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Al-Marri brief: Silence does not confer detention power

Lawyers for a Qatari national, held in U.S. military captivity for more than five years as a terrorism suspect, argued on Wednesday that Congress could not — merely by remaining silent – grant the President the authority to order his detention without criminal charges. But, even if Congress had given such authority, it would be unconstitutional, the attorneys argued.

Filing of the new brief, in Al-Marri v. Spagone (08-368), a case the Court will hear in March, sets the stage for the new Obama Administration to file its legal views by late February (unless it seeks and obtains a delay of its filing deadline.)  The American Civil Liberties Union, handling the case of Ali Saleh Kahlah Al-Marri, has provided a link to download its brief at this site.

The 57-page brief is heavily focused on argument about what Congress did, and intended to do, when it passed the “9/11 Resolution” soon after the terrorist attacks on the U.S.  (the measure is formally known as the “Authorization for Use of Military Force”).  Only ten pages of the brief are devoted explicitly to constitutional arguments, disputing Congress’ power to authorize the long-term detention of individuals captured inside the U.S. and disputing the President’s “inherent power” to order such detentions.

On the scope of the AUMF, the brief makes three basic points: first, that Congress may confer domestic military detention power on the President only if it does so by “an explicit statement” to that effect, whether “in time of crisis” or “in time of calm”; second, that the resolution contains no such statement and that, indeed, on the day after it passed the AUMF, Congress began work on what would become the Patriot Act, expressly limiting domestic detentions to a very brief interval; and, third, that, if there is any doubt about the scope of AUMF, it must be interpreted narrowly or else it would be unconstitutional.

“If the Court finds that no other interpretation of the AUMF is fairly possible, then the asserted extension of the AUMF’s reach to authorize al-Marri’s military detention must be invalidated,” the brief asserted. “The Constitution limits the domestic exercise of military jurisdiction inside the United States to individuals who fall within a well-defined and traditionally understood legal category of combatant under precedent and established law-of-war rules.”  That category, it added, does not include individuals such as Al-Marri, “seized and detained in the United States, far from any active hostilities, based solely on the assertion that they supported or planned to engage in terrorist activities.”

The brief also argued that, if the government is required to limit its handling of individuals like Al-Marri to criminal prosecution in the regular courts, those courts are entirely equal to the task.

The Obama Administration, while maaking very clear that it plans to close the U.S. military detention facility at Guantanamo Bay, which holds only detainees captured overseas, has given no indication of its views on presidential or military authority to detain individuals captured inside the U.S., who have a legal right to be in the country even if they are citizens of another nation.  Under the Court’s present schedule, the Administration’s views on Al-Marri and the issues his case raises are due at the Court on Feb. 20.