Ali Saleh Kahlah al-Marri
Court Cases

– Ongoing

The Brennan Center for Justice is representing Ali Saleh Kahlah al-Marri in two cases involving the U.S. government. Al-Marri v. Spagone (formerly Al-Marri v. Pucciarelli), a habeas corpus action, challenges the Executive's claim to unchecked authority to indefinitely detain a legal resident in the United States without any charge of wrongdoing.  In Al-Marri v. Gates, the Brennan Center is contesting Mr. al-Marri's treatment and conditions of confinement since he was declared an "enemy combatant" in 2003.

Al-Marri v. Spagone case documents | Al-Marri v. Gates case section 

Supreme Court Amici Briefs | Al-Marri in the News

Al-Marri v. Spagone

In Brief – Mr. al-Marri, a citizen of Qatar and legal U.S. resident, was arrested in Peoria, Illinois, in 2001 as a material witness in the FBI's investigation of 9/11.  In 2002, he was charged with credit card fraud and other criminal offenses.  Shortly before his criminal trial commenced in June 2003, President Bush declared him an "enemy combatant" and moved him to a Navy Brig in South Carolina, where the government has subjected him to torture and other cruel treatment. Over five years later, Mr. al-Marri still remains in solitary confinement without charge.

Question Presented – Does the Executive have legal authority to detain a legal resident arrested in the United States without charge by declaring him an "enemy combatant"?  This case challenges the President’s assertion of unchecked executive detention power over all individuals in the United States.

Procedural History – Counsel for Mr. al-Marri filed for certiorari review in the Supreme Court of the United States following the Forth Circuit Court en banc decision on July 15, 2008.  The U.S. Supreme Court granted Mr. al-Marri certiorari review on December 5, 2008.  The Petitioner's brief was filed on January 21, 2009. The following day, Preisdent Obama issued an executive memorandum to review the status of Mr. al-Marri's detention.  The Government's reply brief will be due on March 23, 2009.  Oral arguments are scheduled for April 27, 2009.

To schedule an interview with Aziz Huq or Emily Berman, counsel for Mr. al-Marri, please contact them directly at 212-992-8632 and 212-992-8659, or via email at aziz.huq@nyu.edu and emily.berman@nyu.edu, respectively.  Jonathan Hafetz has moved to ACLU's National Security Project.  To schedule an interview with him, please contact Mr. Hafetz at either 212-284-7321 (work) or 917-355-6896 (cell).

PillarsAdditional Detail – Ali Saleh Kahlah al-Marri is the only person detained as an “enemy combatant” in the United States. Mr. al-Marri, a citizen of Qatar and a legal U.S. resident, has been imprisoned without a trial and without due process since he was arrested in Peoria, Illinois, in December 2001. Mr. al-Marri came to the United States with his wife and five children to obtain a masters degree at Bradley University in Peoria, Illinois. After he was arrested, he was charged with credit card fraud and other criminal offenses. Mr. al-Marri asserted his innocence and prepared to contest the charges at trial. But, in June 2003, shortly before his trial was scheduled to commence, and on the eve of a hearing to suppress illegally seized evidence, President Bush signed a one-page order declaring Mr. al-Marri an “enemy combatant” and directing his transfer to a Navy Brig in South Carolina, where he was held incommunicado and interrogated for more than a year. At the Brig, Mr. al-Marri was subjected to torture and other cruel, inhuman, and degrading treatment. He remains in solitary confinement at the Brig under severe restrictions and has not seen his family in nearly six years, and has spoken to them only a couple of times.

Although Mr. al-Marri was arrested at his home in the middle of the United States, the Executive claims the power to hold him indefinitely as an “enemy combatant” based upon second- and third-hand allegations that he is an “al Qaeda sleeper agent.” No evidence was presented to sustain these allegations, many of which appear to have been gained through torture. Further, President Bush asserted that the Military Commissions Act of 2006 strips the federal courts of their historic habeas corpus review over his challenge to his detention. If so, any of the millions of immigrants in the United States can be swept off the streets and locked in a military jail without access to the courts.

Mr. al-Marri’s case challengs the president’s assertion of unchecked executive detention power over all individuals in the United States. In the Administration’s view, the president has the authority to arrest and detain individuals without charge, without due process, and without meaningful judicial review. Congress, however, has not authorized such unchecked executive detention authority and the Constitution squarely prohibits it.

