ruling that the President has no authority to use the military to seize and detain a civilian captured here, not on a foreign battlefield. Thus, the brief argued, the Circuit Court should deny the government’s request for en banc review.
That ruling, besides being “in harmony with prior precedent,” simply “reaffirms an essential principle of our constitutional democracy: So long as the courts are open and functioning, civilians accused of criminal wrongdoing are subject to speedy public prosecution rather than indefinite military detention.” (The government called the panel ruling “radical” in seeking rehearing on July 27. A post discussing the government petition can be found here.)
The government believes, Al-Marri’s response noted, that he “was involved in serious unlawful conduct.” But, it went on, “that does not alter the essential facts. Al-Marri is a lawful resident of the United States. He was arrested on U.S. soil and at all times has been detained in jurisdictions…in which the civilian courts are open and operating. There is no allegation that al-Marri belongs to or is affiliated with the armed forces of any nation at war with the United States; was seized on or near a battlefield in which the armed forces of the United States or its allies were engaged in combat; was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or ever directly participated in any hostilities against United States or allies armed forces anywhere in the world. Rather, the allegation is that al-Marri is a civilian accused of criminal acts.”
Under those circumstances, the Circuit Court panel was right in concluding that the President has no authority, under federal law or inherent powers, to subject him to “indefinite military detention by the simple expedient of pronouncing him an ‘enemy combatant.’ ”
There is a clear line between civilian and military jurisdiction in the U.S., the brief contended, and that “must never be crossed in a constitutional democracy….The government has sought here an unprecedented and wholesale erasure of that line, which would allow a president, by the mere stroke of a pen, to avoid the criminal process in any case involving allegations of terrorism.”
“If the Supreme Court is inclined to endorse this unprecedented exercise of executive power on U.S. soil, it will take the case on certiorari, and so hold,” the brief asserted. “But there is no basis or need for rehearing this case en banc.”
Directly responding to the government argument that the panel ruling threatens national security, Al-Marri’s lawyers called that “an odd argument” since “al-Marri had already been in federal custody for eighteen months and, hence, incapacitated when the President declared him an ‘enemy combatant.’ Indeed, al-Marri was being prosecuted on criminal charges without the slightest hint his prosecution and attendant civilian detention imperiled America’s safety.”
