U.S. defends domestic detention
on Oct 31, 2008 at 9:04 pm
Moving to speed up action in the Supreme Court on the President’s power to order the military detention of an individual suspected of terrorism and captured inside the U.S., the Justice Department on Friday asked the Court to deny review of the case of Al-Marri v. Pucciarelli (08-368). The new brief in opposition can be found here.
Only eight days ago, the Department had obtained an added 30 days to file this brief — that is, until Nov. 24. Thus, the filing Friday was more than three weeks ahead of that new deadline. With that filing, the Department made it more likely that the Court could act on the case fairly soon, probably in November, and, if it decides to hear it, to decide it in the current Term.
The case involves Ali Saleh Kahlah al-Marri, a Qatari national who was liviing legally in Peoria, Ill., when he was arrested on criminal charges, but then was turned over to the military under Presidential order and has been held in a Navy brig in South Carolina for more than five years. He faces no criminal charges, although the Department told the Supreme Court Friday that al-Marri “entered the United States to plan and carry out hostile or war-like acts on behalf of al Qaeda.”
Although the new brief makes a full defense of the President’s domestic detention authority, at least in a case like al-Marri’s, the main thrust of its written argument at this stage is that his appeal is premature, and that the Court should allow time for him — mandated by the Fourth Circuit Court — to test his detention in a new habeas proceeding in District Court in South Carolina.
The brief, filed by Solicitor General Gregory G. Garre, said that the government does not agree with the Circuit Court that al-Marri is entitled to a fuller opportunity to challenge his detention. But it said it was not challenging that aspect of the Circuit Court ruling “at this time.”
The case is in a preliminary stage now, the brief added, and the Justices should allow it “to go forward” in District Court.  Al-Marri “will be given a full opportunity to challenge the government’s evidence. But there is no reason for the Court to short-circuit that process here.”
The case, the brief added, will not affect others, because al-Marri is the only detainee being held inside the U.S. Thus, it asserted, “this Court should not rush” to rule “unnecessarily” on presidential detention authority in such a case.
The Justice Department added to its brief a previously classified 19-page statement by a government anti-terrorism official outlining the government’s suspicions about al-Marri. In the brief, the Department summarized that report this way:
“[Al-Marri] trained with al Qaeda forces in Afghanistan, had direct contact with the masterminds of the September 11, 2001, terrorist attacks, volunteered to undertake a martyr mission on behalf of al Qaeda, received funding from a key September 11 financier, was dispatched by al Qaeda leaders to the United States to commit or facilitate hostile acts, and, when seized in the United States, had a laptop computer with highly technical information about the use of chemicals such as cyanide as weapons of mass destruction and evidence of email communcations with top al Qaeda agents.”
The en banc Fourth Circuit Court upheld the President’s power to order military detention of al-Marri, with the key opinion saying that the post-9/11 Resolution adopted by Congress “grants the President the power to detain enemy combatants in the war against al Qaeda, including belligerents who enter our country for the purpose of committing hostile and war-like acts such as those carried out by the al Qaeda operatives on 9/11.”
The opinion, though, also concluded that al-Marri had not had a sufficient opportunity to challenge the evidence the government put forth to justify the presidential decision to designate him as an “enemy combatant” and thus to hold him indefinitely without criminal charges.
Because al-Marri was not captured on a battlefield, but within the U.S., that opinion concluded, he was entitled to “the normal due process protections available to all within this country, including an opportunity to confront and question witnesses against him.”
The government brief argued that the President not only has domestic detention power, over individuals in al-Marri’s situation, under the 9/11 Resolution, but also under the President’s powers as commander-in-chief.
But, it asserted, if al-Marri succeeds in his opportunity to further challenge his designation as an enemy combatant, “there will be no need for this Court to consider the purely legal question of the President’s authority.” Al-Marri, it added, is seeking to raise “far-reaching constitutional questions that this Court may not need to reach at all depending on the outcome of the proceedings on remand or that could be reshaped by the proceedings on remand.”
Al-Marri’s counsel will have an opportunity to reply before the Court considers whether to grant review.