The Brennan Center has long argued that America’s criminal justice system can and should handle cases in which individuals are accused of terrorism. (See Secrecy Problem in Terrorism Trials.) As the Brennan Center has explained, working within our established constitutional framework—a framework that dates to the Nation’s founding more than 200 years ago—is the best way to protect both liberty and national security.

On June 11, 2007, in a two to one ruling by the Fourth Circuit Court of Appeals, the Court held that the Executive lacks legal authority to detain Mr. al-Marri without charge; all three judges ruled that Mr. al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court.

On August 22, 2007, the Fourth Circuit Court of Appeals, granted the government's petition for rehearing en banc.  The case was argued by Jonathan Hafetz before the full Fourth Circuit on October 31, 2007. On July 15, 2008, the Fourth Cicuirt handed down its decision.  In response to the Fourth Circuit's decision, counsel for Mr. al-Marri filed a petition for certiorari in the Supreme Court on September 19, 2008. The U.S. Supreme Court granted Mr. al-Marri certiorari review on December 5, 2008. Briefs were filed on January 21, 2009. The following day, Preisdent Obama issued an executive memorandum to review the status of Mr. al-Marri's detention.  The Government's reply brief will be due on March 23, 2009.  Oral arguments are scheduled for April 27, 2009.

A more detailed description of Mr. al-Marri’s case and the important issues it raises can be found in Mr. al-Marri’s brief on appeal. Numerous amici, or friends of the court, submitted briefs in support of al-Marri’s challenge, including former senior Justice Department officials, prominent legal experts from a variety of fields, leading human rights organizations, and top civil rights and immigrant groups.

Lawrence S. Lustberg at Gibbons, P.C., Mark A. Berman at Hartmann Doherty Rosa & Berman, LLC, and Andrew J. Savage III of Savage & Savage, P.A., are co-counsel with the Brennan Center and ACLU.

Supreme Court Amici Briefs

On January 28, 2009, an array of organizations including former CIA officials, law enforcement agents, retired generals, the Muslim advocates, leading law professors and other groups filed amicus briefs in support of Mr. al-Marri. The briefs are posted below with excerpts. Click the links to download PDFs.

Brief of Amicus Curiae of American Bar Association in Support of Petitioner, click to download.

"[T]he constitutionally guaranteed criminal due process rights that are available to all citizens and person lawfully present in the United States may not be abrogated during military detention unless such persons are given the opportunity for prompt meaningful judicial review.  This review must include meaningful access to, and effective assistance of, counsel.  Also, any resulting detention can be permissible only if pursuant to an Act of Congress that establishes constitutionally permissible standards and procedures."

Brief of The Association of the Bar of the City of New York as Amicus Curiae in Support of Petitioner, click to download.

"[O]ur existing legal system is capable of handling such prosecutions.  Indeed, a large body of data from the past two decades demonstrates that terrorism prosecutions in the federal courts have overall led to just, reliable results without security breaches or other problems that threaten our Nation's safety."

Brief of the Cato Institute, The Constitution Project, and The Rutherford Institute, as Amici Curiae in Support of Reversal, click to download.

"Allowing the Executive to use the military to detain, without charge or trial, persons who are lawfully in the United States could give rise to manipulation of the civilian criminal justice system.  Such manipulation threatens the constitutionally protected liberty of every person who is lawfully in the United States, including American citizens."

Brief of Amicus Curiae Civil War Historians in Support of Petitioner, click to download.

"The parallels between [Ex Parte Milligan] and this case include both the illegal conduct charged and the statutory framework that applied to each case....  Then, as now, insistence on the rule of law was entirely consistent with a stern commitment to national security."

Brief of the Commonwealth Lawyers Association and Justice as Amici Curiae in Support of the Petitioner, click to download.

"[B]y considering the way in which the English courts have analyzed detention without trial, it is hoped that this Court will be assisted by the fundamental principles governing the issue in deciding how to approach and dispose of this appeal, which clearly raises matters of considerable public importance."

Brief for Constitutional, Criminal Procedure, and Other Legal Scholars as Amici Curiae in Support of Petitioner, click to download.

