ACLU Asks Supreme Court To Outlaw Indefinite Detention Of U.S. Residents

January 21, 2009 12:00 am

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Case Challenges President’s Authority To Hold Ali Al-Marri At Military Brig

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WASHINGTON – The Supreme Court should rule it illegal for the president to indefinitely hold U.S. residents in military detention, according to a brief filed today by the American Civil Liberties Union. In its brief filed in Al-Marri v. Spagone, the ACLU asks the Court to overturn a federal appeals court decision giving the president sweeping power to deprive individuals living in the United States of their most basic constitutional rights by designating them “enemy combatants.” Ali Saleh Kahlah al-Marri, the petitioner in the case, has been detained in solitary confinement at a Navy brig in South Carolina since June 2003.

“It is clearly illegal to imprison legal residents of the United States without trial. It is also the type of false choice between our safety and our ideals that has pervaded America’s approach to fighting terrorism for the past eight years,” said Jonathan Hafetz, staff attorney for the ACLU and lead counsel to al-Marri. “We are confident that upon review, the Court will strike down this radical departure from our nation’s most basic values and traditions.”

In 2007, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that the government cannot hold individuals arrested in this country in military detention without charge. However, in July 2008, the full appeals court overturned that ruling in a narrowly divided decision.

“This case provides the Obama administration with an early and critical opportunity to repudiate the abuses of the past eight years and restore the rule of law,” said Steven R. Shapiro, Legal Director of the ACLU.

Al-Marri, a Qatari national and legal U.S. resident, was first arrested in December 2001 at his home in Peoria, Illinois, where he was living with his wife and children. His case was scheduled to go to trial in July 2003, but was halted on the eve of trial when President Bush took the extraordinary step of designating al-Marri an “enemy combatant” and transferring him to a military brig in South Carolina. At the brig, al-Marri was detained incommunicado for 16 months and subjected to torture and other abuse. The government continues to hold al-Marri indefinitely as an “enemy combatant” based upon uncorroborated allegations that he has ties to al-Qaeda, although no evidence has been presented to sustain these allegations. He is the only remaining person detained as an “enemy combatant” in the United States.

The Obama administration’s brief is currently due on February 20. The new administration has not yet stated its position on the issues in this case.

Attorneys in Al-Marri v. Spagone are Hafetz, Shapiro, Jameel Jaffer and Hina Shamsi of the ACLU; Aziz Huq and Emily Berman of the Brennan Center for Justice at NYU School of Law; Andrew J. Savage, III of the law firm Savage & Savage, P.A.; John J. Gibbons and Lawrence S. Lustberg of the law firm Gibbons, P.C.; Sidney S. Rosdeitcher of the law firm Paul, Weiss, Rifkind, Wharton & Garrison, LLP, and Mark A. Berman of the law firm Hartmann, Doherty, Rosa, Berman & Bulbulia LLC.

The ACLU’s Supreme Court brief is available online at:

More information about Al-Marri v. Spagone, including legal documents and a video of Hafetz speaking about the case, is available online at:

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