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Today’s Filing in Al-Marri v. Spagone

Today Howe & Russell, in conjunction with our winter term Harvard Supreme Court Litigation Clinic, is filing this amicus brief on behalf of Constitutional Law Scholars in Al-Marri v. Spagone, No. 08-368.

The case concerns the President’s authority to detain individuals lawfully within the United States without trial on suspicion of conspiracy to engage in terrorism.

The brief — filed on behalf of Professors Bruce Ackerman, Erwin Chemerinsky, Richard A. Epstein, Richard H. Fallon, Pamela S. Karlan, Geoffrey R. Stone, Kathleen M. Sullivan, and Laurence H. Tribe — argues that the President lacks the authority to detain such individuals as enemy combatants without congressional authorization and that before confronting the serious constitutional questions surrounding the extension of the enemy combatant exception to the “war on terror,” the Court should require a clear statement from Congress.  Doing so, the brief asserts, not only enforces a constitutional presumption in favor of liberty and against executive detention outside the criminal justice process, but also encourages a useful interbranch dialogue over whether, and how, traditional principles should be modified in light of the new circumstances arising from the modern threat of terrorism.

The brief was written with Harvard Law students David Kessler, Logan Steiner, and Elisabeth Theodore.