"[T]his Court's decisions concerning civil detentions provide no authority to indefinitely detain al-Marri without charge or conviction.... Criminal process, with its many safeguards is the primary and near-exclusive means by which the government may impose prolonged confinement.  And so it must remain, lest the government resort to civil detention to lower its burden of proof or free itself from other constraints when pursuing goals that are rightly the object of criminal prosecution."

Brief of Constitutional Law Scholars Bruce Ackerman, Erwin Chemerinsky, Richard A. Epstein, Richard H. Fallon, Pamela S. Karlan, Geoffrey R. Stone, Kathleen M. Sullivan, and Laurence H. Tribe as Amici Curiae in Support of Petitioner, click to download.

"In light of the Constitution's allocation of wartime authority, [the Supreme] Court should require clear authorization from Congress before confronting the difficult constitutional questions that could arise from applying the enemy combatant concept to individuals like petitioner here. Requiring clarity from Congress avoids possibly unnecessary constitutional rulings in a delicate area, while also honoring the Constitution's strong presumption in favor of individual liberty and criminal process.  It also vindicates Congress's prerogatives and, most importantly, encourages an inter-branch dialogue regarding the necessity, wisdom, and limits of any expansion of military detention authority over the domestic population."

Brief For Amici Curiae Experts in the Law of War, click to download.

"[T]he AUMF authorizes only what established law-of-war principles clearly and unmistakably authorize; to view it as authorizing more would be highly problematic, especially as applied to individuals (like Yaser Hamdi and Petitioner here) who unquestionably are entitled to the protections of the U.S. Constitution."

"[T]here is no law-of-war principle-much less a well-established one-that furnishes independent authorization for his military detention in such circumstances.  Any such authorization, if it exists, must come from domestic law."

Brief Amicus Curiae of Former Federal Judges and Former Senior Justice Department Officials in Support of Petitioner, click to download.

"[The] unprecedented expansion of Executive authority within the borders of the United States is not only at odds with more than 200 years of history, but it is wholly unnecessary.  The United States criminal justice system is well equipped to prosecute and imprison people who plan or commit terrorist acts; in recent years, the United States has successfully prosecuted many terrorists in the federal courts."

"As long as [the Fourth Circuit's] ruling stands, it will be a grave threat to the civil liberties of American citizens, an omnipresent cudgel that may be wielded by the Executive Branch at its discretion against anyone suspected of posing a threat."

Brief Amici Curiae of Former National Security Officials and Counterterrorism Experts in Support of Petitioner, click to download.

"Treating suspects seized in the United States according to our long-held principles, presenting charges and the opportunity for a trial, affirms America's commitment to its ideals and discredits terrorists' lies, hampering recruitment and enhancing our national security.  In contrast, indefinite military detention of these suspects fuels the narrative that terrorists promote and undercuts our own."

Brief of Former United States Diplomats J. Brian Atwood, Harry G. Barnes, Jr., F. Allen "Tex" Harris, Samuel F. Hart, John L. Hirsch, Genta Hawkins Holmes, Gilbert D. Kulick, L. Bruce Laingen, Elijah Parish Lovejoy IV, Laurence E. pope, Paul K. Stahnke, Alexander F. Watson as Amici Curiae in Support of the Petitioner, click to download.

"[A] decision upholding our government's right to arrest and imprison anyone within its borders, without charge, will not only undercut our ability to convince dictatorial regimes to abandon similar practices, it will substantially undermine efforts to restore our international reputation and to obtain more cooperation from our allies in combating terrorism."

Brief for Amici Curiae Founding-Era Historians and Experts in American Legal History in Support of Petitioner, click to download.

"[T]he circuit court's holding is inconsistent with the Founders' understanding that military intrusion into domestic civilian affairs must be limited to preserve the People's liberty."

"[I]t is evident that the beliefs and practices of the Founders demonstrate a heavy presumption against military detention for citizens and lawful resident aliens captured in the United States, and that such detention would be sanctioned, if ever, only if authorized by the most unambiguous statement from Congress."

Brief of Historians and Scholars of Ex Parte Quirin as Amicus Curiae in Support of Petitioner, click to download.

"The Government relies on [Ex Parte] Quirin to support its assertion of power to seize and detain - indefinitely and without criminal charge or trial - a lawful resident of the United States suspected of affiliation with a terrorist organization.  The historical consensus developed by amici and others demonstrates that Quirin cannot, and should not, bear that weight."

Brief of Amici Curiae Human Rights and Religious Organizations in Support of Petitioner, click to download.

"Amici fully agree with Petitioner that the AUMF cannot be construed, consistent with the Constitution or the laws of war, to authorize the detention of a person such as al-Marri, who was apprehended by domestic law enforcement officials thousands of miles from any battlefield."

"Yet even assuming al-Marri could be considered a 'combatant' under the AUMF, the government has violated the conditions necessary to the exercise of any asserted detention power."

Brief of Amici Curiae Muslim Advocates, The Sikh Coalition, American-Arab Anti-Discrimination Committee, Japanese American Citizens League, and South Asian Americans Leading Together in Support of Petitioner, click to download.

"Much as the Founding Fathers perceived from their own experience with the English Crown, the lessons of this more recent experience teaches again that legal systems that permit detention without charge or trial impose great costs on liberty: they result in the widespread detention of innocent people; they tend to be applied discriminatorily against radical, ethnic, religious or ideological groups; and they are closely associated with other abuses, such as the physical mistreatment and torture of detainees."

Brief of Amicus Curiae The National Association of Criminal Defense Lawyers in Support of Petitioner, click to download.

"The notion that Congress meant to deploy a rarely exercised military detention power devoid of legal protocols against its own constituents in order to better secure their safety is the less credible the more its practical effects are considered....  The benefits of a largely unreviewable domestic military detention power are too speculative at best, and its disruptions too certain, to justify so radical a departure from criminal due process-a bedrock principle of our system of limited government."

Brief of Retired Military Officers and The National Institute of Military Justice as Amici Curiae in Support of the Petitioner, click to download.

"A dramatic departure from the [Posse Comitatus Act of 1878], such as the military detention of civilians, has profound implications for the future role of the military and its relationship with civilians.  History is replete with examples of the danger inherent in permitting the military to be routinely involved in domestic law enforcement."

Brief of William N. Eskridge, Jr., Daniel A. Farber, and Eric Lane as Amici Curiae in Support of Petitioner, click to download.

"Under the canon of constitutional avoidance, this Court should avoid interpreting the AUMF in a manner that would raise difficult constitutional questions, both as applied to resident aliens such as al-Marri and as applied in future cases to U.S. citizens.  And, ...this Court should not interpret the general provisions of a wartime measure to restrict the domestic liberty of citizens unless such an intent is clearly and unmistakably expressed in the text of the statute."

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Related Case Documents

Fourth Circuit 28J Filings

Supreme Court


Fourth Circuit En Banc

Fourth Circuit Decision and Related Material

Fourth Circuit Party Briefs on Merits
Fourth Circuit Party Briefs on Jurisdiction

Fourth Circuit Amicus Briefs

Opposing Motion to Dismiss:

On the Merits:

Fourth Circuit Joint Appendix

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Al-Marri v. Gates

In Brief – Mr. al-Marri was placed in solitary confinement upon his transfer to the U.S. Naval Brig in South Carolina, in June 2003, and forced to endure painful stress positions, extreme sensory deprivation, as well as threats of violence and death while being detained incommunicado for 16 months. In August 2005, Mr. al-Marri filed this lawsuit to challenge his unlawful and unconstitutional conditions of confinement and mistreatment.

Procedural History – In the course of this lawsuit, the government unlawfully destroyed videotapes and other important electronic and paper records documenting the military's interrogation and treatment of Mr. al-Marri. To prevent futher destruction of the 50+ interrogation recordings and other evidence (see New York Times article on tape destruction), attorneys for Mr. al-Marri filed a motion with the Court to prevent further destruction of evidence. That motion is still pending.

In March 2008, Mr. al-Marri requested an interim order addressing his prolonged isolation, which is irreversibly harming his mental health, denying him meaningful contact with his family, and preventing him from participating meaningfully in his defense. In April 2008, a magistrate judge recommended denial of the motion. Mr. al-Marri has appealed to a district judge. That appeal is still pending.

Related Case Documents 

Conditions of Confinement Preservation Motion

Motion for Interim Relief from Prolonged Isolation and Other Unlawful Conditions of Confinement

Motion to Dismiss Complaint

Complaint

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Al-Marri in the News

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Tags: Justice, Liberty & National Security, Detention & Habeas Corpus